Criminal Law Outline


Issue Checklist

I. Satisfaction of the Act Requirement.
1. Passive acts.
2. Omission to act (establishment of a duty).
3. Voluntary acts.
4. Punishment of Status.
5. Vagueness.

II. Satisfaction of Mens Rea.
1. Strict Liability
2. Mistake of Fact
3. Mistake of Law
· Mistake of Governing Law
· Mistake of Non-governing law.

III. Causation.
1. But-for factual cause
2. Proximate or legal cause
3. Causation by omission (return to duties).

IV. D killed the victim.
1. Murder (MPC vs. CL – establishment of malice).
2. Voluntary Manslaughter
3. Involuntary Manslaughter

V. Attempt.
1. Attempt Liability (MPC vs. CL)
2. Impossibility [Factual vs. Legal (pure, hybrid, inherent, Fletcher’s rule)]. ®MPC vs. CL

VI. Complicity (Accomplice Liability)
1. Act
2. Mens Rea
3. CL (Natural and Probable Consequences Rule) vs. MPC

VII. Conspiracy
1. Act (MPC vs. CL)
2. Mens Rea (When can purpose be inferred from knowledge)
3. Pinkerton Rule
4. How conspiracy plays out.


a) The need for an actus reus:
· At the center of every crime, there must be an “overt” act; mere intention or passive acts alone cannot be punished.
· Formulation of a Defense Argument in Actus Reus cases: “The definition of the crime goes beyond the legislature, as this statute does not define a crime because it fails to…”
· Possession is an overt act.
Actual Possession-To exercise dominion and control over an item to the exclusion of everyone else.
Constructive Possession- The ability (you do not necessarily have to have physical control over the item, just the ability) to exercise dominion and control over an item coupled with the intent to do something.
Elements of consideration for Constructive Possession:
1. How does D have the item? (Ability to possess)
2. Does D possess the mens rea for the item? (Intent to possess)
3. Where is the item in relationship to D?
4. What is the relationship between the place of the item and D?
· Mens Rea for Possession:
Whosoever knowingly possesses the illegal character of an item. You could possess something with out even knowing the item is illegal. (Ex. Cops are in your kitchen and see a marijuana plant, but you thought it was oregano.)

a) The keeping of a place, a passive act, is not a sufficient act to give rise to criminal responsibility: Proctor v. State – D found not guilty after having bought a place to sell liquor, but had not actually sold any. Cannot punish a D for the “keeping of a place” because it fails to insure that the individual has made a choice to carry out his criminal intent. If the State won Proctor, it would be like saying, “whoever breathes, with the intent of larceny, is guilty of a crime.”
b) THE CAPABILITY TO TERMINATE POSSESSION ESTABLISHES CONSTRUCTIVE POSSESSSION: People v. Valot (note case pg. 130) – Hotel room, registered to D, where drugs were found. D said he did not know of drugs in room. D found guilty even though the drugs weren’t his, b/c he was in “control” of the drugs b/c it was D’s hotel room. Therefore, D could have terminated possession.
c) CAPABILITY TO EXERCISE DOMINION AND CONTROL OVER AN ITEM ESTABLISHES CONSTRUCTIVE POSSESSION: Earle v. United States (note case pg. 131) – D found lying down supposedly asleep in a basement room, next to a room of cocaine. D guilty b/c relationship b/w him and drugs and knew of the location and could’ve exercised dominion and control.
d) Hypo (what is a place?): 1. A van as “a place” – Perhaps this is not a place.
2. Proctors’ mother’s house – it would not be his place to keep.
e) Hypo: Is a guy walking down the street with a hammer and the intent to break into a liquor store like Proctor? Hammer guy is closer to committing the act as he has tools and is on the way to commit a crime. Proctor was keeping a place, which everyone has to do. Hammer guy was doing something that not everyone has to do. Regardless, there must still be an over act, which manifests the intent.

b) Omissions:
· A failure to act is punishable when you had a legal duty to do something, and you did not.
· A legal duty is established when (as outlined in People v. Jones):
a) LEGISLATION: A Statute established by legislation that imposes a duty to care for another.
b) CONTRACT: Contractual duty, in which principles apply, to care for another.
c) RELATIONSHIP: As between protector and protectee. One stands in a certain status relationship to another.
d) VOLUNTARY CARE: One voluntarily assumes the care of another and so secludes the helpless person from the likelihood that another would render assistance.
e) CREATION OF PERIL: a situation where a D’s own act gives rise to a legal duty (whether innocently or not).

a) Good Samaritan Laws: Citizens must act in a way to prevent severe harm to other citizens if they can avoid causing harm to themselves.
b) WHEN IS A LEGAL DUTY ESTABLISHED?: Jones v. United States (not guilty b/c no legal duty to care for baby )– Outlines when a legal duty is established.

c) The Requirement of Voluntariness
· A D must voluntarily commit the act that constitutes every element of the offense.
a) INVOLUNTARY ACTS ARE NOT CRIMINALLY PUNISHABLE: People v. Newton – D found not criminally liable because he did not possess his gun in NY voluntarily and he did not voluntarily appear in NY.
b) A D MUST COMMIT EVERY ELEMENT OF AN OFFENSE: Martin v. State – The act of D being drunk in a public place was involuntary (officers took him out of his home while intoxicated, then took him on a public highway, and charged him). Although he voluntarily got drunk, he did not voluntarily appear in public.
c) Reflexive acts or convulsive acts may be a defense to criminal liability (AUTOMATISM): People v. Grant – Conviction of Grant (single element offense) was reversed because of defense of b/c he engaged in aggravated battery while unconscious of his activity.
Exception to AUTOMATISM: A D may be guilty if he/she knew they were prone to engage in dangerous activity while unconscious or asleep and caused him/her to become unconscious or asleep.

d) The Prohibition of “Status” Crimes
· You cannot punish someone for being something, as in a status, you can only punish them for doing something, as in an overt act.
Status – An involuntary and permanent condition, over which the individual no control.
Condition – A set of circumstances that is not necessarily involuntary or permanent. It is merely what the situation happens to be.

a) PUNISHMENT OF STATUS IS UNCONSTITUTIONAL (Violation of 8th Amendment: cruel and unusual punishment) – Robinson v. California: (1962) Drug use creates a status situation because is a sickness. Therefore, using narcotics is not punishable because it is not voluntary.
J. White’s Dissenting Opinion – The statute does not punish for the sickness of addiction. Rather, the statute punishes the act of using drugs.
b) ACTS THAT ARE THE PRODUCT OF REALISTIC CHOICE WILL BE PUNISHED -- Powell v. Texas: (1968) Does not punish Powell for his status as an alcoholic. It punishes him for being drunk and appearing in public. He had a choice not to appear in public. He had somewhere, other than public, to go.
Distinguishing from Pottinger – Court in Powell does not punish for being drunk. It punishes him for being in public. Unlike the homeless, Powell had a place to go while drunk, other than public.
J. White’s Concurring Opinion – The alcoholic with an irresistible urge to drink should not be punished for drinking or being drunk. However Powell is convicted, not for being an alcoholic, but for knowingly failing to take precautions against the criminal act of being drunk while in public.

c) ACTS THAT ARE NOT THE PRODUCT OF REALISTIC CHOICE CANNOT BE PUNISHED – Pottinger v. City of Miami: (1992) To punish the homeless, who have no place to go, for life-sustaining activities would be to punish their status as homeless. If you’re homeless, then life-sustaining activities are involuntary.
d) STATUS vs. CONDITION: Joyce v. San Francisco – (1994) When the homeless are punished, they are punished for their act, not for being homeless. Homelessness is a condition, not a status (involuntary) because it is affected by the acts of 3rd parties. Court states that a status exists when the discretionary acts of a third party (a city’s failure to provide adequate housing) do not change who or what you are. Ex. Race, ethnicity, age, etc.
*Professor’s Note: “If you need to show that a situation is a status, refer to the Joyce court.”

Overall thoughts: Robinson and Powell should be grouped together (opposing one another) because they are Supreme Court decisions. Joyce and Pottinger are modern day examples of courts struggling with the ideas outlined in Robinson and Powell. [Group them as Robinson vs. Powell and Pottinger vs. Joyce, while remembering the chronological significance.]

