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Outline Depot: Common law vs. MPC, tables of when liable vs. not liable.
Actus reus
Mens rea
Omission to Act
Common Law
Potential exception if not
last ingredient in offense
MPC
-There must be at least one
voluntary act of D which is
physically capable.
-Includes: habit, possession,
seizures (Decina: had
seizure while driving,
convicted.)
-Does Not Include: reflex or
convulsion, hypnosis,
sleepwalking
Martin:
Involuntary
action is
defense
2. People v. Newton
a. Factual ambiguity: was Newton already injured when he shot
Officer Frey?
b. Not guilty = guilt not proven beyond reasonable doubt
c. Holding: Unconsciousness can be used as homicide defense.
(Otherwise there is prejudicial error. Should open possibility of not
guilty.)
d. MPC: Where not self-induced as by voluntary intoxication,
unconsciousness is defense to homicide.
Newton:
e. Rationale: People whose involuntary movements threaten
unconsciousne
others do not present problem of correction.
ss is defense
f. Voluntary Action must be proved by P; Involuntary Action is aff
defense and must be proved by D. So D will want to be charged
under Voluntary Action to minimize chance of conviction.
g. Habit = voluntary. Hypnosis =/ voluntary.
h. People v. Decina: Decina was culpably negligent when he
started driving a car and created a risk he shouldnt have. As a
result of that risk, people were killed. His knowledge of selfs
epilepsy = voluntary, reckless driving and manslaughter.
i. Hypo: Drinking at bar and fought with police, claims
unconsciousness due to alcohol? Nointoxication is not defense
to homicide.
j. Proximate Causation: sufficiently, direct result of your actions.
In Martin, creating mere opportunity =/ Decinas direct cause .
C.
D.
E.
F.
G.
H.
I.
J.
responsible for every result that occurred as part of his felony, when it
was not probable consequence of his act. Intent must apply to each
element. Malice requires at least recklessness.
State v. Hazelwood: D spilled 11 million gallons of oil.
a. Ordinary negligence is sufficiently equal to criminal negliegence, a
high degree of negligence, when conduct is something that society can
reasonably deter. [Higher standard is not necessary to protect Ds
rights.]
Circumstance element / attendant circumstances: identity of victim like
federal officer, that element is outside mens rea of D. Can only apply
knowledge, belief, or hope for that attendant circumstance and that is enough
for mens rea.
Santillanes: criminal negligence requires gross deviation from standard of
care, not civil standard. Stabbed nephew resultsin conviction of negligent
child endangerment.
Transferred Intent: A intends to kill X but actually kills Y; his intent is
transferred.
Bulgarly Example: Bulgarly = (i) knowingly enter unlawfully, (ii) with
unlawful intent to stay, (iii) when building is dwelling, (iv) with intent to
commit crime therein. This last condition is an additional condition that
applies ot mental state, outside of the 4 stipulated by MPC. Mere intent (in
this case a specific intent) is sufficient to qualify for bulgarly.
a. Does knowingly apply to dwelling? Ambiguious.
Recklesness v. Knowledge
1. United States v. Jewell: D deliberately avoided positive knowledge of
marijuana in his car.
a. Wilfull blindness: ignorance is result of conscious purpose to
avoid learning the truth.
b. Holding: jury does not have to infer positive knowledge; libale
if D acted with awareness of high probability of fact in
question, unless he actually isnt aware. Willful blindness
satisifies liability for negligence. May also satisfy liability for
knowledge, if took deliberate actions to avoid learning the
truth.
c. Rationale: requirement of positive knowledge would make
deliberate ignorance a defense.
d. Test: ignorance was solely a result of conscious purpose to
avoid learning the truth.
Strict Liability
a. United States v. Balint
b. United States v. Dotterweich
c. Morissette v. United States
d. Staples v. United States
e. State v. Guminga
f. Regina v. City of Sault Ste. Marie
Mistake of Law
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a. People v. Marrero
b. Check v. United States
c. United States v. Intentional Minerals
d. Liparota v. United States
e. United States v. Ansaldi
f. United States v. Overholt
g. Lambert v. California
K. 4 levels of culpability, according to MPC.
L. Mistake defense.
IV. Affirmative Defenses
A. Adds additional requirements for successful conviction.
B. Spectrum
1. Excuse Defenses: unfair to hold people responsible (duress, insanity)
2. Justification: actually the best thing to do (self-defense)
Homicide Offenses
I. Intended Killings
A. Premeditation and Deliberation
1. Commonwealth v. Carroll (Pennsylvania): killed wife out of rage
a. Murder = malice aforethought, intent to kill. Express malice =
deliberate intent to take life of creature, no provocation required.
b. Rule: premeditation = intent. No time is too short. First degree
murder is premed or intentional killing. Dolinko says premed is unsatisfying split of 1st
and 2nd degree murder.
c. MPC does not divide murder into degrees.
