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RENUNCIATION: inchoate crimes [crimes not completed]
Attempt / solicitation
ACT REQUIREMENT……………………………………………………………………………………………………………………
MENS REA REQUIREMENT………………………………………………………………………………………………………2-
LEGALITY REQUIREMENT…………………………………………………..……………………………………………………4-
CAUSATION…………………..……………………………………………………………..…………………………………………5-
HOMICIDE……………..………………………………………….…………………..……………………………………..………6-
- FELONY MURDER……………………………………………..…………………………………………………………6-
- FIRST DEGREE MURDER……………………………………………..…………………………………………………..
- SECOND DEGREE MURDER……………………………………………..……………………………………………..
- VOLUNTARY MANSLAUGHTER…………………………………………..……………………………………..…8-
- INVOLUNTARY MANSLAUGHTER / RECKLESS HOMICIDE…………………………………………………
- NEGLIGENT HOMICIDE……………………………………………..………………………………………..…….9-
THEFT……………..……………………………………………..…………………………………………….…………………….10-
- LARCENY..………………………………………………………..………………………………………………………..…
- EMBEZZLEMENT..………………………………………………………..……………………………………………….
- FALSE PRETENSES..………………………………………………………..……..…………………………………10-
ROBBERY……………..………………………………………………………..…………………………………….………………….
BURGLARLY……………..………………………………………………………..…………………………………………….…11-
JUSTIFICATION: SELF-DEFENSE……………………………………………………..…………………………….………12-
EXCUSE: NECESSITY………………………………………………..……………………………………….……..……………….
EXCUSE: DURRESS………………………………………..……………………………………….……………………….…..13-
INSANITY DEFENSE…………………………..……………………………………….………………..……………..….…..14-
ATTEMPT…………………………..……………………………………………………..………………..……………..….……15-
SOLICITATION…………………..……………………………………………………..…………………………….……………17-
COMPLICITY…………………………………………………..…………………………..………………………………….…..18-
CONSPIRACY……………..…………………………..……………………………………………………………………………20-
UNCONSTITUTIONAL CRIMES………………………..…………………………………………………………………………
ACCESSORY AFTER THE FACT……………………………………………………………………………………………………
Statute/charged under an offense:
o Act element [statute] Proctor
o “keeping a place” / owning property is not an act element / THOUGHT CRIMES NOT OKAY. o Any factual determination that increases max sentence must be made by jury beyond a reasonable doubt Apprendi o Omission (failure to act) can be an act Jones, if: 1) Statute 2) Stands in certain status relationship to another (parent to child, lifeguard to drowning victim) 3) Contractual duty (babysitter) 4) Voluntarily assumes care thus excluding others from helping o MPC 2.01(3): 2 instances when failure to act can constitute a crime when a) when omission is in the definition of the offense or b) when a duty to perform the omitted act is otherwise imposed by law
o Mens Rea element [statute & offense]
If no mens rea, valid under strict liability (by virtue of the crime, it’s inferred ), if: 1 ) inherently dangerous “so destructive of social order” [to ensure public welfare/safety : carrying a gun that can shoot through 6 bodies] - Dillard AND
- intent often impossible to prove [ex: statutory rape, drunk driving] UNCONSTITUTIONAL IF NOT MET OR, - Morisette factors: is the intent regulatory? If so, the mens rea isn’t required for the offense/its inferred (purpose not to require intent, purpose to minimize danger) – if its not regulatory, constitutionality invalid if no mens rea: A) Actual harm or risk (prevent harm: OR WRONG JUST CUZ SAY WRONG)? B) Offense against person/property/state (common law offense) or offense against public welfare (COVERING A)? C) Action or omission (require u to do something)? D) Severe punishment or light punishment (1 year or less)? E) Old or new? (historical pedigree) left side mens rea (common law crimes/traditional offense/malum in se: conduct is inherently wrong = UNCONST FOR S.L. ) / right side no mens rea (regulatory offense = S.L. IS OK/malum prohibitum: wrong just b/c legisl says so)
- I would argue XYZ if I was the defense attorney to say SL is impermissible. However, this arg isn’t likely to prevail
- Common law crimes (license, how tall grass) = need mens rea
- Factors test, not elements test
- Can say, weve also long criminalized drug related crimes
- BECAUSE BECAUSE BECAUSE
