George Mason Criminal Law Outline
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| FINAL REVIEW- CRIMINAL LAW |
Purposes of Punishment
Punishment is suffering purposely inflicted by the state because one of its laws has been violated.
Utilitarianism: the basic premise is that punishment is itself an evil because it deliberately inflicts harm on a human being. Therefore, we should only hurt criminals if some "good" is achieved by it. The good reasons may include 1) deterrence (of D in future crimes, and of others contemplating committing crimes), 2) incapacitation (preventing D from committing future crimes), and 3) rehabilitation (changing offenders into nonoffenders with treatment).
Retributivist: argues that the persons who choose to do criminal acts deserve to be punished, and that punishment should be imposed even if it serves no utilitarian purpose. In other words, there is a right to punishment. Retributivists therefore restrict punishment to those who have made moral, willing choices. Issues: 1) hard to explain how punishment "makes up for" the injury D inflicted on society, 2) it is ambiguous , requiring proportionality of an "eye for an eye", and an ordinal ranking of crimes according to their seriousness, 3) it validates hatred.
Actus Reus
All crimes have 1) a voluntary act (actus reus), 2) a culpable intent (mens rea), 3) concurrence between the mens rea and actus reus, and 4) causation (both actual and proximate) of the harm. Actus reus is the requirement that a D commit a voluntary act. An act is a bodily movement or muscular contraction. Thoughts alone do not constitute a voluntary act.
MPC: Under the MPC §2.01, reflex, convulsions, things done under hypnosis, sleep walking and other unconscious states are not acts. Therefore, the MPC extends the traditional C/L to include a broader range of acts.
Voluntary Act: To be a voluntary act, D must perform the physical act for each element of the crime. Martin v. State (D not liable for public drunkenness when police took him from his home to a public place). However, when there is an involuntary act, D’s earlier voluntary act may deprive D of the "involuntary" defense. In State v. Utter, for instance, voluntary drunkenness leading to the involuntary act of stabbing his son was not a complete defense.
Omissions: The general rule is that there is no duty to act, and therefore no criminal liability for an omission to act. In People v. Beardsley, a drunk male was held to have no duty to aid his female friend who got drunk and took morphine. However, exceptions exist to this rule exist where a duty is created by: 1) a special relationship (e.g. parent/child), 2) a contract, 3) a statute, 4) an assumption of care, and 5) D having created the peril.
MPC: §2.01(3) permits an omission as a voluntary act when there is 1) a statute, or 2) a duty imposed by civil law.
Mens Rea
Mens rea symbolizes the requirement that the D have a culpable state of mind. US v. Cordoba-Hincapie (holding that to be guilty of a crime with a mens rea element, the criminal must have a guilty state of mind). While most crimes require true mens rea, strict liability crimes have no mens rea requirement at all.
MPC: The MPC 1) adopts an element analysis applying a specific mens rea to each element of a crime, 2) reduces statutory mens rea culpability to four states, and 3) adopts subjective liability for recklessness requiring D actually be aware of the risk. Moreover, the MPC only recognizes strict liability for offenses that constitute violations, where punishment is a fine. §2.05
General intent vs. Specific intent:
C/L: At C/L, courts traditionally classified the mens rea required in crimes into four categories: 1) general intent, 2) specific intent, 3) crimes that required mere recklessness or negligence, 4) strict liability crimes w/o a mens rea requirement. General intent crimes required showing that D desired to commit the act serving as the actus reus with any blameworthy state of mind. Specific intent required showing that in addition to D desiring to commit the actus reus, he also had a further intent. The significance of the distinction was important when there was a mistake of fact or intoxication. To negate specific intent, a mistake of fact must be honest. To negate general intent, the mistake of fact must be honest and reasonable. Moreover, intoxication can sometimes negate specific intent but typically not general intent. Strict liability offenses are those that do not require a culpable mental state. The act itself is enough. Examples of these crimes at C/L include statutory rape, mislabeling of drugs, etc.
MPC: the MPC has abandoned the general intent/specific intent distinction, preferring to set forth the precise mental state required for each element of each crime. The MPC does not define strict liability crimes, except for "violations" that are minor offenses typically paid by fine.