Possible Hypo: The homeless are getting punished. Consider whether or not they can be classified as a status by evaluating whether their control over the situation is voluntary or involuntary. Ask what degree of control they have over their situation?

e) Legality
· You cannot punish someone without a law that makes his or her conduct criminal.
· The common law may be a source of criminal law where statutes fail to adequately punish, but the common law has its limitations i.e. there is a constitutional limit placed upon the courts when defining a crime.

a) COMMON LAW IS FLEXIBLE ENOUGH TO PUNISH WHERE A STATUTE DOES NOT: Commonwealth v. Keller – Although there was no exact statute or precedent dealing with the indecent burial of dead bodies in the state of Pennsylvania, the court held that the common law is broad enough to fill in gaps and allow punishment (by referring to a statute allowing the introduction of CL). Specifically, punishment, as a misdemeanor, any act which directly injures or tends to injure the public to such an extent that the state must intervene.
b) LIMITATIONS OF THE COMMON LAW: Keeler v. Superior Court –You can not punish a defendant’s action if it occurred prior the enactment of a statute or law. To punish past action would result in the unforeseeable judicial enlargement of a criminal statute, which violates the due process clause (lacks fair warning to potential offenders that their conduct is punishable). In this case, D who killed a fetus in his wife’s womb, is innocent b/c no statute existed to criminalize his conduct prior to his act. It would be unfair and allow no due process if D was convicted.

f) Specificity
· A statute is vague if persons of common intelligence must guess at its meaning and differ as to its application. Also, a reasonable person does not know what a statute does and does not cover.
· The Vices of Vagueness:
1. You don’t or couldn’t know if your conduct would be applied to a statute.
2. It chills the exercise of 1st Amendment freedoms in that the existence of a vagueness statute force an individual to worry about engaging in conduct which MIGHT be deemed criminal by law.
3. Liberty – Vague statutes vest too much discretion into enforcement officials so they could decide on a whim to enforce a statute one person and not another.

a) A STATUTE/ORDINANCE THAT FAILS TO ADHERE TO THE ACT REQUIREMENT IS VAGUE: Ricks v. District of Columbia – (1968 – US Court of Appeals) D was initially convicted of vagrancy when it appeared she was soliciting prostitution. The language defining vagrancy was unconstitutionally vague (did not define an act), interfered w/individual liberty, and failed to notify individuals of what conduct is criminal. An individual does not have the chance to change their mind. (Proctor is relevant – some type of act is needed).
b) A STATUTE IS UNCONSTITUTIONALLY VAGUE WHEN IT FAILS TO PUT AN INDIVIDUAL ON NOTICE THAT THEIR CONDUCT IS CRIMINAL: City of Chicago v. Morales – (1999 – US Supreme Court) D was initially convicted of loitering with known “criminal street gang members.” This loitering law was found unconstitutionally vague because: (1) under no set of facts does it put an individual on notice that their conduct is criminal, (2) it was vague on face, and (3) failed to limit the discretion of enforcement individuals.
JINGLE: A vague statute that punishes, without giving notice and defining for a person what overt act or omission is punishable under the statute, is unconstitutional and is a violation of the due process clause of the 14th Amendment.

II. THE GUILTY MIND (The mens rea requirement)
· Crimes containing a mens rea are more blameworthy and deserve harsher punishment.
· Punishment is greater when conduct is accompanied by harmful intent.
· Definition of Harmful Intent:
1. The desire to harm others or violate some other social duty.
2. Disregard for the welfare of others or some other social duty.
· Punishment for Harmful Intent (BLAMEWORTHINESS):
1. GUILTY MIND – “mental element” – mental states of the guilty minds are purpose, knowledge, recklessness, and (negligence).
2. RESPONSIBILITY – the allowance of an affirmative defense such as duress or insanity eliminates responsibility.

a) The Requirement of a Guilty Mind
· Strict Liability – Regulatory or Public Welfare offenses. Punishment for a crime without the establishment of mens rea. Often statutes that dispose of mens rea do not include language like “whoever purposely or knowingly…” The MPC does not recognize S/L. Rather, the MPC states that when there is no mens rea language in a statute, then purposely, knowingly, and recklessly are assumed. The MPC recognizes only “violations” (e.g. speeding) that do not accompany jail time.
· Strict Liability exists because:
1. It is tough to determine a D’s mindset.
2. Easier to regulate.
3. It may punish a few innocent individuals, but it is worth it to protect the public at large.
· Statutory Interpretation Argument:
1. What is the intent of the legislature?
-Is there anything in the fact pattern to show that strict liability is intended? What does the factual evidence show?
2. Is it regulatory in nature?
-Is the statute designed to protect a public who is otherwise incapable of protecting itself?
3. Would the statute criminalize an apparently broad range of conduct that looks innocent and catch people that are in fact innocent?
-Is the D in responsible relation to prevent the harm?
4. Is the penalty severe in nature?
-If severe, then it is more likely that the statute intended to include mens rea. What is severe? Generally any sentence that carries jail time with it.
-If not severe, then it is less likely that mens rea was intended to be included. The penalty will most likely be some type of monetary penalty.
-Does it look like a common law crime (crime against person or property like assault, homicide, rape, deprivation of property)?
· Prosecution Argues: “The legislature intended to dispense with mens rea because… (Consideration of severity of penalty, it poses a threat to the public). Congress intended to put the burden on the individual to learn what is legal and what is not. The statute is used for a regulatory purpose and is designed to protect a large class of people that are otherwise incapable of protecting themselves. The D owes a duty of care to the public. D was in responsible relation to the harm – you must have the power to prevent the harm.
· Defense Argues: The principles of the common law presume mens rea. Therefore, the legislature did not intend to dispense with mens rea because if it did, then it violates the due process clause of the 14th/5th Amendment. It is unlikely that Congress intended such a strict penalty without proof of mens rea.
· Example Argument: (Dissent in Dotterweich): A person should not be punished unless that person has made a choice to do good or evil. To ignore this is to restrict the liberty of an individual that may be wholly innocent. An individual without a guilty mind should not be punished unless that intent is made abundantly clear in the statute.

a) STRICT LIABILITY as Public Welfare/Regulatory Offenses:
1. STRICT LIABILITY ACT: US v. Balint – D, a pharmacist, found guilty for selling unregistered drugs. D failed to file the proper forms with the IRS to legalize the selling of D’s drugs. Winning argument: Congress intended to put the person in the position to know whether or not their actions were legal because they are initially capable of preventing the harm.
2. STRICT LIABILITY OMISSION: US v. Dotterweich – D, the president of a drug company, found guilty because his company was selling misbranded drugs. Court considered the minor penalty, which is not regarded by the community as involving significant moral impropriety. Winning argument: D failed to act where he had a duty to and stood in responsible relation to public danger. This connotes some type of ability to control the events necessary to prevent the harm.
3. NO DEFENSE OF BEST EFFORTS: State v. Arizona Mines – D held strictly liable for allowing smoke to escape into the air, which violated environmental laws. D claimed they were powerless to prevent the harm because the spent a lot of money to keep the pollution out of the air. Court said that your best efforts are not the same as being powerless to prevent the harm and is therefore no defense against strict liability.

1. PERSON CANNOT PREVENT THE HARM: US v. Park – D found guilty for storing contaminated foods prior to their shipment. D owed a duty of care to the public, stood in responsible relation to the harm, and was found to have been in the position to prevent it. JINGLE: if a person is not in a position to prevent the harm (powerless), then they have a defense under the statute.
2. STRICT LIABILITY MAY NOT APPLY WHEN THE OFFENSE LOOKS LIKE A CL CRIME: Morissette v. US – D took and sold spent bomb casings he found, believing them abandoned, from an Air Force practice bombing range. D was not held strictly liable. When an offense relates to a common law crime (larceny in this case), the Legislature is more likely to adopt a statute that relates to that common law crime.
3. NOT LIABLE FOR THE ACTIONS OF YOUR NEIGHBOR: People v. Hutchinson – D found not liable when, after an accident, a half-filled bottle of whiskey was found in D’s car. Normally it is better to the burden on the person capable of preventing the harm. But, this court introduces the necessity of the element of knowledge. D would have to know that his passenger was drinking to be found liable.
4. FAILS TO PUT AN INDIVIDUAL ON NOTICE: Staples v. US –D found not liable for possessing an automatic weapon by claiming that he did not know the gun he had was capable of firing automatically. D argued that the statute failed to put him on notice that his conduct was criminal. JINGLE: A statute that would criminalize a broad range of apparently innocent conduct by “casting a broad net” is more likely to be interpreted to include mens rea.
*Other potential notable factors of S/L, as noted by J. Stevens: Consider the language, its history, the precedent cases that adopted the statute, and the testimony leading to its adoption.

b) Categories of Culpability
· Common Law Culpability (Some state of mind must be present)
1. Purpose: It is the D’s conscious object to bring about a desired result.
2. Knowledge: D is aware of the practical certainty that his conduct will bring about a specified result.
-Attendant Circumstances – you must have knowledge of the fact that your conduct is in fact a crime.
-Willful Blindness – If you made sure you did not know of the circumstances that made your conduct a crime, then you are guilty.
3. Recklessly: Conscious disregard of a substantial and unjustifiable risk.
4. Negligent: The person was stupid. D should be aware of the risk that their actions may bring about a harmful result.
· Model Penal Code §2.02 (2) Culpability Definitions
1. Purposely:
a) D is aware of such circumstances or hopes they exist.
b) It is his conscious object to engage in conduct of that nature.
2. Knowingly: (Acting with substantial certainty)
a) D is aware that such circumstances exist.
b) D is aware that it is practically certain that his conduct will cause such a result.
c) D is aware that his conduct is of that nature.
3. Recklessly
a) D consciously disregards a substantial and unjustifiable risk that the material element exists.
b) D consciously disregards a substantial and unjustifiable risk that the material element will result from his conduct.
4. Negligently:
a) He should be aware of a substantial and unjustifiable risk that the material element exists.
b) He should be aware of a substantial and unjustifiable risk that the material element will result from his conduct.

a) THE MENS REA FOR ONE CRIME DOES NOT SATISFY/TRANSFER TO THE MENS REA OF ANOTHER CRIME: Regina v. Faulkner – D stole rum but was found not liable for setting fire to a ship because he lacked each requisite mens rea (feloniously, unlawfully, and maliciously) for the crime. Just because he possessed the mens rea for taking the rum does not mean he had the mens rea for setting fire to the ship.