mens rea and knew it was unlawful - Cheek]: 1) knew about duty under law + 2) intentionally violated it Generally, ignorance of law is no excuse / defense at common law Baker (didn’t know illegal = criminal law does not require knowledge act is illegal) o MPC 2.02(9): unless in the offense definition, knowledge of the law does not need to be proved / not a mental element of offense COMMON LAW, reliance on public advice given by public official (like own attorney) not an excuse for ignorance of law. Cant say didn’t know conditions specified in offense definition were present/misapplied or misconstrued law (Hopkins). o But, if willful mens rea (Cheek) or mistake of legal circumstance (Bray), mistake of law is an excuse o Concurrence of the Two at the same time [offense] o Bad act and bad intent must occur at the same time o Temporal concurrence (@ time of act, required mental state did not exist b/c had mental state b4 acting but then abandoned it) o Concurrence of mind and result: Faulkner [intend to commit 1 crime doesn’t automatically transfer intent to commit another crime] o MPC 2.03(2) & (3): if purposeful/knowing is element, element not established if actual result is not within purpose or contemplation of actor // if reckless/negligent is element, element not established if risked result is materially different from actual result.
o Legality Requirement [statute]
1) Criminal offenses must be enacted/applied prospectively Keeler o Crimes cant be convicted b4 made crimes (so u can conform 2 law) Local ordinance not made public until Monday, do act on Friday 2) Legislatively Requirement Keeler [SPECIFIED, IN ADVANCE, BY STATUTE] o Crimes must be legislated by legislatures thru statutes / law must state it / cant interpret it ur own way o Federal courts cant create common law crimes Hudson v. Goodwin 3) Publicly law can’t be passed and “hidden,” must be made public. 4) Generality law must apply to everyone [not just group of people] 5) Specificity Chicago v. Morales o Void-for-vagueness / Vagueness doctrine : 1) fails to provide notice (ordinary ppl unable understand what it means / what conduct it prohibits) AND 2) may authorize or encourage arbitrary and discriminatory treatment (SO broad that provides no std for law enforcement/ too much discretion) o Voluntary Requirement [statute] Martin Voluntary is presupposed in the statute and you cannot convict a defendant if it was not voluntary [ so if forcibly brought onto public highway, for ex., doesn’t satisfy] VOLUNTARY: w/ respect to actions, not results
o Involuntary is a defense , usually does not impose criminal liability Grant [automatism, psychomotor epilepsy] o Unless Invol conduct cannot be a defense if 1) notice of condition (know epilepsy), when u experience ur condition (eplipetipc attack) and
- creative a risk activating ur condition (Decina) o Notice linked to voluntariness, must be put on notice to comply with law and change behavior accordingly (Newton) / not voluntary if linked to element where u were forced (Martin) Can’t be punished for status crimes/status or factual status Robinson = narrow rule: only if says “be” will it violate 8th^ amendment on cruel and unusual punishment / be a status crime o Powell: says to be found intox or get drunk, not a status crime o Pottinger: extends narrow Robinson rule: involuntary to eat in public when homless. If involuntary to be homeless, than status crime o MPC Section 2.01: (1) not guilty unless conduct is a voluntary act or omission. (2) not voluntary if reflex or convulsion, a bodily movement during unconsciousness or sleep, under hypnosis or hypnotic suggestion or a bodily movement that otherwise is not a product of the effort or determination of the act. (3) omission is voluntary only if expressly made sufficient in offense definition or if duty to perform the act is imposed by law (4) possession is a voluntary act if knowingly received it or was aware of his control for a sufficient period of time to be able to terminate his possession Common law definition: a willed muscular contraction or bodily movement by the actor, the slightest movement sufficed at common law
o Causation [offense] : anytime result element, want causation