2. State v. Guthrie
a. Rule: premed /= intent. Premed requires D to contemplate
intent to kill; there must b e some period that allows cooling off and reflection period,
where D considered and weighed decision to kill. No particular time limit specified, but
there is no such thing as instanteous premed. If spontaneous and nonreflective, then 2nd
degree. (Cooling time does not allow rekindling allowed). If there is cooling time, then
provocation is inadequate as matter of law.
b. Policy: Deliberate killer is more dangerous than impulsive killer.
c. Premed = (i) planning activity, (ii) motive, (iii) evidence that
manner of killing was so particular that D must have intentionally killed according to a
preconceived design. All 3 must be satisfied for premed and thus 1st degree murder.
d. Dolinko says (iii) is unclearpoison is preconceived, while gun
is unplanned?
e. Evidence of whats done after a killing is not evidence of
premed.
f. Concurrence with Anderson: no sufficient evidence of premed
2nd degree.
g. If apply Gutherie to Carroll: in Carroll (i) and (iii) are not
fulfilled; only (ii) is. So does not satisfy premed.
h. Many states distinguish 1st and 2nd degree murder not based on
premed solely, but on other factors which may or may not include premed.
B. Provocation
1. Girouard v. State [Manslaughter]: killed wife in argument.
a. Voluntary manslaughter: murder, except for defense of
provocation
b. involuntary manslaughter: criminal neg or recklessness
c. Words are not legally adequate provocation.
d. Provocation = actions calculated to inflame man and cause him
to act from passion rather than reason.
e. Application: here, wifes provocation was not adequate because
only words. Must be accompanied with conduct indicating intent ot cause harm. So here,
cannot mitigate 2nd degree to voluntary manslaughter.
f. Traditional circumstances of legally adequate provocation to
mitigate murder to manslaughter: extreme assault or battery upon D, injury or serious
abuse of Ds relative, or sudden discovery of spousal adultery.
g. Bad Defn of Provocation: reasonable person. This is bad defn
because reasonable person never kills and so cannot be used as standard to determine if
words or conduct and inflame person to murder.
h. Maj Defn: action which inlfuences reasonable person of average
disposition to act out of passion rather tha njudgemnet or reason. Dolinko says, however,
this defn is too weak because hypo: salesman kills employer out of anger. Only
manslaughter? Should be murder, no?
i. Dolinkos preferred defn of provocation: makes reasonable
person so angry that they come close tokilling.
2. Hypo: Holocaust survivor kills anti-semetic customer. Provokation is
not complete defense, only partial because it mitigates criminal punishment to
manslaughter. In Girouard, policy was to prevent domestic arguments from constantly
escalating into killings. Here, distinguish Holocaust case because anti-Semitism is not
domestic dispute.
3. Policy for Having Provokating Defnse: particular justification (what I
did was the right thing to do), AND partial excuse (human nature is fragile and people
lose contol.) One or the other can be used, but both together cover the universe of
provocation cases.
4. Mariceo Case: person thrown out of bar by bouncer, and kills another
person who resembles bouncer by mistake. Here, provocation makes sense as a partial
excuse (P was so angry).
5. State v. Turner: woman shot unfaithful boyfriend. No defense of
provocation available b/c not married. No claim to mans fidelity, so no partial
justification exists. No defense can be raised.
6. Scriva: killer is aware that victim is unrelated (had intervened in Ps
argument with D.) Here, provocation makes sense as partial excuse because the man was
so angry.
2. Maher v. People: Maher killed wifes lover.
4. Arg for D: did not think doctor was absolutely necessary. Neg.
5. Arg for P: thought maybe needed doctor, but did not get doctor b/c
baby was in such poor health. Reckless.
III. Reckless Murder
A. Murder vs. Manslaughter
1. Commonwealth v. Malone: 17-year old boy shot 13-year old boy
while playing Russian poker. Holding: murder b/c gross recklessless =
malice of wicked disposition. Depraved heart murder just as bad as
second-degree murder. As culpable as if he intended ot kill.
2. Depraved Heart = unintended killing when committed recklessly and
under circumstnaces manifesting extreme indifference to the value of
human life. Also called implied malice murder in CA, depraved
heart muder in NY.
3. If Malone perceived no risk, then neg. But he is reckless because he
perceived risk. Where Hall was reckless and got manslaughter, Malone
is reckless and got 2nd degree murder because created risk in
circumstances manifesting extreme indifference to human life.
Policy: no justification for creating risk and consciously aware of
doing so.
4. Math calculation is not required; 1/1000 chance in Table of Guns is
enough to satisfy murder.
Examples of Depraved Heart Murders = 2nd Degree:
-drunk D shot dancing hotel neighbor. Even w/o intent ,created sub risk in circumstances
manifesting extreme indifference to human life.
-MD amputated 79-year-old mans leg who then died. Doctor convicted on theory of
implied maliceno intent, but was aware and created sub. Risk of death.
-D punched V who died. D convicted of murder. No intent to kill ,but sufficient evidence
to show that he knew of and disregarded risk.
-Drunk Driving: usually manslaughter b/c gross negligence, except for Fleming:
5. United States v. Fleming: D was drunk-driving and killed V. Holding:
adequate evidence for malice aforethought for 2nd degree murde,r
where malice = reckless and wanton and a gross deviation from a
reasonable standard of care, where D was aware of serious risk of
death or bodily harm. Here, Fleming was so outrageously reckless.
6. Common Law: malice = intent to inflict great bodily harm.
7. MPC: murder = rekcklessly under circumstnaces manifesting extreme
indifference to value of human life. Exception if D created
unawareness by being drunk. Intoxication is not defense, and even if
D was unaware of risk while intoxicated, he was treated as if he was
aware of risk.