c) Mens Rea and Mistake
· Mistake of Fact: A D is ignorant of a fact that bears upon his culpability.
· Diagram (assuming S/L does NOT apply):

Mistake of Non-Governing Law
is treated like …
1. Affirmative Defense ¬MISTAKE OF FACT® 3. Strict Liabtility
¯ ¯ ¯
Crime must be general intent 2. Negates Mens Rea Mistake does not matter
¯ ¯
Mistake is both honest and reasonable Crime is specific intent
D must prove it was an honest mistake.
Valid defenses: Defense of diminished capacity
and defense of voluntary intoxication.

a) MISTAKE OF FACT IS IRRELEVANT B/C THE STATUTE IS STRICT LIABILITY: Regina v. Prince – D was found strictly liable for sleeping with a girl under the age of 16 although he claimed that he was unaware that she was not of age. Statute said, “Whoever shall take “any unmarried girl, being under the age of sixteen, out of the possession of her father.”
· Defense argued: D had no intent, culpability, or blameworthiness. Therefore, to convict him would be beyond the power of the legislature. There must be some type of mens rea proven to establish culpability. To leave this out is to violate a fundamental principle of the law.
· Bramwell opinion: The struggle with culpability – D may not have known the girls age, but he knew that it was a girl and this is sufficient to establish culpability It is up to the actor to determine whether or not the law allows his conduct.
· Blackburn: The language of the statute does not say you must knowingly commit the act. Knowledge is not an element of the offense because it would allow D’s to consistently escape punishment. The statute exists to dispense with mens rea, punish the act itself, and protect young girls.
*Other examples in which mistake of fact would have no bearing are evident in past cases – Balint, Dotterweich, Park, Arizona Mines.
*Potential Exam Fact Pattern: The pattern might contain a statute with no mens rea language. A problem of strict liability arises. One side argues a mental element (would a reasonable person have been aware of the circumstances) and the other side argues S/L.
b) MISTAKE OF FACT NEGATES THE MENS REA ELEMENT OF THE OFFENSE: People v. Ryan – Statute in the case stated that D must “knowingly and unlawfully possess…six hundred twenty-five milligrams of a hallucinogen.” D found not guilty by arguing that if the mens rea in a statute applies to one element of an offense (knowing he had the drugs), then it applies to them all (knowing he had 626mg). This is a mistake to a specific intent crime (must prove mens rea for hallucinogen, then mens rea for the weight).
c) MISTAKE OF FACT MAY BE AN AFFIRMATIVE DEFENSE: The burden is on D to convince the jury that his mistake of fact was both honest (made in good faith) and reasonable (a reasonable person would make a similar mistake). To disallow this defense in the face of a severe penalty would be unconstitutional. – State v. Guest: D found not guilty for sleeping with a 15-year-old girl. Court allowed the affirmative defense of mistake of fact because the mistake was made in good faith and the reasonable person would have believed that the girl was of age. Mens rea language was present, Statute said, “Any person who…being 16 years of age or older, carnally knows and abuses a person under 16 years of age, is guilty of rape.”

d) Mistake of Law
· Mistake of Governing Law: Ignorance of the existence or the reach of the law or particular statute that makes the D’s conduct criminal. Generally, this is treated like MISTAKE OF LAW and ignorance of the law is no excuse or defense. (2 exceptions: Twitchell, Lambert).
· Mistake of Non-Governing Law: Mistake about the legal implications of the facts. The D is not mistaken about the facts, but he does not know the legal consequences/character of them. This scenario is generally treated like MISTAKE OF FACT.
*When does mistake negate mens rea and when does it allow the introduction of an affirmative defense?
Rule: General Intent vs. Specific Intent
General Intent – That mens rea that attaches to the act that constitutes the offense (the central act at the moment of the violation). The mistake must be both honest and reasonable to be a defense. General intent crimes allow the introduction of an affirmative defense. [The mens rea that attaches to the act – Voluntary intoxication and diminished capacity are NOT valid defenses.]
Specific Intent – Some additional mens rea set out in a statute. There must first be a crime, defined by a proscribed act (general intent) + an additional mens rea that makes that act more serious (the specific intent). Mistake to specific intent crimes, if honestly held, may negate a mental element of the mens rea (the lesser-included offense). EXAMPLE 1: Burglary – “Breaking and entering ½ with the intent to commit a felony therein.
¯ ¯
General intent-the mens rea Specific Intent-The additional mens
for this crime. rea for the Crime of breaking and entering.
A crime containing a specific intent is an example of a lesser-included offense.
For example, the crime above is an example of a crime that contains a lesser-
included offense. A lesser included offense contains all but one element of the
more serious crime.
EXAMPLE 2: Larceny – “The trespassory taking of the personal property of another,
General Intent

with the intent to permanently deprive that person of the property.”
Specific Intent (the lesser-included offense)
EXAMPLE 3: “Assault ½ with the intent to kill.”
¯ ¯
The general intent. The specific intent. This is the additional mens rea required within the statute.
EXAMPLE 4: 1st Degree Murder: Murder + Premeditation and Deliberation.
The lesser-included offense. If premeditation cannot be proven, then a charge of 2nd degree murder will result.

What you should know about general and specific intent:
1. Define it.
2. See it.
3. Recognize it in a developmental sense (the meeting of the two policy concerns – just punishment vs. encouraging dangerous conduct).

a) MISTAKE OF GOVERNING LAW (Ignorance of the law is no excuse): US v. Baker – D found guilty despite claiming that he was unaware that it was illegal to sell counterfeit watches on the street.
1. (MPC) REASONABLE RELIANCE ON AN OFFICIAL INTERPRETATION OF A STATUTE MAY BE A DEFENSE: Commonwealth v. Twitchell – D found not guilty for failing to obtain medical care for their con where they had a duty to do so. D first claimed that a spiritual provision statute applies to involuntary manslaughter, but the court held it did not. D then introduced a due process argument, stating that it would be unconstitutional to prosecute them because they reasonably relied upon an official interpretation statement of the law. The court recognizes this as a defense and notes that this is an exception to the maxim “ignorance of the law is no excuse.”
2. IGNORANCE OF THE EXISTENCE OF A LAW THAT CREATES A DUTY TO ACT UNDER CIRCUMSTANCES WHERE THE ACT IS PASSIVE AND THERE IS LITTLE PROBABILITY OF KNOWLEDGE TO ACT MAY VIOLATE DUE PROCESS: Lambert v. California – D charged with remaining in California without registering as a felon. D was found not guilty by arguing that the statute is unconstitutional in that it violates the due process clause: 1. D had no knowledge or probability of knowledge of the requirement. 2. It was a passive violation in which D did nothing; therefore it fails to put an individual on notice that their conduct is criminal.
*Other Lambert Notes: Can be argued as Strict Liability, Mistake Case, Status Case and Omission case. It is a case that has a little bit of everything.
*Dissent in Lambert (J. Frankfurter): He wants to introduce a constitutional exception and allow S/L where the penalty is small and the statute is for social betterment. He relies on the old maxim that “ignorance of the law is no excuse.”
· People v. Bray – Statute said D must be a felon in possession of a concealble firearm. He was in possession of a firearm so the state only had to prove that D had a prior conviction of a felony, so it is a general intent crime and D introduced an affirmative defense to negate the mental element. D was not mistaken of the fact that he committed an offense in the past, but there was no evidence introduced to show that he knew the offense was a felony, and hence he was unaware of the legal consequences of his prior offense. D found not guilty.
· Long v. State – The court distinguishes between general and specific intent. D charged with violating a bigamy statute. Trial court disallowed evidence that D relied on the advice of his lawyer stating that D made a mistake of law. But, D made a mistake by relying on the advice of his lawyer about the validity of his divorce, not of the statute itself. Hence it is not a mistake of (governing) law. Appellate court reversed and allowed the defense of honest and reasonable mistake to the general intent crime of bigamy, stating that D’s mistake was to non-governing law.
c) Incapacity for mens rea may negate specific intent crimes:
Defense of Diminished Capacity: People v. Wetmore – Court reversed the conviction of D for 2nd degree burglary on the basis that evidence as to D’s diminished capacity (a type of insanity defense) at the time of the crime should be admitted. Defense of diminished capacity can be a defense to negate specific intent, but not general. In this case, “Because of my disease, I could not entertain the elements required for specific intent.” This same rule holds true for intoxication.
d) DEFENSE OF VOLUNTARY INTOXICATION: State v. Cameron – D charged with aggravated assault, “possession of a deadly weapon with the intent to use it unlawfully.” This statute incorporates MPC language (vs. the CL where most crimes are defined without regard to mens rea). The MPC states that voluntary intoxication is not a defense to reckless conduct. Where purpose (w/the intent to…) and knowledge (knowing that…) are elements of the offense, thereby making it a specific intent crime, then voluntary intoxication can be a defense to negate the elements.
*NOTE: Meeting of the two policy concerns – Court draws the line general and specific intent crimes, i.e. between purpose/knowledge and reckless because (1) they do not want to encourage people to drink and drive, and then use voluntary intoxication as a defense. Voluntary intoxication exists, however, because (2) socially we understand that the intoxicated person is not as evil as someone who committed the act in question while completely sober. The defense evolved from 1st degree murder, which started as a death penalty offense. The law came to understand that the drunken killer is not as likely to possess the elements of premeditation.