Step 1): But-for-causation [factual causation] Regina v. Dyos = EASY. ALWAYS YES. MPC 2.03(1)(a): conduct is a cause of the result when it is the but-for-cause or when the relationship between the conduct and result satisfies any additional causal requirements set forth by law in the offense definition. “strictly liable” Step 2): Proximate/legal causation o Common law definition: D is responsible for all acts that occur as “a natural and probable” consequence of the conduct [Rhoades] o Either violent Hubbard : “result from a corporal blow” Or foreseeable Rhoades: like NY, injury must result from D’s act through a natural and continuous process, D is responsible for all results that occur as “a natural and probable” consequence of the conduct, even if he did not anticipate the precise manner in which the injuries would occur Under common law, “a year and a day rule” (Ex Parte Key) Step 3): UNLESS INTERVENING/SUPERVENING events : break chain by being a necessary condition after act, not caused by D
proximate cause? Martin: death is not too remotely related to felony, too accidential in nature or too dependent on voluntary acts of other people Flores: must be a reasonably foreseeable and non- accidential consequence of the felony / in the course of the felony Step 3): was there an agency rule? (some states limit who does the killing, i.e. if victim or p.o. does the killing) or protected persons rule? (in N.J., co-felons not protected so we don’t care if they die / excusable death) Step 4): MINORITY of states go even further, ask if theres a mens rea with respect to death (usually only if a freak scenario will they impose a floor of mens rea) = pg 458 MPC 210.2(1)(b): severely limits doctrine, involving only robbery, rape, arson, burglary, kidnapping or felonious escape and then raises a rebuttable presumption that D was murderously reckless w/ regard to possibility of death CO- FELON LIABILITY FOR FM (also invol mansl if participate in felony) SCOPE OF CONSPIRACY
- FELONY MURDER: REASONABLY FORESEEABLE AND NATURAL CONSEQUENCE OF TARGET CONSPIRACY? And IN FURTHERANCE OF CONSPIRACY
- Committing an inherently dangerous felony where death was foreseeable
- Defendants would argue not in scope of agreement b/c agreed not to kill some
- But likely will fail b/c agreed to commit an inherently dangerous felony
2) First degree murder
o Common law definition: purposeful/ intentional causation of death with premeditation. Premeditation (PM) requires that some time elapse and during that time, deliberation occurs – Watson PM Anderson factors to consider: 1) planning factors (behaviors prior to killing), 2) motive (prior relationship), 3) nature of killing (indicates preconceived design) Factors need not all be present. True test is not duration of time, but extent of duration (Garcia) PM factors to consider: Bostic D give thought b4 acting to idea of taking a life and reaches a definite conclusion. Time elapsing btwn thought and commission is not dispositive, rather deliberation is key. o Minority rule: Wilson: intentional use of a deadly weapon gives rise of a permissive inference of intent to kill o MPC 210.2(1)(a): criminal homicide constitutes murder when committed purposefully or knowingly
nd
degree murder
o Common law definition: purposeful/intentional killing without premeditation (Franklin) OR unintentional killing with gross recklessness and an abandoned and malignant heart (EIHL/ wanton: manifest extreme indiff to human life) (Suarez or Mayes) o MPC 210.2(1)(b) [same as murder/FM] o Also known as “gross reckless murder” Mayes : risk is so much higher and value to life is so much lower / “depraved heart” or “abandoned and malignant heart” is one who acts with malice aforethought / malice implied when no provocation and circumstances show an abandoned and malignant heart o Francis v. Franklin: can’t presume intent, acts are not presumed to be a product of will / if unintentional, must be an extreme indiff to human life o Suarez: if unintentional, must be EIHL (like firing into a crowd, driving into sidewalk, opening a lions cage, bombing a park, poisoning a well, throwing a turkey onto the LIE) – THIS IS GROSS RECKLESS MURDER. o Depraved indifference murder multiple victims endangered: guilty of murder even tho unintended, like dropping turkey off LIE. Exceptions to multiple victim rule: 1) abandoning a vulnerable victim and you make them vulnerable / helpless in 1st^ place (Kibbe / Mills), 2) torture (Poplis) and Russian roulette counts when substantiality of risk is so high (Malone)