8. If involuntarily drunk and didnt know when he was driving, then he
could use the defense of involuntary actus reus / conscious awareness
of risk.
Great Bodily Harm Murder: intent to inflict great bodily harm and actually kills.
Considered 2nd degree murder.
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IV. Felony Murder = (i) causing death while (ii) attempting or commiting a felony
A. Hypo: V asleep when X broke in. V had heart attack. No felony murder
because no causation.
B. Prox Cause = but-for + natural and probable consequence + forseeable
C. Take victim as you find him, even if his death is not forseeable (Stamp)
D. Sern: Ds set fire and accidently killed boy. Foreseeable death is sufficient for
murder. Murder = any act known to be dangerous and done with felony.
E. Hypo: X is guilty of causing Vs heart attack if act performed was known to
be dangerous to life. This was not the case with break-ins, and also death was
not forseeable. So Serne would not convict X.
F. Felony murder does not require negligence. Take person as you find him,
cause death is sufficient for murder.
G. Courts dislike felony-murder b/c doesnt account for mens rea.
H. Hypo: girlfriend cheats with man who has heart attack. Girlfriend convicted of
felony-murder.
I. Hypo: kills 2-year-old boy while driving stole car. Felony murder b/c car was
stolen.
J. Detterants say very small risk with huge penalty is bad policy. Retributivsts
say unfair to punish for incidental deaths. But abolishing felony-murder will
increase burden for prosection to prove mens rea when death occurs during
felony. Easier to prove felony-murder than depraved heart murder.
K. Phillips [inherently dangerous]: D malpracticed on 8-year-old with eye cancer.
Underlying felony was grand theft of $700; grand theft is not inherently
dangerous to human life. But grand theft medical fraud is inherently
dangerous to human life.
a. Test for inherently dangerous: assess felony in abstract, not as actually
committed. Policy: keep felony-murder doctrine as narrow as possible.
L. Hines [inherently dangerous]: mistook friend for turkey and shot him.
Underlying felony was posesing firearm as felon.
a. California: robbery is felony that automatically makes first-degree
murder.
b. Majority: foreseeable risk of death = dangerous felony.
c. Dissent: high probability = dangous felony. Hunting is forseeable
risk of death.
d. Ford: shooting someone in below apartment is not forseeable when
accidently discharged gun.
M. People v. Patterson (1989): furnishing cocaine is not dangous in abstract.
Everything in statute must be inherently dangerous to qualify for felonymurder.
a. Henderson: holding gun to head is not inherently dangerous b/c statute
also includes fraud and deceit which are not inherently dangerous.
b. Supreme Court: really big statutes requires split of analysis: relevant
part of statute is inherenltly dangerous if high probability, aka
depraved heart standard.
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a. Statutory rape has defense in mistake of age because had your belief
been true, you would not have been convicted of any crime.
b. However, child molestation has no defense because it is a different
policy: child molestation has probation, so no defense allowed in
legislatures intent.
c. Olsen: no defense of mistake for child molestation; age is strict
liability element.
d. Hypo: stole valuable thing when thinking was not valuable. No
mistake defense for stealing when thing was small, so no mistake
defense for stealing when thing was large.
e. Hypo: hunting deer off-season is bad and this lesser mens rea satisfies
mens rea of shooting human by mistake (broad view).
f. Hypo: possessing drugs within 300 feet of school. Claimed ignorance
of school is no defense because possessing drugs is still a crime. Still
convicted of larger crime; result is opposite under MPC.
H. MPC: every element has mens rea; just negating one mens rea knocks out
entire crime. Reasonableness is irrelevant. Default mens rea is recklessness.
a. Exception: no defense if actor would have been guilty of another
crime, had circumstances been what he believed them to be. Here in
MPC, the punishment would be at the level of the lessor crime. (D is
only charged for crimes that existed had his beliefs been correct.)
b. Hypo: stealing raincoat that contained money. Since mistake would
have convicted D of petty larcency only, D is convicted only of petty
larceny despite mistake.
c. Hypo: Under MPC, Prince would not have been reckless because he
was not aware of risk. So no mens rea and defense is mistake.
X. Strict Liability
A. Morrisette: converted Air Force bomb casings under mistake of abandonment.
a. Requied mental state: traditional felonious intent for larceny.
b. Dual Presumption: If recent statute and no mens rea stated, then no
mens rea. If old statute, then lack of mens rea mens rea still implied!
c. Statute in Morisette does not satisfy indicia, so statue must require some
mens rea and is not strictly liable. Intent is still implied and must be proven by
prosecution.
C. Characteristics of Strict Liability crimes: relatively recent enactment of
statute to protect public in general; not of great stigma nor penalties; person has
ease of avoidability.
D. Hypo: bartender who gives out whisky instead of soda by mistake. Strictly
liable.
E. Balint: Ds indicted for selling opium. Question of legislative intent, Congress
decided strictly liable to protect innocent people.
F. Dotterweich: mislabeled bottles by upstream manufacturer. No mens rea
required; strict liability because Congress preferred to place burden of information on
companies rather than helpless public. Convicted of introducing adulterated drugs.
G. Staples: D did not know firearm was capable of automatic firing.
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a. Staples satisfies some but not all Morisette indicia (ease of avoidability
is not mentioned; harsh penalty for this crime affirms application strict liability).