Mental States:
C/L: At C/L, courts used a number of terms in confusing ways. Typically, there were four mental states at C/L: 1) intentionally, 2) recklessly, 3) negligently, and 4) maliciously.
MPC: The MPC defines a slightly different set of mental states: 1) purposely, 2) knowingly, 3) recklessly, and 4) negligently. Splitting C/L "intent" into two categories of "purpose" and "knowledge", the MPC defines purpose as occurring when it is D’s conscious object to cause the social harm. People v. Conley. This is different than "knowingly" in which D does not desire the result but is aware that the conduct is substantially certain to follow. State v. Nations (a nightclub owner hiring a 17 yr-old thinking she was 18 did not "knowingly" hire an underage worker because he did not have actual knowledge. In a reckless mental state, a person consciously disregards a substantial and unjustified risk. Therefore, D behaved in a way that was a gross deviation from what a law-abiding person would do. This requires awareness of the risk, and is a subjective test. Negligence, on the other hand, does not require awareness. Typically, criminal negligence requires gross negligence which is greater than that required for civil negligence.
Differences: Therefore, in addition to splitting C/L "intentionally" into "purposely" and "knowingly", the MPC also draws a clear distinction between negligence and recklessness based on the awareness the D has of the risk (rather than the degree of risk involved). Moreover, the MPC is more willing to hold people accountable based on willful blindness, by saying that when someone deliberately avoids knowledge under the belief that knowing would be bad, they can be held to have knowledge. §2.02(7)
Mistake of Fact
C/L: At C/L, if D is mistaken about the facts or the law, he may raise the defense. In general, mistakes of law were no defense even if they are reasonable mistakes. People v. Merrero (federal corrections officer reasonably believes a statute gave him the right to carry a gun is still guilty). The only exception is where the statute includes a defense for mistake of law by requiring a willful violation. Ratzlaf v. US (D could not be convicted of a willful violation of a statute w/o prosecution showing he was aware of the statute). Typically, you look at the mistake to see what effect it had on D’s mental state, and whether it prevented him from having the appropriate mens rea. Mistake is therefore no defense against strict liability offenses. Garnett v. State (20 yr old man guilty of statutory rape for having sex with 13 yr old he though was 16). In specific intent crimes, mistake of fact is a defense when it negates the required mens rea. People v. Navarro (for specific intent crimes, mistake doesn’t have to be reasonable to be a defense). For general intent crimes, at C/L D’s mistake is not a defense unless it is reasonable.
MPC: The MPC always defines a specific mental state for criminal offenses. Therefore, a mistake of fact is only a defense if it negates the mental state required to establish any element of the crime. §2.04(1) Therefore, in the MPC "mistake of fact" is a failure of proof defense rather than a justification or excuse. Moreover, if D would be guilty of a lesser offense if the facts were as he believed them to be, the MPC will find him guilty for the lesser offense whereas the C/L will hold him accountable for the higher offense. Regarding mistakes of law, the MPC codifies the C/L reasonable reliance doctrine stating that if someone relies on an official, but erroneous, statement of the law, D has a defense.
Causation
Cause in Fact: Causation relates to the link between the act and the harmful result. The prosecution must show that D’s actus reus "caused" the harmful result in two senses: 1) the act was the cause in fact of the harm, and 2) the act was the proximate cause of the harm. There are two ways for an act to be the cause in fact of the harm: 1) by being the "but for" cause of the harm, and 2) being a substantial factor in creating the harm. D’s act is the "but for" cause of the harm if the harm would not have occurred but for the act. The substantial factor test says that even if Ds act is not the "but for" cause, it is still the cause in fact of the harm if it was a substantial factor in bringing about the harm. For example, if V is dying and D’s act shortens V’s life, this often suggests that D’s act was a substantial factor in producing V’s death. Oxendine v. State (when a father beat his child after someone else pushed her into the bathtub, court held that you can find actual causation if the act accelerates the death)
Proximate Cause: At C/L, the prosecution must also show that the act and harm were sufficiently closely related that the act was the proximate cause of the harm. Regarding homicide, at C/L used the year and a day rule, saying that D cannot be convicted if V did not die until a year and a day following Ds act. Proximate cause problems typically arise in two situations: 1) situations where the type of harm intended occurred, and in the intended manner, but the victim was not the intended one, and 2) cases where the general type of harm occurred to the intended victim, but occurred in an unintended manner.