4) Voluntary manslaughter
o Common law definition: knowing or intentional killing with provocation [EED
- extreme emotional disturbance / heat of passion] o “Killing happened in the heat of passion, before a reasonable opportunity to cool off and a causal connection exists between the provocation, passion and fatal act” o “A killing that otherwise constitutes murder is mitigated to voluntary manslaughter at common law if it occurs ‘in a sudden heat of passion’” o Provocation must be adequate: Walker subjective AND objectively adequate: 1) Objective adequacy test: arouse sudden and intense passion in an ordinary person through A) serious & physical injury by victim B) witnessing adultery [Rowland] – some jurisd relax prov category if adultery proven by circs (Price), even a mistaken belief of adultery can suffice if take circs as he reasonably perceived them to be (Yanz), some states have an honor defense, make it completely justifiable: Georgia aims @ preventing adultery [Scroggs], Delaware once limited to $1,000 fine, Texas applied total justif where husband killed paramour, not wife [Reed] C) attack on a close relative, D) mutual combat and
o MPC 210.4(1): criminal homicide constitutes negligent homicide when committed negligently = disregards a risk which “he should be aware” o Williams: should have known, a RP would, to exercise caution when created a subs/unjustif risk. NEGLIGENCE + CAUSATION OF DEATH (foreseeable to ordinary man) = liable THEFT, ROBBERY AND BURGLARY
1) THEFT
o Common law definition: “the taking of property in possession of another with the intent to take” (Mitchneck). A debt owed is not “taking.” o Common law cases: temporal “convergence” of act and intent : intent to deprive/take and deprivation/taking at same time (Rex v. Chisser / The King v. Pear). If intent to take happens after taking, still theft (The Case of the Carrier) o Modern view: George Fletcher definitions/ common law elements of 3 types of theft:
1) Larceny [taking from someone: NEVER LAWFULLY HAD POSESSION]
- Trespassory (no consent/right to be there or force) +
- caption (taking from possession) + o Actual Possession: Physical Control o -Constructive Possession: Not physical control but no one else is in actual possession of it o (Possession is different from Custody, which is when you have possession of the property but restricted right to use it);
- asportation (away from another, its moveable) +
- personal property, of another (no claim/right to it) – not attached to land + Lund: computer services not personal property VS.MPC 223.7: “theft of services”, including “anything of value” = larceny by trick or false pretenses
- with the intent to permanently deprive
- Without claim of right (belief one is entitled/permitted to possess property)
2) Embezzlement [lawful possession but decide to continue to possess
unlawfully]
- Initial lawful possession +
- of property +
- of another +
- conversion (sell or substantially deprive of value) +
- with fraudulent intent (permanently deprive w/o claim of right)
3) False pretenses [obtaining $ through felonious misrepresentation]
- Material misrepresentation [is basis of transaction] +
- Reliance by victim +
- Passage of title +
- Knowledge of falsehood of misrepresentation +
- Purpose to defraud o MODERN/CONSOLIDATED SCHEME Ohio Statute 2913.02:
- MR (1) = purpose to deprive +
- MR (2) = knowingly (AR) = obtain or exert control +
- 3 ways to do it: (1) larceny, (2) embezzlement, (3) false pretenses o MPC 223.0(1) = intent to deprive:
- permanently deprive OR so extended to appropriate major portion of value OR dispose as to make unlikely owner will recover
- 2 nd^ one: “Significant” portion of value = Bautista o MPC 223.1(1) = “single offense of theft”
2) ROBBERY
o Common law elements from Lear, shows larceny and robbery
- Elements of larceny +
- Force OR fear (taking accomplished by) +
- Ramirez: pick-pocketting no force or fear
- Brown: can have force or fear through threats