Holding: in absence of clear legislative statement, assume that mens rea is
required and that prosection must still prove intent.
b. Single Presumption: implied mens rea, even if not explicitly stated.
1. Exception: Public Welfare / Regulatory Offenses: does not
include gun ownership, for example, because this would criminalize actions which are
ordinary.
c. X-Citement: mens rea must be required for each element, even if not
explicitly expressed. Courts have policy of limiting strict liability application. Do not
want to criminalize ordinary conduct. Only punish acts that could have been avoided.
H. Strict liability requires voluntary actus reus. Involutnary act is defense against
strict liability crime.
a. Baker: stuck cruise control. Voluntarily turned on cruise control, so no
involuntary act defense. Strict liability statute requires no mens rea so foreseeability is
irrelevant.
I. Policy for Strict Liability: punish to avoid crime. Negative example includes
Dautterwite, which punished manufactuer for mislabeled drugs.
XI: Mistake of Law
A. Morgan v. DPP: majority of states do not permit mistake of law, although
some do.
B. MPC: No mistake of law defense because statues do not require knowledge of
their own existence as element, so there is no element to negate!
1. Exceptions:
i. reasonable reliance (like on person in official legal capacity)
ii. fair notice = not made available, not reasonably known
iii. ignorance that rejects mens rea
C. Generally, no defense of mistake of law.
1. Exception: reasonable reliance on official statement of law (not
interpretation)
2. Fair notice: grossly unjust to assume that citizen would be aware of law
3. Failure of Proof: P did not prove mens rea element
i. Specific Intent: negates specific element
ii. General Intent: no defense at all!
D. Marrero: no mistake of law, regardless of reasonablness.
a. Exception: if mistake was made on official statement of law or if
mistake was Collateral Mistake of Law
b. Marreros mistake of holding pistol as peace officer was reasonable
but not excused.
c. Policy for Excluding Mistakes of Law: prevent abuse and frequent
mistaken interpretations
d. Under MPC: law itself must contain mistake in order for mistake
defense to be successful.
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C. Root [Minority View]: D and V raced cars and V died. No prox cause.
a. D claimed that Vs free action was cause of his own death.
D. MaFadden [Majority View]: not guilty to avoid tort prox cause.
a. Pennsylvania court did not want to expand to tort prox cause,
so narrows direct cause and makes D not guilty.
b. McFadden could be accomplice, but this would NOT result in
homicide conviction b/c V killing oneself is not homicide and
so McFadden is not accomplice to homicide. So court used
causation to say that McFadden caused death.
c. D in Root would be convicted because there was a
competitive enterprise. But for is satisfied; D forced other V
to drive recklessly.
E. Atencio: Russian roulette. There IS prox cause
a. No contrib neg bar in criminal law b/c the issue is punishment,
not compensation.
b. Distinguish from Root: drag racing has skill and so Roots
conduct there did not require D to make dangerous move.
Russian roulette players forced V to make dangerous move and
play, so there is prox cause.
c. Vs conduct was not indepdent of Ds conduct; there was a
mutual encouragement in joint enterprise.
d. Hypo: Atencio dares V to play solitare Russian Roulette. No
joint enterprise.
e. Hypo: at party, drinking competition and one person dies. Yes
joint enterprise.
f. Hypo: burglar kills house owner who wakes up. Burglar
attends swap met where D purchases stolen items.
g. Hypo: illegal to play Russian Roulette. Bystander calls police,
when police arrived the game has been played but no one died.
D1 claims involuntary behavior and cause by D2 and D3, so no
oen should be convicted of breaking the statute.
F. Warner-Lambert: Ds behavior was not prox cause because he could
not find trigger and determine chain of events. In torts, precise manner
of death need not be determined.
V. Accomplice Liability
A. one person is responsbiel for another, without cause needed.
B. Ex: McFadden: V caused his own death. So causation has second meaning of
responsibility, outside of direct causation.
VI. Attempt
A. Punished less than complete crime.
B. Hypo: avert eyes while driving. Run over victim, vs no victim there.
C. Smallwood: attempt rquires intent to commit result.
a. D transmitted HIV to rape victims who died
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T. MPCs Actus Reus for Attempt: how much the actor has already done
a. Complete attempts without result element: D has done what would
actually constitute the crime, had his beliefs been correct
b. Complete attempts with result element: D has done everything
believed necessary to produce desired result
c. Incomplete attempts:
i. substantial step satisfies far enough [very few states use]
ii. strongly coorobotive of actors criminal intent
d. Ex: D writes of murder plan in diary. Strongly corroborative, but not
substantital step. Focuses on what remains to be done.
e. Hypo: D believed girl was 18, but was 16. Attempted statutory rape
under MPC; statutory rape is strict liability crime. No substantial step
(so no crime), b/c D thought V was 18.
f. Target Crime = crime that D is accused of attempting
U. Dolinkos MPC on Attempt of Actus Reus:
a. Look at target crime.
b. Conduct element: purpose: purpose
c. Result element: purpose or belief
d. Circumstnace element: culpability required for target crime
e. Ex: no mens rea required of age, so no mens rea of statutory rape, so
no mistake defense will work.
V. Jaffe: Supreme Court held no conviction b/c impossible.
a. Crime of recovering stolen property = buying property believed to be
stolen. Can only convict D of attempting to receive stolen property.
b. Supreme Court said no crime b/c actual reality is that target crime is
not achieved and so attempt of target crime doesnt exist. If actually
consummated, no offense!
c. Distinguish from pickpocket cases, where pockets were empty.