· Causation – the attribution of blame to someone because he or she caused the result (culpability).
· The law takes in to account when the perpetration of the act gets further away from the immediate cause of death.
· Policy Consideration: Sometimes a foreseeable death as a result of D’s conduct may not be sufficient to establish criminal liability. Courts are wary about transferring the tort concept of proximate cause (foreseeability) into the world of criminal liability because in tort law the penalty is only a monetary one, whereas in criminal law the liberty of the individual is restricted. (The courts in Rhoades and Root struggle with this). Therefore the death must not only be foreseeable, but it must also be DIRECT enough to establish criminal liability.

Sine Qua Non or Cause-in-Fact (But-For Cause)
Ask: “But for the D’s act, would the victim have died at the time he did?”
¯ ¯
Answer: No Answer: Yes (Martin Dyos)
D was a cause in fact of the victim’s death ¯
The exception to But-for” questions. When
¯ two independent causes, each
potentially fatal, could have caused
Establish legal cause by the victims death. Now the question
asking, “was D’s act a proximate of but-for D’s act does not help
cause of the victim’s death?” establish D as a cause in fact of
¯ the victim’s death.
Determine proximate cause by asking ¯
“was the victim’s death a foreseeable No criminal liability
result of D’s act?” (NOTE: The D must voluntarily participate
in the final act that leads to the victim’s death (Kevorkian)).
¯ ¯
Foreseeable ----------------------------------- Unforeseeable
¯ ß ¯
Generally: But, is there a Generally:
D is liable potential break D is not liable
in the chain…?
How voluntary was the victim’s act?
¯ ¯
If involuntary (Stephenson), the act may be an… If voluntary, the act may be a…
¯ ¯
Intervening Cause Supervening Cause (Root)
¯ ¯
Immediate causes such as the A condition is present such as a coincidence or an
immediate response to D’s act carries unforeseeable event, which breaks the chain of causation.
the chain of causation out further. ¯
¯ Ex. Medical treatment –A hospital’s reckless
Ex. Medical treatment – Chain will be carried out, treatment to a victim is NOT foreseeable.
unless the circumstances of treatment are abnormal.
A hospital’s negligent treatment of a victim
IS foreseeable (Hamilton).

· Pg. 336 – The MPC deals with cause-in-fact the same, but they avoid using the terms foreseeable, direct, proximate, etc. Rather, the event must be “not too accidental in its occurrence.” To a certain extent, a lot is left up to the jury.

a) “But-for” causation
· The question for cause-in-fact: But for the D’s act, would the victim have died at the time that he did?
If NO, then the D’s act is a cause-in-fact of the victim’s death.
If YES, then the D’s act was not a cause-in-fact of the victim’s death.
· EXCEPTION: The but-for cause-in-fact question does not work when the death of the victim resulted from two independent events, each of which, alone, is potentially fatal.

a) THE BUT-FOR CAUSE-IN-FACT QUESTION DOES NOT WORK AND LIABILITY WILL NOT ATTACH WHEN “BUT-FOR THE D’S ACTS, THE VICTIM WOULD HAVE DIED ANYWAY”: Regina v. Martin Dyos – D was charged with murder after throwing a rock at the victim during a group fight. The expert testimony showed the possibility that the death was caused by another injury. Consequently, D was found not guilty of murder because the evidence was insufficient to show that the act of the D was a cause-in-fact of the victim’s death.

b) Proximate Cause: Foreseeability and Related Limitations
· The question for proximate cause: Was the D’s act a legal cause of the victim’s death?
· When determining legal cause, it is best to start with questions of foreseeability:
Was the victim’s death a foreseeable (natural and continuous sequence produced the death) result of the D’s act?

a) A D’S ACT MUST BE THE FORESEEABLE CAUSE OF THE VICTIM’S DEATH: Commonwealth v. Rhoades – D started a fire that ultimately resulted in a firefighter having a heart attack and dying. D conviction for second-degree murder conviction was reversed because of an incorrect jury instruction stating that he could be found guilty if it were found that he was a contributing cause to the victim’s death. Reversed because although the act need not be the sole cause of death it must be a foreseeable cause (instruction on remand: it must be foreseeable that death would result from the D’s act).

c) Intervening Causes
· Intervening Cause – an unanticipated event that comes between the initial event in a sequence and the end result, thereby altering the natural course of events that might have connected a wrongful act to an injury.
Immediate Cause – An immediate response to D’s act that carries the chain of causation out further.
Ex. Medical treatment – Chain will be carried out, unless the circumstances of treatment are abnormal. So, When a hospital negligently treats the victim, this type of treatment IS foreseeable because the reasonable person knows that hospitals are not always perfect. (Hamilton).
· Superceding Cause – When the intervening cause is sufficient to relieve the wrongdoer of any liability.
Condition – If a condition is present such as a coincidence or an unforeseeable event, then the chain of causation is broken.
Ex. Medical treatment – When a hospital recklessly administers treatment to a victim. This type of treatment is NOT foreseeable.

a) A SUPERCEDING CAUSE WILL EXONERATE A D EVEN IF THE DEATH WAS REASONABLY FORESEEABLE: Commonwealth v. Root – D was drag racing with the victim and the victim crossed traffic on a one lane bridge in an attempt to overtake D. The victim got into a head-on collision with a truck, which killed him. The court held that the D did not do anything directly to the victim like swerve his car. So, the victim’s own wrongful, voluntary, and reckless conduct was a sufficient intervening cause to break the chain of causation.
1. NEGLIGENT MEDICAL CARE IS FORESEEABLE EVEN IF THE VICTIM’S ACT ITSELF IS NOT: United States v. Hamilton – D beat the victim to near death after exchanging words in a pool hall. The victim was taken to the hospital, which was an immediate cause in response to D’s act. While there, the victim pulled out his own tubes and died. The court found D guilty of manslaughter because the hospitals negligent failure to guard the victim’s bedside was foreseeable.
2. A SERIES OF ABUSIVE ACTS THAT CULMINTATE IN THE VICTIM’S DEATH CONSTITUTE AN IMMEDIATE CAUSE: Stephenson v. State – The victim purchased and took poison after D committed a series of assaults upon her. The court upheld D’s conviction, holding that the purchase of the poison was an immediate cause of D’s treatment and that the victim’s death was a “direct and natural consequence of D’s treatment of the victim.
c) PARTICIPATION IN THE FINAL ACT LEADING TO THE VICTIM’S DEATH ESTABLISHES THE D’S ACT AS A LEGAL CAUSE OF THE VICTIM’S DEATH: People v. Kevorkian – D assisted in the suicide of two individuals by showing them how, but not helping them, to use his suicide machine. D was found not guilty because the court held that some voluntary participation in the final act that leads to the victim’s death is necessary to show that the D is a legal cause of death.

d) Causation by Omission: Duties
· The return to People v. Jones:
A failure to act is punishable when you had a legal duty to do something, and you did not.
· A legal duty is established when (as outlined in People v. Jones):
a) LEGISLATION: A Statute established by legislation that imposes a duty to care for another.
b) CONTRACT: Contractual duty, in which principles apply, to care for another.
c) RELATIONSHIP: As between protector and protectee. One stands in a certain status relationship to another.
d) VOLUNTARY CARE: One voluntarily assumes the care of another and so secludes the helpless person from the likelihood that another would render assistance.
e) CREATION OF PERIL: a situation where a D’s own act gives rise to a legal duty (whether innocently or not).

a) A MORAL DUTY TO ACT IS NOT SUFFICIENT TO ESTABLISH A LEGAL DUTY TO ACT: People v. Beardsley – D found not guilty for failing to care for the woman he was having an affair with once she got overly drunk, ingested morphine tablets, and died. The court held that a D cannot be convicted for failing to act when there was no legal duty to act.

· Homicide can be either intentional or unintentional.
· Murder (includes malice):
· There are four (five) ways to prove malice at common law:
1. Intent to kill (premeditation and deliberation), (Watson).
2. Abandoned and malignant heart (Mayes).
3. The intent to inflict grievous bodily harm.
4. Felony-murder rule.
· For MPC:
1. Purposely or knowingly can satisfy the mens rea for an intentional killing, although there can be a fine distinction between the two.
2. Extreme Recklessness can elevate manslaughter to murder.
· Manslaughter (malice is not present)
· Voluntary Manslaughter – A purposeful killing without malice. The law understands that because of circumstance, the loss of control on the part of D is understandable, and therefore the resulting death is punished at a lesser level (ex. Killing in the heat of passion).
· Involuntary Manslaughter – An unintentional killing.

a) Intentional Murder (second-degree)
· The intent to kill establishes malice, necessary for murder, at common law.
· Jury instructions regarding intent:
“you may” vs. “you must”
¯ ¯
a permissive inference a mandatory presumption
that is not unconstitutional that IS unconstitutional
unless it is irrational
(ex. If you find the D was wearing
blue jeans at the time of the crime,
you may find that…)

a) THE ELEMENT OF INTENT MUST BE PROVEN, AND CANNOT BE INFERRED FROM THE ACTIONS OF A DEFENDANT: Francis v. Franklin – D killed the victim after escaping from routine dental care while in prison. D claimed he did not possess the requisite intent to kill and cited circumstantial evidence showing he fired the gun while in a panic. D’s murder conviction was set aside based upon incorrect jury instructions, which said that the jury must conclude that the D intended his acts, unless he proves otherwise. The court held this to be a mandatory presumption that violates the presumption of innocence thereby shifting the burden of proof for an essential element of the crime to the D, which is unconstitutional and strips the jury of their fact-finding role.