- Where victim is present o MPC 222.1: elements of threat (fear) =
- 1a: causing SBI (no mens rea) OR
- 1b: Threatens immediate SBI OR
- 1c: Threatens immediate felony
- If threat is not immediate extortion
- Spencer: threat must be fear that a reasonable person would feel, can’t just be “mean”
3) BURGLARY = predicate felony for FM
o Common law elements:
- Breaking (if had key somehow, not burglary) +
- Entering +
- Dwelling of another (someone’s house) +
- At night
- With the intent to commit a felony therein o Modern std [lower bar] = Colvin [trespass merges with burglary: crime intended to commit cannot be trespass]
- Entry into a building
- Without consent
- With the intent to commit a crime OR commits a crime
- No breaking, dwelling, nighttime or felony requirement
- Night time and person present are just aggravators o MPC 221.1:
o 2(B): deadly force is not justifiable if you are not threatened by D/GBH, rape or kidnapping and/or if you are the initial aggressor. There is a duty to retreat, but not from your dwelling (castle doctrine). o Majority rule = no duty to retreat: Erwin (SYG: no duty to retreat b4 using deadly force / CASTLE: no duty to retreat b4 using deadly force in ur home) o Some states, like Colorado = no proportionality requirement in castle doctrine / no duty to retreat Minority tule = duty to retreat: Eberle (cluttered home: safely retreat) or Leidholm Proportionality requirements and duty to retreat / castle doctrines differ by jurisdiction
2. Necessity “lesser evils” excuse Dudley and Stephens (rejects necessity
defense) and Holmes (rejects b/c method of selection wasn’t random [draw by lot] and common carrier rationale [sailors shouldn’t be killing ppl they are supposed to protect]) AT COMMON LAW o MPC 3.02 1a):harm prevented > harm caused 1b): no specific laws on point [no other justification can be on point to use this SD balancing of harms – SD, dures or insanity] 1c): no legislative purpose to exclude (Warshaw) and 2) cant recklessly or negligently bring about situation where need to balance the harms o Statute for necessity defense in Illinois: Unger = 1) not creating situation, 2) objectively reasonable belief that 3) hp > hc o Warshaw adds 4) imminence required: harm prevented must be imminent
3. Duress Crawford: “afraid for my life”
1) Threat to self/close relative 2) Imminent/continuous (no reasonable opportunity to escape) o “gun to head”/ deadly threat must be actively operating on you during commission of crime (Milum, Harrison, Myers) o Contento-Pachon: relaxes imminence requirement like MPC **3) D/GBH
- Reasonable belief**
except: willfully/wantonly placing oneself in situation - MPC 2.09(2) or murder/vol [NEVER 4 INTENTIONAL KILLING] o Williams: when you don’t want duress to apply to participation in organized crime [recklessly placing self in situation] MPC 2.09(1): LOWER BAR: MPC Relaxation of imminence requirement (Contento- Pachon)
- Threat of UNLAWFUL force against person or another where person of reasonable firmness wouldn’t be able to resist [DOESN’T NEED TO BE RELATIVE, NO IMMINENCE REQ AND THREAT DOESN’T NEED TO BE OF D/GBH]
- Cant recklessly or negligently place yourself in situation
- Cant act on command of husband
- Also murder exception
4. Insanity Defense Serravo: MAJORITY RULE – not guilty by reason of insanity if
o Prerequisite of mental disease or defect (MDD) + o M’Naghten prongs: as a result of MDD , **didn’t know nature and quality of conduct:
- Moral incapacity** = unable to distinguish right from wrong: objective [not due to drug use] / morally wrong according to societal stds, not legally wrong 2) Cognitive incapacity = don’t know nature or quality of act / consequences of actions (holding child under water, thinking wont drown) (Sherwood, Knights) o MINORITY RULES –
- Irresistible impulse test / volitional incapacitation: lacks subs capacity to control actions (Clarke) an accused is legally insane if, due to a mental disease or defect, she would have been unable to stop herself even if there had been a policeman at her elbow at the time she committed the crime. Insanity has destroyed the defendant’s powe r to choose between right and wrong.