W. Dlugash: D1 shot V and D2 shot V fives times in head b/c he thought it was
dead.
a. factual impossibility b/c extraneous circumstnaces beyond Ds
knowledge or control i.e. victim is already dead.
b. Also legal impossibility b/c acts if completd would not amount to
crime.
X. Legal Impossibility: an actual defense. Ds act has never been made criminal
at all. Trying to complete non-existent crime, like homosexuality.
a. Olivdo: convicted of attempting to sell heroin. Not actually heroin.
Need impossibility defense. Dolinko says legal and factual
impossibility are non-distinguishable.
VII. Accomplice Liability Mens Rea
A. Aiding and abetting: encouraging, inciting, or helping to commit the crime
B. Hicks: must also act with (i) intent for principal to commit the target
crime and (ii) result element of aid is necessary.
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C.
D.
E.
F.
G.
a. TC judge should have included intent element. Hicks said Take off
your hat and die like a man; D claimed that victim was uncertain.
b. Hypo: Hicks present ready to aid but not needed. If there was prior
arrangement, can still be accomplice by mere presence.
c. Hypo: Hicks knows of Rowes plan to kill V and indepdently decides
to go watch. No actus reus, no prior arrangement. If Hicks smiled, still
no intent of smiling to encourage murder.
d. Hypo: Hicks shouts words of encouragement and intended to do so,
but if Rowe was deaf and didnt hear, then not actually encouraged.
e. Hypo: Hicks is resolved to help if necessary. Still no actus reus b/c not
communicated to Rowe. Result of encouragement is required.
f. Hypo: Hicks is local sheriff. Then omitted from performing legal duty,
so can be convicted as accomplice.
g. Hypo: At Rowes request, Hicks tells V to show up at certain time. V
dies. Hicks intended for Rowe and V to meet but not for V to die.
Need intent to aid Principal in commiting crime and; knowledge that
act is a crime is not necessary for conviction.
h. Hypo: V raped Rowes daughter and Hicks thinks its not illegal to kill
rapist. Still accomplice b/c mistake of law is no defense.
Gladstone: D volunteered to draw map for drug buyer to buy drugs. Holding:
need real intent for crime to succeed.
a. Gladstone convicted as accomplice to Kent in selling marijuana. Narc
had asked Gladstone where to get marijuana. Gladstone not charged
with accomplice to purchase; charged as accomplice to Kent in selling
marijuana b/c Narc purchasing drugs is not a crime.
b. Supreme Court reverses conviction b/c no nexus between Kent and
Gladstone (i.e. no prior arrangement). Also, Gladstone had no mens
rea of getting V to buy marijuana. Must seek crimes success;
knowledge of rendering aid is insufficient, must intend crimes
success.
c. Ex: if bystander came to robbers aid, even without prior arrangement,
can be convicted as accomplice.
d. Hypo: D allows robbery to take place at his employment. D rips out
wire of panic button. Is D accomplice to robber? Yes because both
actus reus and mens rea of real intent, of making robber succeed, are
present. No nexus of communications, but still an accomplice.
e. In Gladstone, D did not have real intent of crimes success, only
considered mere intent.
MPC: must also have purpose. Knolwedge is not enough.
Policy: otherwise, victim would be accomplice. Also preserve individual
autonomy of wandering around without duty to others.
Old MPC: only knowledge is required.
NY criminal facilitation in 2nd degree: believing probable that he is rendering
aid to person who commits a crime. D engages in conduct which provides
such person with means of commission and actually aids.
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E. Hayes [what happens when theres no crime? Not debating whether excuse
extends]: Hayes proposed crime to Hill, who then pretended to be accomplice.
a. Hayes had no mens rea, so no attempt. No crime, so no accomplice
liability.
F. Innocent Agent / Instrumentality Theory: Hayes will use Hill as tool.
a. Cannot convict if tool is animal. Ex: trained dog to ill neighbor. Dog is
not accomplice; D is not accomplice; D is perpetrator.
b. Can deceive or coerce someone into being an instrument.
G. Hypo: Hayes wants to steal bomb casings. Hayes knows that casings are not
abandoned. Hayes entreats Hill to pick up casings. Hill cannot be convicted of
theft b/c did not have mens rea; believed Hayes claim that property was
abandoned. Hayes can be convicted as perpetrator and used Hill as tool;
Hayes literally caused Hills actions.
H. MPC: Hayes can be convicted of Attempt where he coerces Hill or tricks him.
Engaged in conduct that would make him Hills accomplice if Hill had
completed the crime. Furthermore, the attempt is punished to the same degree
as the actual crime.
a. Exception: 1st Degree felony, which does not include the relevant
crimes of burglary or theft in this case. So can be convicted of crime,
had Hill completed the crime.
b. To be accomplice, need common intent/design/motive.
i. Exception: Natrual and Probable Consequenes doesnt require
same intent.
I. Excuses: if Ds conduct was wrongful but D is not responsible for his conduct.
Insanity.
a. Hypo: Hayes entreats Hill to help with robbery. Hayes is unaware that
Dolinko has kidnapepd Hills son and coerced Hill into helping Hayes.