b) Premeditated Murder (first-degree)
Ask if the crime is murder by considering whether or not malice is present.
If malice is present, determine whether or not the murder is 1st degree by questioning if there was premeditation and deliberation present (almost enhanced malice).
· Premeditation and Deliberation – Some reflection on a prior decision to kill.
a) Decide to kill.
b) Reflect upon it.
· The reflection can be as little as a few seconds. So, the question becomes not how long was the reflection, but is there evidence to show reflection? Helpful evidence:
· A time elapsed between formation of the intent to kill and the act. (Ex. Watson – the evidence showed the officer pleaded for his life before he was shot, and the person who hears his pleading then considers it and acts upon those considerations.)
· The manner of the killing. (Ex. A well focused shot to the heart or 52 stab wounds as opposed to indiscriminate shots.)
· Motive – Suggests prior thought such as planning and invites the question of how the D got the murder weapon.
c) Then do it.

a) THE PERIOD OF REFLECTION NEED NOT BE LONG TO ESTABLISH PREMEDITATION: United States v. Watson – D’s conviction for 1st degree murder was affirmed when the court decided that the period of reflection necessary to show premeditation was satisfied when D listened to the police officer plead for his life, disregarded it and killed him anyway.

c) Voluntary Manslaughter
· DISTINGUISHING MURDER AND MANSLAUGHTER: When is the intent to kill not murder? When does it become voluntary manslaughter?
· COMMON LAW (More objective in nature) Voluntary Manslaughter – An intentional killing committed in the heat of passion upon sudden and adequate provocation (there must be a provoker). (Evaluated based upon the objective reasonable person standard). Less evidence is admitted and less cases go to the jury.
· Heat of passion – “Unseat reason” Sudden and adequate provocation. The jury must find, not that the reasonable person would have killed, but that the reasonable person would have lost control in the same situation.
*But, the heat of passion murder must occur before a cooling down period in which the reasonable person would have regained his faculties.
· Who is the reasonable person for the common law? The reasonable person is one who has the same demographics as the D (but NOT the reasonable person with the same volatility because that would subjectify the entire evaluation.
· MPC (More subjective in nature) Voluntary Manslaughter – A killing committed under an extreme emotional disturbance for which there is a reasonable excuse. (The excuse must explain the extreme emotional disturbance in terms of the mindset of D when he/she brought about the death of the victim). There is no cooling down period for the MPC. More evidence is allowed and more cases go to the jury because the focus is upon the effect of the event upon the individual, rather than just the reasonable person.
*Evaluated subjectively – The excuse must be objective, but otherwise the MPC is not as strict. It allows more consideration of the individual under the circumstances, rather than just the reasonable person so that the jury can totally assess an individual’s culpability.
· Who is the reasonable person for the MPC? The reasonable person includes the neutral demographics of the D and evidence is allowed to suggest the elements of other demographics to determine whether or not adequate provocation took place. More evidence and cases go to the jury.
· POLICY CONSIDERATION: Why punish some purposeful killings more than others?
1. Under some circumstances, the loss of a D’s control is understandable. The law understands that the person who acts under the influence of a loss of control is not as bad as the person who kills for a specified reason.
2. In many situations, the victim also did something bad to provoke their own death. D’s act therefore is not looked at in an isolated manner.
· From these two considerations, five defense of mitigation have evolved that the law recognizes and mitigates the D’s culpability from murder to manslaughter:
a) Witnessing adultery (where you learn about it first-hand). (Rowland)
b) Physical attacks where the victim attacks D. (Walker)
c) Mutual combat where a fight started.
d) Unlawful arrest.
e) A violent attack upon a close relative.

a) MURDER MAY BE MITIGATED TO MANSLAUGHTER WHEN THE VICTIM ATTACKS THE D (The theory of mitigation): People v. Walker – The victim attacked the D with a knife for no reason and a scuffle ensued, resulting in the D killing the victim. The court reversed the murder charge and entered a charge of manslaughter by holding that the D was adequately provoked and no evidence was present to show a break in the sequence sufficient to allow D to regain his faculties.
b) WITNESSING ADULTERY IS ADEQUATE PROVOCATION TO REDUCE THE KILLING ACT FROM MURDER TO MANSLAUGHTER (Defining adequate provocation for the reasonable man): Rowland v. State – D intended to shoot his wife’s lover, but mistakenly shot his wife after catching her in the act of adultery. The court reversed D’s murder conviction by holding that the effect of what the D witnessed would have caused the reasonable person to lose his faculties.
c) AN AccumulatiON OF events, together, could add up to adequate provocation: People v. Berry – D killed his wife after a series of events in which she sexually taunted him with pictures and stories about how she slept with another guy. The court reversed D’s murder conviction to manslaughter by holding that:
1. A conglomeration of events, which by themselves are insufficient provocation, but together may establish adequate provocation.
2. When there is a sufficient cooling down period, an event that would not be sufficient provocation by itself could re-ignite passion. Hence, Berry serves to soften the CL rule.
d) IF A UNREASONABLE TIME PASSES BETWEEN THE PROVOCATORY EVENT AND THE KILLING ACT, THEN THE ACT WILL BE CONSIDERED REVENGE RATHER THAN HEAT OF PASSION: Ex Parte Fraley – D, who was not in a panic, killed the victim 9-10 months after the provocative event when the victim allegedly killed D’s son. The court found proof of murder, holding that too long of a period of time had passed and that the reasonable man would have cooled down.
e) CULTURAL BACKROUND MAY BE CONSIDERED IN THE REASONABLE PERSON STANDARD: People v. Wu – D killed her son and then attempted to kill herself because of a Chinese cultural belief that she could take herself and her son into the afterlife where she could care for him. The evidence showed that the killing took place while she was mentally unconscious. The court reversed and held that on remand, the jury may consider evidence of her cultural background in comparing her to the reasonable person in similar circumstances. This case asks the question of how far, as a policy matter, should courts extend consideration of subjective evidence of D’s background.


a) Involuntary Manslaughter
· Involuntary Manslaughter – Defined through criminal negligence. Criminal negligence is a gross deviation from the standard of care that would have been exercised by the reasonable person under the circumstances.
· Civil Negligence: Degree of risk – any risk. It is the failure to observe ordinary care and live up to the standard of care that the reasonable person would have exercised under the circumstances. (Not sufficient to establish manslaughter).
· Criminal Negligence: Degree of risk – substantial and unjustifiable lack of awareness of the potential risk. The D’s conduct must be a gross deviation from the standard of care the reasonable person would have exercised under the circumstances. (Sufficient to establish manslaughter).
MPC – the MPC drafters tried to make an improvement upon the confusion of manslaughter.
· Involuntary Manslaughter – Required a reckless mens rea to prove guilt. Defined as a conscious disregard of a substantial and unjustifiable risk of death. It must involve a gross deviation from the standard of conduct exercised by the normal law abiding person. The D must perceive the substantial and unjustifiable risk, and then choose to run the risk. In some jurisdictions, a D may still be liable for manslaughter even if he did not know if the risk was great enough and the deviation was gross enough.

1. Commonwealth v. Welansky – D owned and ran a nightclub, but got sick one night and had to go to the hospital. One night while he was in the hospital, a fire started that killed hundreds. The evidence showed that D ran his nightclub in a negligent manner because emergency exits were blocked and that it was run in the same manner that night as any night. The court held that if the risk of death is so great, then even the ignorant could be guilty of manslaughter.
2. State v. Williams – D’s son died from toothache because they failed to obtain the medical care necessary to prevent his death. D claimed that they believed his condition would get better. The evidence showed, however, that his face was turning blue and getting worse. Therefore, the reasonable person under the circumstances would have known to obtain medical care. D was found guilty of involuntary manslaughter because their conduct was a gross deviation from the conduct of the reasonable person under the circumstances. (D might not have been liable if it were an MPC jurisdiction).

b) Reckless Murder
· Reckless Murder – When an unintentional killing rises to the level of murder. Always distinguish from when a D’s actions are murder or manslaughter. When does a D’s actions move manslaughter to murder?
· Evidence showing that D acted with an abandoned and malignant heart is sufficient to elevate his conduct from manslaughter to murder. Determined by:
1. If D has knowledge that death might ensue.
2. If his acts were evil to begin with.
3. D was heedless of the potential consequences of his actions.
4. If it were probable that death would result from D’s acts.
Necessary to begin: The presence of an evil act + the D is heedless of the consequences
Ask: How probably are the consequences?
¯ ¯
Probable that death of Possible that death of the victim
the victim will result will result
¯ ¯
Extreme Reckless Conduct Reckless Conduct
(A D’s act is so reckless that it demonstrates ¯
extreme indifference to the value of human life. Manslaughter
This is like abandoned and malignant heart for
the common law).