- Durham test = gives entire Q to jury, “product of MDD” proposed an insanity rule that eliminates the “right-wrong” dichotomy of the traditional M’Naghten standard. Here, a defendant is excused by reason of insanity “if his unlawful act was the product of mental disease or defect.” This test has not been widely accepted because it fails to give the fact-finder any clear standards for evaluating the defendant. (only New Hampshire) o MPC 4.01: (ALI std) MDD + subjective capacity to appreciate criminality of conduct (MORAL INCAPACITY BUT USE LEGALLY WRONG VIA SUBJECTIVE] OR volitional incapacity/can conform ur conduct to law) o VS. incompetence Dusky : Incompetent to stand trial? = due to MDD, is the indiv unable to understand the nature/consequences of proceedings or unable to assist in defense? = HIGHER BAR, CANT EVEN STAND TRIAL (MPC 4.04) [How is the Model Penal Code standard different from the M’Naghten approach: 4.
- MPC relaxes the requirement that a defendant “know” the difference between right and wrong. It focuses instead on whether a defendant “lacks substantial capacity to appreciate” the nature and consequences of his acts (4.01(1))
o Unequivocality test = HIGH BAR (attempt when conduct manifests intent to commit crime) = PRIMA FACIE CASE FOR ATTEMPT o MENS REA Lyerla “mens rea of attempt requires intent ” o “dual intent” at common law Can’t attempt an unintentional crime (reckless homicide) = Coble, Norman HIV cases (Smith, Markowski – didn’t intend to kill so not attempted M) o if multiple victims, must prove intent to kill with respect to that victim [unless “zone of danger”] / if multiple D’s, each D needs intent = Bland MPC 5.01(1): does or omits anything with the purpose to achieve target crime w/ same culpability as target crime MPC 5.01 overview: Punishes as severely as if it actually happened (5.05(1)). Also punishes if change mind (“subs step” = 5.01(2)) vs. most states: punish less severely (1)© = purposefully does or omits something if duty to act and omission is a substantial step ATTEMPT: ABANDONMENT A DEFENSE? o NOT A DEFENSE AT COMMON LAW to completely renunciate intent to perform crime = Staples: o Once cross line from preparation to attempt (subs step): no going back, if “nonvoluntary abandonment” b/c intercepted by police. o Voluntary abandonment could be a limited defense if don’t cross line (Bucklew: only example where this worked b/c abandoned b4 taking action and thus ONLY PREPARATION (didn’t cross line / do a subs step) o vs. Involuntary abandonment b/c intercepted is never a defense o MPC 5.01(4) : limited defense of abandonment = renunciation rule = complete and voluntary renunciation [completely and vol renounces crim intent and persuades the solicited party not to commit the offense or otherwise prevents it] o Not voluntary if motivated by probability of detection / apprehension Not if motivated by postponing to a more advantageous time ATTEMPT: IMPOSSIBILITY A DEFENSE? ULTIMATELY, neither factual nor legal impossibility is a defense [ Booth = NOT A DEFENSE ]: b/c mistake of fact or law, actions could not possible lead to commission of crime underlying attempt charge o Dlugash = (attempt to kill some1 already dead) if person engages in conduct that otherwise constitutes attempt, legal and factual imposs are not defenses, if the crime would have been committed had the circs been as person believed them to be LIKE MPC (majority view: subjective std circs taken as actor believes them to be makes legal imposs not defenses / guilty) HAD circs been as actor believed them to be, guilty even if legal impossibility o Factual impossibility Crime impossible to complete b/c of fact/physical condition unknown to D Putting hand into empty pocket (Ring), attempting to steal from empty receptacle, shooting into empty bead, wrongly believes gun loaded and shoots wife, abortion but not pregnant NOT A DEFENSE