Hill has complete excuse of coercion.
b. Cannot convicted Hayes under Innocent Instrument, b/c he wasnt
making Hill a tool; he thought Hill was helping him!
c. Therefore, must convict Hayes as accomplice and principals excuse
defense does not extend to Hayes b/c no one coerced Hayes.
J. Justifications: if Ds conduct is not legally wrongful, because the action was
permissible. Self-Defense.
a. Tony attacks Paul with knife. Arthur intervenes and distracts Tony,
allowing Paul to kill Tony. Paul can argue self-defense, but (majority
view) Arthur has no defense b/c self-defense justification cannot be
extended. So convicted of accomplice.
b. Minority View: Pauls conduct was not wrongful and so no crime to be
accomplice to. Arthur is not accomplice. Self-defense or other
justifications extend, because in justifications the conduct itself is not
wrongful and there is no crime.
K. Vaden [does justification extend?]: undercover agent Snell is killing foxes
from airplane. Vaden is pilot. Vaden as accomplice confirmed. Snell is not
justified by his role as public authority of undercover agent, because has gone
outside boundary of allowable tactics.
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Dean. Dolinkos intent and lost peoples actions abscribed to him means
Dolinko can be convicted of higher crime as accomplice than direct perps.
Richards: under MPC, wife is convicted of attempted murder b/c would be
murder had the men completed the act as the wife had intended.
For homicides, courts allow accomplice to be convicted of higher crime than
direct perps who have partial excuses of no premed.
Hypo: Dolinkos friend is mad at Jerold. Dolinko gives friend gun; friend kills
Jerold .Friend has defense of provocation, but Dolinko doesnt, so gets
convicted of murder.
Hypo: Alex intends to kill Carl. Alex hands Beth a gun and tells her to scare
Carl. Alex loaded gun with bullets, so Beth kills Carl. Beth is grossly
negligent so involuntary manslaughter. Alex convicted of murder b/c premed.
Actual crime of involuntary manslaughter (never would be actual
manslaughter) < Alexs conviction of accomplice to murder. Murder did not
occur, but Alexs intent and Beths actions that are not fully volitional. But
Beth was volitional in acting.
I.
Conspiracy
A.
agreement by two or more persons to commit a crime. (i) intent or purpose
of furthering a crime + (ii) act to further the crime by assistance.
B.
some states require that at least one conspirator commit some act in
furtherance of crime (Overt Act Requirement). The act itself does not have to be
criminal or a target crime.
C.
Inchoate Crime = Crime that hasnt reached the ultimate goal, like
conspiracy or agreement. Allows early intervention.
1.
Conspiracy: mere agreement is generally sufficien;t some states
require an Overt Act
2.
Attempt: substantial step act needed
D. Conspiracy is substantive crime and accomplice liability means youre
convicted of crime itself. Attempt merges with target crime if completed. However,
conspiracy does not merge with completed offense.
E. Special dangers of group criminality (more likely t obe commited, danger of
other crimes) do not disappear with fulfillment of target crime, so conspiracy does not
merge with completed crime.
F. Benefits to prosecution:
1. vagueness of conspiracy: 6th amendment: venue in state and district
where crime is committed. Conspiracy can be tried in any state where a
conspirator acted to further conspiracy.
2. Hearsay exception of conspiracy: statement made by one conspirator in
furtherance of crime is inadmissible against other conspirators.
II. Actus Reus of Conspiracy
A. act = agreement. Contrast to Overt Act Requirement, where act in furtherance
of conspiracy after agreement.
B. Conspirator does not need to agree with each part of substantive crime. Could
be merely support function.
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result of her actions as prostitution in conspiracy. So Pinkerton goes further than N&P,
sometimes.
2. Other times, N&P goes further than Pinkerton. Hypo: D works in liquor
store with hated owner. Sabotogues alarm to aid robbery ,who does not know of D. D is
accomplice but not conspirator. Robbery wounds owner. Udner N&P, D is accompcle to
attempted murder b/c murder is N&P of attempted robbery, which D is definitely
accomplice to. 1) D is accomplice to attempted robbery, so 2) D is accomplice to
attemped murder because 3) Murder is N&P of robbery.
3. Alvarez: Ds selling cocaine, but buyers were undercover cops. Ds shot and
killed a fed agent. Murder was not goal of drug conspiracy, and did not facilitate
conspiratorial goal. Did not even achieve same purpose.
a. But murder was reasonably forseeable consequence of drug deal. Other
drug dealers who did not shoot were convicted as accomplcies to 2nd degree murder under
Pinkerton. These accomplices were major participatns who had guns and could forsee
murder.
4. Anderson: D referred pregnant women to abortionst but did not know of other
women. D is part of big conspiracy of sending women to doctor. Convited of 24
additional counts of abortion that she did not refer.
H. Some states including CA use Pinkerton.
I. Args in Favor of Pinkerton:
a. a weapon to obtain cooperation from low-level particpants to get to
bigger fish.
b. augments punishment of kingpin who is not actually selling drugs on
street.
c. creates incentives for criminals to monitor each other.
II.
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E. Peterson: Peterson was initial aggressor b/c came out again to thief and
threated him. Theif was about to leave, and Peterson starts things again. Initial aggressor
loses right of self-defense.
1. Initial aggressor = incite attack or promote necessity of taking life.
Affirmative unlawful act. The provokoing act may or may not be illegal, and does not
have to be an act of force. Inflammatory words can be sufficint to count as agreesion,
according to some courts.