Understand the difference between murder and manslaughter in terms of the degree of risk:

Reckless conduct – a substantial and unjustifiable risk = manslaughter
ß ß
An enhancement in the degree of risk
ß ß
A gross deviation from the standard of conduct of a law abiding person = murder

a) AN ABANDONED AND MALIGNANT HEART ESTABLISHES MALICE AND THEREFORE MURDER: Mayes v. The People – D got drunk after work, came home, and threw a heavy beer mug in the direction of the victim (his wife), who was holding an oil lamp. The lamp broke, causing the victim to catch on fire. The fire gave the victim severe burns that ultimately cause her death later in the week. (Note: When the evidence shows, as it does here, that D could have done something to save her and he did not guilt may attach through analysis of an established duty at the actors peril). The court held that D’s conduct exemplified an “abandoned and malignant heart,” which is sufficient to find D guilty of murder.

c) Homicide in the Course of Another Crime
· Felony-Murder Rule – the last way to get malice at common law. It is the exception to Faulkner where the prosecution only needs proof of the intent to commit a felony to satisfy the mens rea for murder. Generally, a D is guilty for all killings during the commission of the felony, regardless of whether they were intended, which makes accomplice felons guilty of murder too.
· Limitations arise: Courts are concerned that the doctrine, if applied too rigidly, can distort the relationship between a D’s culpability and liability (the problem of just punishment). Courts have developed a series of limitations:
1. The nature of the felony – The felony must be inherently dangerous (must include a danger to human life, it cannot be just any felony).
2. The killing must occur during the commission of the felony – The killing cannot occur after the felony. Rather, it must occur “in immediate flight therefrom.”
To determine whether a D was in immediate flight from the felony, ask:
a) How far away was D from the scene of the felony at the time of the killing?
b) How long did the killing take place after the commission of the felony?
c) Did the D still have the fruits of the felony on his person? (This matters because he is still escaping from the felony if he was still in possession of the stolen items).
d) Has D reached a position of temporary safety or are officers still in “hot pursuit”?
3. The death must be the proximate/foreseeable result of the commission of the felony – Exception: Stamp.
4. “The merger doctrine” - The felony must occur independent from the killing – The felony must be beyond the assaultive conduct itself that results in the death of the victim. This is a policy consideration. Voluntary manslaughter is a felony and if there were no merger doctrine, then every individual who commits voluntary manslaughter would also be a murderer.
a) Assault with a deadly weapon – This is not an independent felony.
b) Aggravated Rape – This is an independent felony if killing results because although it is inherently dangerous it is separate from an intent to commit harm.
5. Who gets killed/who does the killing? – In some jurisdictions, the felony-murder doctrine does not apply to a D whose co-felon was the victim. Why? Because the co-felon is not a part of the class of people that the doctrine was designed to protect.
a) Cops shoot back during a gun battle and kill a co-felon.
b) Co-felon shoots the other co-felon.

a) A D IS LIABLE FOR ALL KILLINGS THAT OCCUR DURING THE COURSE OF A FELONY: People v. Stamp – D’s held up the victim’s place of business. Approximately 15-20 minutes after the hold-up, the victim, who had a heart condition, died of a heart attack. The court held that the felony-murder doctrine attaches and finds a D strictly liable for all killings that take place during the course of a felony, regardless of whether or not the death of the victim was foreseeable or deliberate.
*NOTE: In the Callahan jurisdiction, the felony must be the foreseeable cause of death.
b) A FELONY IS NOT OVER IF THE D COMMITS THE KILLING ACT “DURING THE COMMISSION OF THE FELONY OR IMMEDIATE FLIGHT THEREFROM”: People v. Gladman – D robbed a deli and then walked about a half a mile to the parking lot of bowling alley, where he hid under a car to hide from a police officer who had just entered the lot. Twenty-five minutes after the robbery, when the officer asked him to get out from under the car, D shot him. The court upheld D’s murder conviction, holding that the felony was still continuing because the killing did not take place long after the felony and because D was in close proximity to where the felony took place.
c) A D IS LIABLE FOR MURDER UNDER THE FELONY-MURDER DOCTRINE IF ONE INNOCENT 3RD PARTY KILLS ANOTHER INNOCENT 3RD PARTY WHILE TRYING TO HALT THE COMMISSION OF THE FELONY: People v. Hickman – Unarmed D’s were found guilty of murder when one cop accident shot another cop while they were trying to prevent the commission of the felony.
d) D WILL NOT BE FOUND GUILTY OF MURDER IF A CO-FELON IS KILLED DURING THE COURSE OF A FELONY: People v. Washington – D’s co-felon was killed during the attempted robbery of a gas station. The court found D not liable for murder because a co-felon is not a member of the class of people the felony-murder doctrine was designed to protect.
e) ACCOMPLICE LIABILITY CAN FIND A D GUILTY OF MURDER BY DODGING THE FELONY-MURDER DOCTRINE: Taylor v. Superior Court – Two guys entered attempted to rob a liquor store. One co-felon demonstrated extreme indifference to human life by acting crazy and in a manner that threatened the victims of the robbery. In response, the victim of the robbery shot the other co-felon. The court found D, the getaway driver, guilty of murder through accomplice liability because his accomplice acted with extreme indifference to the value of human life.

· Attempt – The unsuccessful completion of an offense; failing in an effort to cause harm. Attempt liability attaches when the act has gone far enough to implement mens rea.

a) The punishment for attempt
· Attempt is punished because it implies intent and allows the union of intent and act.

b) The mens rea for attempt
· General Rule: Attempt is a specific intent crime in which you must have the purpose to bring about the desired result. Therefore, a D cannot attempt something that is unintended.
Exception: [Minority of Jurisdictions] Allow attempt liability is when the attempted act manifests extreme indifference to the possibility of death/murder, “2nd degree murder.”
· To determine mens rea: [5.01(a)(b)] – Defines attempt as acting with the purpose to bring about a result plus the belief that the circumstances exist that will give rise to liability.
*Note: Purpose need not encompass attendant circumstances. This means that purpose need only extend to the act that constitutes the offense.

a) A D CANNOT TRY TO ACCOMPLISH SOMETHING THAT HE DID NOT INTEND: State v. Lyerla – D shot at 3 teenagers who were in a Jeep on a highway, killing one of them. In trial he was convicted of 2nd degree murder and two counts of attempted 2nd degree murder. The court affirmed the murder conviction and reversed the two counts of attempt, holding it is a logical impossibility to attempt 2nd degree murder. Once the jury dismissed 1st degree murder (intent to kill), intent liability was also dismissed. For D to be found guilty, it would have to be found that he had the purpose to bring about the death of the victim.

c) The actus reus for attempt [Preparations vs. Perpetration’s (Attempts)]
Whether or not D’s acts went far enough toward the consummation of the act to be liable for attempt?

· ½------------------½------------------------------------------------------------------------½--------------½
Formation of ¯ ¯ Successful
mens rea MPC Murray completion of
[CL] intent
· CL determines whether or not the act requirement for attempt liability has been established through a variety of methods such as the dangerous proximity test [Rizzo] or the equivocality test [McQuirter].

Dangerous Proximity Test: This test is focused on how much the actor has left to do. The focus is on the actor’s nearness of the harm and NOT on the character of the D.
· The actor must be close to the act that constitutes the offense to establish attempt liability.
· Abandonment of the attempt is no defense: Dangerous proximity is so close to the completion of the offense that you cannot go back on your actions.
*NOTE: If, in the commission of the act, the fruits of the felony are not present at the time that the actor planned, then no liability b/c the actor was NOT close enough to the commission of the felony as a result of external circumstance [Rizzo].
*Policy criticism of the dangerous proximity test: The question arises, what do you have to do to be found criminally liable for attempt? The police are out finding bad characters but b/c of some external circumstance, the actors are found innocent.

Equivocality test – An act, by itself, is evidence of attempt. Ask – Whether or not D’s acts, by themselves, demonstrate an attempt to commit a crime in an equivocal way, without considering other evidence? If yes, then the act is unequivocal and the actus reus requirement for attempt liability is satisfied [McQuirter].

· The MPC drafters sought to expand the common law definition of attempt by establishing the “substantial factor test.” The test states that you need not consummate the act to be guilty of an attempt. Rather, you need only take a substantial step toward the commission of the criminal object.
· What is a substantial step? Substantial Step – Some type of act that is strongly corroborative of the firmness of the actors intent.
Substantial Step Test: [This test is similar to the equivocality test b/c you ask whether or not D’s conduct itself manifests the purpose]. How much has the actor done to commit the act constituting the offense? One need not be close to the act that constitutes the offense b/c culpability is focused on the individual character of the D rather than the nearness of the harm.
· Although the actor does not have to do as much, they must be firm enough in their intent that they are appropriately the subject of interference by the police.
· Abandonment is an affirmative defense: “Renunciation of the criminal purpose” is a defense that must be both complete and voluntary.
Complete: D must completely abandon the crime. He cannot temporarily abandon and plan to finish the crime next week.
Voluntary: The abandonment must be voluntary rather than forced.