o Pure legal impossibility = A DEFENSE: Thousand (think criminal, not actually – silly to even recognize this) Vs. NOT A DEFENSE: LEGAL IMPOSSIBILITY: Act, if completed, not criminal o Accepting goods believes stolen but not in fact stolen (Jaffe), false testimony solicited, if given, immaterial to case (Teal), offers bribe to juror, not actually a juror, contracts a debt that is unauthorized/nullity but believes valid (Marley), hunter shoots stuffed deer and believes alive (Guffey) o NOT A DEFENSE TO ATTEMPT
SOLICITATION: A SEPARATE OFFENSE: (Much easier to prove than attempt. Misdemeanor @
common law) o Lubow: cite for both AR and MR: SOLICIT ANOTHER + INTENT TO COMMIT CRIME o Actus reus = communication to X to commit crime : communication that constitutes a request, indication, demand or encouragement of another to commit an offense Failed communication is just a failed solicitation Must ask some1 to commit crime, can’t just ask some1 to assist Can solicit even if already intending to do it Even if tacitly encouraging some1 to do it / Communication itself is enough. No need for corroboration o Solicitation + subsequent conduct = attempt: CAN SOLICIT AND ATTEMPT AT SAME TIME = People v. Superior Ct. Solicitation is a crime even if crime doesn’t actually happen = Lubow e o Mens rea = purpose that X commits crime (dual purpose: intent to communicate (AR) and specific intent that the person solicited commit the targeted offense): communication + intent other engages = enough. No need for corrob. o MPC 5.02: (punished as severely as if completed crime, like attempt, except for soliciting felony in 1st^ dg = 2nd^ dg punish: 5.05(1))
- Commands/encourages/requests another to engage in specific conduct, can communicate other to take subs. Step = can solicit attempt
- Doesn’t matter if failed 2 communicate as long as designed to = BIGGEST DIFF FROM COMMON LAW = can be charged of attempted solicitation (unsuccessful communication = solicit vs. attempt to solicit at common law) 3. Renunciation = affirm defense if persuaded solicitor not to proceed (1) Defense if solicitor completely and voluntarily renounces her criminal intent AND (2) persuades the solicited party not to commit to offensive or otherwise prevents it [5.02(3)] o Misdemeanor at common law, but 3 grades of solicitation: · Murder/kidnapping in 1st^ dg = solicit in 1st^ dg = class D felony · “felony” = crim solicited in 2nd^ dg = class A misdemeanor · “crime” = crim solicitation in 3rd^ dg = violation // Special liability rules Solicitation
- Foster test = MENS REA MUST BE MENS REA OF OFFENSE o can be complicit for negligent or reckless homicide: intent to aid and consciously disregards or should have expected risk of death if so, wouldn’t be liable under Peoni / Backun test, but liable here Sadacca: tricking people to commit status crimes (caused innocent agent to engage in perjury and assumed status necessary for that) McCoy: accomplice liability premised on an accomplice’s mens rea / principal’s mens rea doesn’t matter. COMPLICITY FOR SECONDARY CRIMES:
- Rosemond: active participation in 1st^ crime/orig offense + knowledge/expectation 2 nd^ crime could happen
- Minority Rule lowers std = Kessler: crimes committed in furtherance of orig crime or agreement (active participation in 1st^ crime + 2nd^ crimes committed in furtherance of that one) o look for an agreement: and bring a gun in case we need it
- In maine, even lower std: AP + anything that is foreseeable NY Penal Law §115.05: A person is guilty of criminal facilitation in the second degree when, believing it is probable that he is rendering aid to a person who intends to commit a class A felony (higest degree of felony reserved for crimes as murder or treason), he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit such class A felony.... Criminal facilitation in the second degree is a class C felony. Model Penal Code §§2.06(3)(a) and 2.06(4): (3) A person is an accomplice of another person in the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense , he (i) solicits such other person to commit it: or(ii) aids or agrees or attempts to aid such other person in planning or committing it.... (4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result, that is sufficient for the commission of the offense.