2. Allen: shooter was initial agreesor b/c knew of likely
provocation,regardless of intent.
3. Hypo: during fight, B pulls out gun. A started the fight. A is initial
aggressor, even though did not use deadly force. MPC and some states say that B has
right only to use non-deadly force, which gun is not. So Bs use of ugn is illegaly deadly
force and B is initial aggressor.
V. Necessity Defense
A. Necessity defense justified by Utilitarianism, Choice of Evils defense
1. permits individuals to decde when to break the law
B. Ashton: crime of mutiny. Cew permitted defense of necessity b/c alternative
was death in sinking ship.
C. Jackson: D was father who kept sick daughter at home. Violated school
attendance laws. Permitted ot use necessity defense.
D. Majority of states have adopted necessity into statute as per MPC: choice of
evils.
1. MPC: mere belief, even if unreasonable, is sufficient. But if D was neg
in believing or creating situation, then defense cant be used against a crime requiringneg.
Same for recklessness. Can only be defense against higher mens rea like purpose. Treats
same as SD.
a. If D created the situation, then no defense of necessity.
b. 3 conditions:
- balance of harms where threat must be real, not believed.
-harm of evil sought ot be avoided > harm of evil that
statute was menat to protect against. Former is individualized, latter is generalized. Ex:
harm of evil meant to be protected against = general espcae of any prisoner, not just
Ungers escape. Whereas harm of evil sought to be avoided is death or GBH to Unger.
Latter harm of evil meant to be protected against also can be the weakening of the laws
deterrence effect, like deterrence of laws prohibiting prisoner escape.
2. In NY, justification defense = necessity defense. Requires imminence
of real threat and clear outweigh of utilitarianism. Too narrow, so never used.
3. Illnois statute only requires simple outweigh and reasonable belief of
threat. Also does not require imminence. Broader.
Are lives equally valued? Deliberate taking of life is perhaps higher harm than
manslaughter.
E. Medical Mecessity
1. judge says no defense of needed marijuana
2. Oakland Cannabis Buyers Co-Op: Ds charged with selling marijuana
and claimed necessity. Judge said no defense to crime of manufacturing and distributing
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marijuana, b/c Congress already outlawed it. Dicta of no necessity defense outside of
statutory regulation permitting such a defense.
F. Schoon; no necessity defense to civil disobedience. Action is unlikely to
change Congress mind. There are alteranatives of seeking legislative change. Mere
existence of law is not harm.
G. NO necessity defense for homicides. Includes hypos of transplant, trolley,
flood and climbers.
H. Necessity is technically available to lesser crimes like GBH.
I. Hill: D killed abortion doctor. No necessity defense b/c evil trying to avoid =
abortion, which is not an evil according to SCOTUS
B. Unger: D claimed self-defense during crime of escape when threated with
death by fellow inmate.
1. Holding: jury can consider Lovercamp elements as mere facors, not
strictly necessary elements.
2. Here, D was entitled to submit defense of necessity to jury.
3. Dissent: availability of defense would encourage more escapes.
C. is not Duress or Insanity, which are Excuse defenses. Is not Self-Defense,
where there is no alternative but to take life.
D. Lovercamp Elements of Necessity:
1. situation or threat of imminent harm
2. No time to complain to authorities, or past complaints were futile
3. No ability to resort to courts
4. no evidence of force used towards other innocent people
5. prisoner immediately reports to authorities when attained safety
E. Traditional Elements of Necessity
1. Threat of imminent harm
2. prisoner did not bring about situation
3. utilitarianism. Breaking laws > staying.
4. legislature has not balanced harms in a way adverse to prisoner.
F. Possible Laws for Necessity as Defense To Homicide
1. If redirecting a threat, then permissible (trolley)
2. Creating a new threat is not permissible (eg. Transplant)
3. Double Effect: impermissible to intentionally cause death, or to cause
death as means to achieve goal. Permissible to use action where death is not goal, but
rather unfortunate consequence. Ex: bombing to induce surrdenders, not to kill.
G. Public Commit Against Torture v. State of Israel
1. Tortue: ticking time bomb scenario, need to torture to find location.
Assumptions include that suspect will tell the truth, that interrogater has clean hands,
thatn there is no other way to save people. Slippery slope justification for tortue. MPC
treats all lives equally.
VI. Defense of Duress
A. Complete defense under traditional law. Threat of:
1. immediate / imminent death or GBH
2. to oneself or to another, such as a close relative
3. threat is such that its reasonable to heed
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5. test of wrong is purely cognitive, not voliational. But there exist cases where D
knows act was wrong, but was unable to resist urge to act.
a. Hatfield: D went to theater with gun. Shot at king but missed. Claimed
insanity and identity as second Christ. Watned to put to death by state. Found NGRI.
Udner MNaghten, D knew nature of act and knew act was morally wrong by societal
standards, and also obviously legally wrong. Under MNaghten, would be qualified as
sane!
J. M-Plus: adds in volitional prong, asking if D was unable to resist act
a. mental defect results in: (1) volitional prong where D was unable to
conform (irresitable impulse), or (2) cognitive prong where D did not know act
was legally or morally wrong.
b. Stress (1988): D had football player son who objected to Vietnam war.