Hypo: A guy decides to rob a bank and so he rents a car. He then buys a ski mask, goes home, and gets the shotgun out of his house. He then loads the shotgun into his car, drives into town, and parks in an unmetered lot. He goes into the bank, waits in line, and when it is his turn he puts the gun up to the teller’s head, takes the money and leaves. At what point would this D be liable for attempt?
Common Law (Dangerous Proximity): Once D gets to the bank, he is likely liable for attempt. This shows he is substantially close to committing the act that constitutes the offense.
MPC (Substantial Step): Once D loads the gun into his car, it is likely enough to establish liability. This shows an act that is firmly corroborative of the actor’s intent.
*NOTE: For further examples of how the substantial step test might play out, see the note on Jackson (in car and near the bank was sufficient) and Buffington on pg. 809.

a) COMMON LAW® PREPARATIONS TO ACT ARE NOT SUFFICIENT TO SATISFY THE ACT REQUIREMENT AND ESTABLISH ATTEMPT LIABILITY: People v. Murray – D made numerous arrangements to unlawfully and incestuously contract marriage with his niece. The court found him not guilty of an attempt by holding that his arrangements consisted only of preparations and were insufficient to constitute an attempt.
b) COMMON LAW® [Equivocality Test] A D’S ACT, BY ITSELF, IS EVIDENCE OF AN ATTEMPT: McQuirter v. State – D, a black man, was charged with attempt to commit an assault with intent to rape. The court asks whether or not D’s act alone, apart from his “confession,” corroborates the intent of the assault/rape? The court says yes by disregarding the equivocality test (act requirement) in favor of unjustly allowing the jury to consider the customs of racial tendencies of the 1950’s.
c) COMMON LAW®[Dangerous Proximity Test] A D’S ACT MUST BE CLOSE TO THE ACT THAT CONSTITUTES THE OFFENSE: People v. Rizzo – D, with 3 others, planned to rob a pay roll from a specific individual. When they thought they saw him, they jumped out of their car to go after him, but were stopped by the police. Later, it was determined that they had not found the right guy. The court held that because there was no intended victim present, the D was not close enough to the harm.

On an exam, ask whether the impossibility is factual or legal, talk about the differences, speak about Fletcher, and then apply the applicable law to the facts.
I. Factual Impossibility
· Definition: Some kind of fact unknown to the D, which interrupts the completion of the crime. In D’s mind, he did not complete the act.
*Example: Attempting to pick and empty pocket.
*Example: Performing an abortion on a woman who is not pregnant.
*Note: In each of these examples, there is an interruption in the attempt that has NOTHING to do with the legal definition of the offense.
· COMMON LAW/MPC: Factual Impossibility is no defense.

· Definition: D did everything he wanted to do without interruption, and in his mind, he completed the crime. But, the D was mistaken about the legal attribute of some fact; i.e. the mistake has to do with the legal definition of the act that constitutes the offense. There are three (4) categories of legal impossibility:

1. Pure Legal Impossibility: A law does not exist that condemns D’s conduct as illegal. D thinks he is committing a crime, but what he is doing is not a crime in that jurisdiction. This is a total defense everywhere (MPC and CL).
*Example: D is in a state where it is legal to possess a small quantity of marijuana. In this case, it is no crime to smoke marijuana, so D cannot be charged for attempt for something that is NOT a crime.

2. Hybrid Legal Impossibility: Assuming D set out to do everything he wanted to do and there is a crime proscribing D’s conduct, but because of the legal definition of some fact about which D was mistaken, he cannot commit the crime [Booth].
· COMMON LAW: This is a defense against attempt at common law.
· MPC: This is NO defense at MPC b/c the MPC focuses on the D’s belief.

3. Inherent Impossibility: D’s conduct is a crime, but D has no possible way of successfully completing the crime because his capabilities, under the circumstances, are so limited.
*Example: Shooting an arrow at a 747 or trying to kill someone who is already dead.
· COMMON LAW: This is a defense.
· MPC: This is not a defense, but it is considered during the sentencing.

4. Fletcher’s Rule of Rational Motivation: Attempt is defined as someone trying to do something. Two scenarios:
1. If the D knew the real facts, and he still would have done what he did, then he has no defense.
2. If he knew the real facts and they would have caused him not to do what he did, then he has a defense.
*NOTE: Booth would have been guilty in Fletcher’s world because D took the coat anyway, and the stolen character did not change what D was trying to do.

a) LEGAL IMPOSSIBILITY IS A DEFENSE AT COMMON LAW: Booth v. State – [Example of hybrid legal impossibility]. D, a scumbag attorney, received and intended to unlawfully possess what he believed to be stolen property (a stolen coat) from a client. D was unaware that the police had recovered the coat earlier and the coat, therefore, had lost the characteristic of being stolen. The court found D not guilty by holding that it is a legal impossibility to charge a D with attempted possession of stolen goods, when the item in question was no longer considered stolen.
b) HYBRID LEGAL IMPOSSIBILIY IS NO DEFENSE TO ATTEMPT IN MPC JURISDICTIONS: People v. Dlugash – D fired several shots into the head of the victim who was already mortally wounded and possibly dead. The court found D guilty of attempted murder by focusing on the actor’s intent. By shooting the victim, D took a substantial step in the commission of the crime, regardless of whether completion of the crime was an impossibility.

VII. COMPLICITY (Accomplice Liability)
· Complicity (accomplice liability) – Aiding an abetting a principal in the commission of a crime.
· NOTE: If some element of the crime is missing for the perpetrator then other D’s cannot be liable as accomplices. Then, ask: COULD THE POTENTIAL ACCOMPLICES BE LIABLE AS PRINCIPALS? [Look at CAUSATION principles].
a) The Accessorial Act
· What is the act necessary in accomplice liability?
· You must HELP (assist/abet/aid) the principle commit the crime. Accomplice liability is derivative of the principle’s liability [proof is necessary to show the presence of a perpetrator].
*NOTE: To find a D guilty to accomplice liability, a court need not show who the perpetrator is or convict him, just that someone perpetrated the crime.

· How can we determine whether or not the D is an accomplice to the crime?
· Determine: Assess the evidence is sufficient to establish whether or not the D’s are guilty of as accomplices to the crime. Important evidence:
· What did the D do up to and during the time of the act that constituted the offense?

· COMMON LAW – Mere presence at the time of the commission of the crime is insufficient to establish accomplice liability.
Exception: A D could be convicted of mere presence at the scene of the crime, if the evidence demonstrated a prior relation between the parties showing they were acting together. [Therefore, presence demonstrates encouragement.]
a) TO BE AN ACCOMPLICE, D MUST AID THE PRINCIPLE PRIOR TO OR DURING THE ACT THAT CONSTITUTES THE OFFENSE: State v. Ochoa – D’s charged as accomplices for the death of the sheriff. The court found sufficient evidence to show that D’s beat up the deputy while someone shot the sheriff (\, they shared a common purpose). There was evidence to the contrary, however, to show that D’s were not beating up the deputy until after the sheriff was dead. Because the court seemed determined to hook D’s, they were found guilty.
b) MERE PRESENCE ALONE IS INSUFFICIENT TO SATISFY THE ACT REQUIREMENT FOR ACCOMPLICE LIABILITY: Gains v. State – D was sitting in his car in a parking lot when his friends, who had just robbed a bank, got in. D, as the driver of a car, was found not guilty as an accomplice because the evidence showed that he had no knowledge that his friends had just robbed a bank. This was corroborated by the fact that he drove slowly when exiting the parking lot, and only began to run from the cops when approached by them.
c) A D DOES NOT HAVE TO BE A BUT-FOR HELP TO THE PRINCIPLE TO BE FOUND GUILTY FOR ACCOMPLICE LIABILITY: State v. Tally: The victim dishonored D’s family and left town. Later, D and others heard he was around. Although there was a meeting, there was no evidence to show what the meeting was about. When victim left town again, a group followed him with the intent to kill him. D saw a relative of the victim send a telegraph warning the victim. D then sent a telegraph stating “don’t let him get away” and revoking the telling the operator not to send the warning telegraph. The warning telegraph was not sent and the group killed the victim. The court found D guilty as an accomplice by holding that you don’t have to do much to be an accomplice, but you must deprive the victim of one chance at life.

b) The Mens Rea of Complicity
· What is the mens rea for accomplice liability?
· Purpose is the mens rea for accomplice liability. KNOWLEDGE IS NOT ENOUGH.
· ALWAYS ASK: Did D have the purpose to facilitate the commission of the offense? What is the D trying to accomplish?

· Common law defines the mens rea as the purpose to aid in the commission of the crime.
· Generally: Intent does not transfer, the prosecution must show guilt for every element of a crime.
*Exceptions: 1. The felony-murder rule.
2. Natural and Probable Consequences Rule: A co-felon is liable for all natural and probable consequences [the results will probably happen] to which he is an accomplice.
NOTE: “Natural and probable consequences” does not mean the same thing as “reasonable foreseeable.” Reasonably foreseeable connotes the idea that the results are possible, rather than probable.
Limitation: If the felons do something strange, then no liability. For example, if the accomplice does not possess the mens rea for the strange result, then liability is cut off.
*Exception: A D cannot be found guilty as an accomplice for crimes committed by the principle where the mens rea was negligent or reckless.