- Sections 5-1 and 5-2 of the Criminal Code (p.825) provide the Common Design Standard that states if you’re in a group of people and they have a criminal plan, you can be held liable. -Watermelon Patch ( Hamilton v. People) – Common Design example- Three people invaded watermelon patch to steal watermelon, owner realized, fight broke out, owner pinned one of them to the ground, a second thief shot at and missed the owner and hit the thief. All 3 convicted of assault with intent to commit murder, despite the 3rd^ thief not taking any part in the action. Muni v. US: “Δ Charged $90,000 on counterfeit credit cards. Chemical Bank’s credit card authorization center made standard electronic inquiries on these charges to computer centers in Virginia and Missouri. Convicted of wire fraud in interstate commerce, Muni denied that the interstate transmissions could be imputed to him. But because Muni caused the operator to make these inquiries and could reasonably foresee that she would do so, the court affirmed the conviction.” Takeaway- one CAN be held liable via Perpetration by means - causing an innocent person to engage in conduct. Model Penal Code §2.06(2)(a)- Perpetration by means - A person is legally accountable for the conduct of another person when: (a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct.
- People v. McCoy: Takeaway: An accomplice CAN have a higher mens rea than person that committed crime & therefore may be guilty of a more serious homicide offense than the principal.
IF MULTIPLE D’S CONSPIRACY? (both a mode of liability for other crimes and an
independent crime)
- Verive= (3 elements of conspiracy): unlawful agreement, overt act & intent
- unlawful agreement between 2 or more ppl (bilateral, most jurisds. Some are unilateral agreement) o bilateral = excludes stings and agreements with other protected people o Griffin: Proving an agreement = a. Can be inferred (tacit agreement) from circumstances of concert of action b. “conspiracy to distribute” if circumstantial evidence infers an agreement = (Cepeda) c. common law unilateral agreements are ok d. majority rule must be a bilateral agreement (2 or more ppl)
- an overt act (low requirement: doesn’t need to be a substantial step. Can be mere preparation, encouragement, etc.) o Wharton doctrine : no conspiracy unless distinct target substantive offense (consp is distinct from target substantive offense)/ex: if elements of crime itself require multiple people, like statutory rape, can’t be a conspiracy o Make it clear that it doesn’t need to be a subs step/pick the lowest overt act possible
- with mens rea of intent that the overt act be committed (that u or ur co- conspirator will commit unlawful objective) o Lauria: When intent can be inferred from knowledge, if circumstantial evidence shows: a. Special interest in activity (stake in the venture) = Direct Sales b. or aggravated nature of crime (lower bar for intent when offense more severe)
- Like attempt (and unlike complicity), cannot terminate / withdraw (from past) an agreement = Read o Once agree and commit an overt act = cant go back!!!!!!!!!!!!!!! Can cut off future liability if: 1) notify co-conspirators of withdrawal OR 2) act inconsistently w/ objectives (and be guilty only for acts happen prior to withdrawal, unless further acts are foreseeable = Pinkerton). So withdrawal is a limited defense. Renunciation and withdrawal : defendant is not guilty if he renounced criminal purpose of the conspiracy, and then thwarts the conspiracy’s success, under circumstances manifesting a complete and voluntary renunciation of criminal purpose. o Must also withdraw: make co-conspirators aware of intention to withdraw. If u withdraw but don’t renounce then can still be convicted of conspiracy but not the substantive offense – MUST WITHDRAW AND RENOUNCE W/ CONSPIRACY, NOT COMPLICITY