D became convinced of conspiracy between football league and US govt. Killed wife in
order to gain public forum to unveil conspiracy. Court found existence of mens rea.
Insanity and mens rea can co-exist in 1st degree.
c. volitional prong is sometimes abandoned in variations of MNaughtens
and M-Plus. Problems with volitional prong include difference between didnt and
couldnt, as well as unable to distinguish civilly commited D from recidivist.
J. Lyons: didnt refrain from killing distinguished from couldnt refrain from
killing
a. Majority of psychologists say cannot measure capacity for self control,
so volitional prong should be eliminated.
K. New Hampshires Durham / Product Test: alternative to MNaghtens and MPlus: D is NGRI if criminal act was product of mental disease or defect.
Difficult to apply, abandoned in 1992 because gave too much power to
psychiatrist.
L. MPC [minority rule]: mental disease or defect that results in: (1) D
lacking cognitive prong of substantial capacity to appreciate the
wrongfulness or criminality of conduct, or (2) D lacked volitional prong
of substantial capacity to confirm to law
M. Fed statutes definition of insanity as aff defense is strictly defined: severe
mental disease or defect which causes D to be unable to appreciate nature and
quality of act. Stricter than Lyons b/c requires severe mental disease and
places burden on D.
N. Sweeny: D killed Lowenstein b/c claimed Lowensteins voice in head. Under
MPC, there was mental disease. Sweeny did appreciate wrongfulness of act
b/c tried to conceal. His belief in Lowensteins voice does not negate his
ability to appreciate wrongfulness. D had also been expericing voices in head
and had not killed for 10 years, so had capacity to conform to law.
O. Other Problems with MPC:
a. Barefoot v. Estelle: life or death decision was decided on risk of
recidivism. Recidivism decided by psychologist in expert testimony.
b. Should insanity be an excuse defnse?
c. Alternate defense of disadvantaged background.
d. Variations in prongs are irrelevant to results.
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I. Diminished Capacity
A. failure of proof defense. Negates mens rea, an element of the crime.
B. MPC: allows Diminished Capacity Defense only for specific intent crimes
1. specific intent includes 1st degree premed. Depraved Heart requires only
recklessness, so is not specific intent crime.
2. Policy: specific intent crimes include lesser-included offenses. For
example, burglary has lesser included offense of B&E. If D is not convicted of burglary,
can still be convicted of B&E. Want people to be convicted of something if there is
danger.
C. Arizona: rejects Diminished Capacity entirely.
1. can give evidence for insanity defense only, not for purpose of negating
mens area (i.e. Diminshed Capacity). Reasons include: there is too much variation in
identifying mental illnesses; there is potential to mislead trier of fact, due to misleading
classifications; there is too much weight on expert testimony.
2. Dolinko says these args apply to insanity defense, not to diminished
capacity which is dependent on the existence of a mental state.
3. (Holding) Any evidence offered for insanity placed burden on D. D gets
civilly commited. Contrast with Diminshed Capacitys burden, which is on P. D gets
to go home.
C. D was unable to form mental state to commit the crime
D. Hypos
1. mental disorder decreased capacity to premed. Can only be convicted of
second degree murder.
2. intent to kill deleted by diminished capacity. Can be convicted of
manslaughter at most.
E. Whetmore: d had mental disease and thought it was his apartment. Did not
have intent to steal, so cannot be convicted of burglary.
F. Dechelle: D claimed psychiatric testimony is unreliable.
G. Brawner: can use diminished capacity to negate mens rea.
II. Diminished Responsibility
A. aff defense
B. mental impairment that doesnt reach level of insanity. Should not be held
responsible. No capacity, so drops down to manslaughter.
C. Disfavored in U.S. England allows only as defense to murder.
1. Exception: If murder includes element of malice, then Dimished
Responsibility can negate malice and therefore function as a lack-of-proof defense. Or,
malice is not a mens rea so Dimished Capacity functions as aff defense.
D. MPC: rejects Dimished Responsibility.
III. Defnese of Extreme Mental or Emotional Distress
A. allowed by MPC
B. drops murder tomanslaughter
C. is an aff defense
D. CA law: rejects Diminished Capacity as both failure-of-proof defense and as
aff denfese. No reduction of manslaughter allowed.
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1. Exception: Dimished Acuality: mental impairment less than insanity can negate
mens rea like premed. Premed in this case includes meaningful appreciation of crime /
gravity of act.
Professor Writings
Dolinko supports consequentialism, and refutes the following 3 arguments of
retributivism:
1) Consequentialism gives people irrelevant and improper incentives to act relative
to the crime they commit. Dolinko says that all criminals are given an accurate
assessment of the costs and benefits of breaking the law, so the incentives and
punishments of consequentialism are not irrelevant.
2) Consequentialism punishes people in a manner not determined by his own
choices, decisions and actions, but rather by those of the punisher. Dolinko says
that criminals are punished precisely because of their actions, choices and
decisions. But even not treating a person according to their own choices is not
immoral, because it is our collective assessment of crimes which gets applied to
each individual. Personalized judgments of criminals presents too much of an
implementation burdern.
3) Punished person cannot share in the purposes of those who do the punishing.
Dolinko says that criminals can agree to the general purpose of deterrence, just
not for their particular case.
My thought: Dolinko subscribes to theories of contributory tort, in that criminals are at
least partly at fault for the consequences they suffer.
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