· §2.06 – Purpose of promoting or facilitating the commission of the offense.
*NOTE: 2.06(4) D can be an accomplice if he shares the mens rea and intentionally assists the perpetrator. Therefore, a reckless or negligent culpability establishes mens rea.
· Therefore, the MPC expands the possibility of liability.

a) BOTH PURPOSE AND KNOWLEDGE MUST BE SHOWN TO ESTABLISH MENS REA®D’S KNOWLEDGE OF A CRIMINAL ACT ALONE IS INSUFFICIENT TO ESTABLISH MENS REA: People v. Beeman – D told his friends the layout of his Aunt’s apartment, but later informed them that he wanted no part in robbing it. His friends, however, robbed his aunt’s apartment. D was found not guilty for accomplice liability b/c the court held that knowledge of the crime is insufficient to establish mens rea. [Jury was not properly instructed on the element of purpose as a requirement to establish mens rea. Therefore, the jury was allowed to presume mens rea from knowledge. This allows an unconstitutional presumption (like Francis v. Franklin).
b) TO ESTABLISH THE MENS REA REQUIREMENT FOR ACCOMPLICE LIABILITY, A D MUST SHARE THE MENS REA OF THE PRINCIPLE: Wilson v. People – Although his friend never admitted it, D believed that he had stolen his watch. D formulated robbery plans with his friend, went to the robbery site, and then boosted his friend into the store to be robber. While his friend was in the store, D then went to call the police. The police arrived and arrested them both. D was found not liable as an accomplice for aiding his friend in the robbery b/c he lacked the requisite mens rea for the robbery. The court held that although D had the purpose to commit the robbery, he did not share the mens rea of the principal, which was the intent to permanently deprive the rightful owner of property.
c) COMMON LAW®A D CANNOT BE GUILTY AS AN ACCOMPLICE BASED UPON CRIMES INVOLVING A NEGLIGENT OR RECKLESS MENS REA: State v. Ertzweiler – D gave his car to an intoxicated individual, who crashed the car and killed two others. The court held that an individual cannot be an accomplice to a negligent homicide.

d) Relations of the Parties
1. The Perpetrator is Excused – The wrong constituting the act was still committed, but there is an excuse for its occurrence, like insanity.
2. The Perpetrator is Justified – A bystander may intervene only in support of justified force, but not wrongful force that is excusable.
3. The Perpetrator Lacks Mens Rea – “Perpetration by means” The use of an otherwise innocent person to accomplish an unlawful result. But, the person who dupes the innocent individual cannot escape liability.
4. Discrepant Mens Rea – Differing penalties may be assigned depending on requisite mental states.
Example: The perpetrator kills in the heat of passion upon sudden and adequate provocation, and is therefore guilty of voluntary manslaughter. But, if the accomplice aided calmly and coldly, then he is guilty of murder. An individual’s liability is measured in terms of culpability.
5. The Principle has not Committed or Could not Commit the Criminal Act – For example, there is a parental kidnapping in which the parents, who have legal custody, incorporate others to kidnap their kids. The accomplices would argue that they are not liable b/c they had a legal right to the kids. Therefore, if there is no liability through accomplice liability, then look at liability through causation principles.

VIII. CONSPIRACY (A crime that is separate and not derivative).
General Goals for the Conspiracy Chapter:
1. Define Conspiracy.
2. Differentiate between bilateral and unilateral conspiracy.
3. Show an agreement between the parties.
4. Reach a conclusion.

Thoughts on Conspiracy
· A separate crime from accomplice liability. The crime of conspiracy gives rise to more danger than just aiding and abetting the commission of a crime b/c groups could commit more than 1 crime.
· Note: Almost every time you are an accomplice, you are also a conspirator.

b) Agreement
· The Act Requirement:
· General Act requirement – the agreement, or mutual assent, in which 2 or more persons agree to commit a crime. This pinpoints the moment that the conspiracy is created.
· COMMON LAW – Bilateral Conspiracy: Whenever two or more persons agree to accomplish a criminal act.
· Common Law Exception: When an undercover agent agrees with a criminal to sell drugs. In this case, there is no meeting of the minds between the parties and therefore no conspiracy.
· MPC – Unilateral Conspiracy: One individual can be liable for conspiracy because the statute says “whomever agrees with another.” Therefore, although there may be no agreement, one conspirator is present.

· Proof of the act requirement:
· Direct evidence – actual testimony showing an agreement between the two parties.
· Circumstantial Evidence – [Griffin] Link a chain of inferences together to show that people are acting together to accomplish a criminal objective.

1. CIRCUMSTANTIAL EVIDENCE CAN SHOW THE PRESENCE OF AGREEMENT AND ESTABLISH CONSPIRACY LIABILITY: Griffin v. State – D, a civil war veteran was in a car crash. When the police came to check on the crash, he attacked one of the officers. When another officer went to assist, 3 or 4 members of the crowd attacked that officer. The court held that a conspiracy can be inferred when two or more persons pursued the same unlawful object, each doing a part so that such acts were connected, though independent. Therefore, they found D guilty of conspiracy. [This case might also be an accomplice liability case].

c) The mens rea of conspiracy
· The mens rea requirement:
· Mens rea of conspiracy – The purpose to facilitate the commission of the object crime.
· Generally: Knowledge that another co-conspirator is going to commit a crime is insufficient to establish the mens rea requirement. Knowledge is insufficient to infer purpose.
· Exceptions:
1. Knowledge that your product will be used to commit a serious crime – Knowledge that your products will be used to commit a serious crime is enough for a jury to infer purpose from knowledge.
· What is an example of this? The serious crime:
· HYPO: I sell you a bat and you tell me that you are going to use it to kill Professor Callahan. The next day, I open the paper and find out that he is dead. I will get arrested for conspiracy to commit murder AND accomplice liability.
· What would not be an example of this? The non-serious crime:
· HYPO: I sell cell phones to gamblers. I know they gamble, but I just want to sell more phones. I know, in this case, that they use the phones for an illegal purpose. But, my purpose is to sell more phones, and not to aid in the illegal use.
· In summary, it is not enough for someone to say to you: “I’m going to use this gun to be a bad person.” But, it may become more problematic if you’re told: “I’m gonna rob a bank with this gun at some point, but I just don’t know which one.”
2. A “stake in the venture” – When the alleged co-conspirator/accomplice/supplier, has a stake in the venture, then it the D’s purpose to help the venture succeed. For example, when a supplier sells pills in great quantity above any legitimate demand to a doctor, knowledge on the supplier’s part will be enough to infer purpose.
· But, what kind of facts give rise to this exception?
a) When a seller provides goods in a volume disproportionate to any legitimate demand.
b) Upon hearing the intent of the buyer, the seller puts item on sale. For example, the seller in the bat hypo sells the bat at a tremendous discount upon hearing that the buyer is going to use it to kill Professor Callahan.
c) No legal purpose to which the goods or services can be put.

1. TO ESTABLISH MENS REA, A D MUST HAVE THE PURPOSE TO FACILITATE THE COMMISSION OF THE OBJECT CRIME: People v. Lauria – D was the supplier of a phone service and some of his clients were known prostitutes. Initially, D was indicted for conspiracy to commit prostitution. The trial court dismissed the action and the appellate court affirmed by holding that b/c D took no direct action to further the call girl activities of the prostitutes, purpose to facilitate the commission of the crime cannot be inferred.

e) The Incidents of Conspiracy
· Pinkerton Rule – [Applies only to federal jurisdictions and other jurisdictions that adopt it]. Every co-conspirator is liable for ALL of the criminal acts of ALL of the other conspirators that are done in furtherance of the conspiracy and that are reasonably foreseeable.
· Implications of the Pinkerton Rule:
· Harsh in its application: A D can be guilty as an accomplice for ALL of the offenses committed by other co-conspirators. No matter how broad the conspiracy is, a D is liable for all acts committed during the commission of the felony and all other acts that are reasonably foreseeable.
· Common Law – Applies the natural and probable consequences rule (supra).
· MPC – A D is only liable for those crimes for which he had a mens rea as an accomplice.
· A conspiracy is not complete until there is an overt act in the furtherance of the conspiracy.
· Note: The overt act need not be criminal or essential, only in furtherance of the crime.
· Example: A group agrees to rob a bank on Friday, but it is only Tuesday. The conspiracy will not be formed until someone acts.
· Pinkerton Jurisdiction – D would have to directly notify the other co-conspirators. Or, he could indirectly notify the other co-conspirators by engaging inacts inconsistent with the conspiracy that would tend to notify the others that he is out.
Note: If D is able to accomplish this, he is out of the group, but not entirely absolved. D will not be liable for the accomplice portion of liability, but he still might be guilty b/c he was initially a part of a conspiracy.
· Common Law – A D cannot get out of a conspiracy once he is in it.
· MPC – A D can get out of conspiracy, provided he:
1. Completely and voluntarily renounces the criminal purpose.
2. Thwarts the object (the success of the crime) of the conspiracy.
Example – Beeman is still a conspirator even though he renounced the crime, b/c he did not thwart the crime.
· MPC – D must terminate his assistance and wholly deprive the assistance he originally gave of its effectiveness. Essentially, D must take back whatever he gave the others to help them. If he does so, D will no longer be an accomplice once the others commit the crime.
Problem: What if, like Beeman, D could not deprive them of the information b/c he already gave it, like an address? Then, D would have to give timely notice to the police so that they could stop the commission of the crime.

1. ONCE ADOPTED, THE PINKERTON RULE IS HARSH IN ITS APPLICATION: United States v. Diaz – D was convicted of conspiracy to use a firearm in relation to the commission of a drug trafficking crime, even though he did not know his accomplice was bringing a gun. The court adopted the Pinkerton Rule, and held that every co-conspirator is liable for ALL of the criminal acts of ALL of the other conspirators that are done in furtherance of the conspiracy and that are reasonably foreseeable. In this case, the bringing of a gun by the accomplice was reasonably foreseeable.



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