Unintended Victim: In the first case of an unintended victim, proximate cause is not usually a defense. Rather, courts apply the doctrine of transferred intent even when the danger to the actual victim was unforeseeable. In crimes of recklessness and negligence that involve an unintended victim, usually there must be a tighter link between Ds act and the harm to the victim than where the crime is intentional.
Unintended manner of harm: If D’s intended victim is harmed, but the harm occurs in an unexpected manner, D will typically not be liable if the harm occurs through a completely bizarre, unforeseeable chain of events. A D is more likely to escape liability where intervening acts contribute to the result than where D directly caused the harmful result. However, the intervening act must be independent, and unforeseeable. If the intervening act is made by the victim to try to avoid the danger posed by D, this will only be superceding if the reaction is very abnormal. Moreover, a victim that refuses to receive medical assistance that might prevent the harm typically is not superceding. Regina v. Blaue (D stabs V and V refuses a blood transfusion b/c she is a Jehovah’s witness. V’s refusal was not a superceding cause).
MPC: Under the MPC, Ds act will be the proximate cause of the harm if the result is "not too remote or accidental to have a [just] bearing on the actor’s liability or on the gravity of his offense." MPC 2.03(2)(b).
Justification
Justification defenses are applicable to offenses even when all the elements of the offense are satisfied. While society still desires to avoid the harm whenever possible, it is justified when special circumstances mean that the harm is outweighed by the need to avoid an even greater harm or to further a greater societal interest. Therefore, justifiable conduct is not considered wrongful given the circumstances.
Theories of Justification: Some theories for why justification defenses are good include: 1) the public benefit theory, stating that conduct performed in the public’s interest should not be criminal, 2) the moral forfeiture theory, stating that when an actor voluntarily decides to violate the rights of another, he forfeits his rights and the aggressee is justified in using self-defense because the aggressors death is socially irrelevant, 3) the moral rights theory, stating that an aggressee has a moral right to defend against an aggressor and that this is a moral right, and 4) the superior interest theory, stating that as long as a superior interest is pursued the conduct is justified. The superior interest theory is consistent with the utilitarian goal of promoting conduct that reduces overall harm to society.
Excuse
Excuses, like justifications, are applicable to offenses even when all the elements of the offense are satisfied. However, unlike justification, excusable conduct is wrongful conduct. Society admits that the act was wrong, but excuses the actor because of circumstances that suggest the actor is not responsible for the act. While the D is wrong, society deems him not blameworthy.
Theories of Excuse: Some theories for why excuse defenses are important include: 1) the causation theory, which states that a person should not be blamed for her conduct if it was caused by factors outside of her control, 2) the character theory, which says that punishment should be proportional to the wrongdoer’s character, as inferred from wrongful conduct, and 3) the "free choice" theory, which states that a person can be blamed for her conduct only if she freely chose to violate the moral norms of society. In the free choice theory, the actor must have a substantial capacity to 1) understand the facts relating to her conduct, 2) appreciate that her conduct violates society’s morals, and 3) conform her conduct to the law.
Necessity (Justification)
C/L: Defense of necessity may be raised when D has been compelled to commit a criminal act, not by coercion from another human being, but by non-human events. The essence of the defense is that the D chose the lesser of two evils. Nelson v. State (D used a dump truck to pull his truck from a marshy area. Court held that necessity can only be raised where D’s criminal actions were necessary to prevent an even greater harm from occurring). People v. Unger (D escaped from prison claiming it was necessary to prevent being raped or killed by other inmates. Court held that an escaped prisoner can claim necessity if the choice was the lesser of two evils).
Elements: At C/L, the elements for the necessity defense are: 1) the harm sought to be avoided must be greater than the harm committed, 2) there can be no third alternative that would have avoided the harm, but would be non-criminal or a less serious crime, 3) the harm must be imminent, and 4) the situation was not brought about by D’s careless or reckless conduct. While duress required fear of imminent death or bodily harm, necessity can be used as a defense to avoid non-serious bodily harm or even property damage.
Homicide: At C/L, courts were reluctant to allow necessity as a defense where there was an intentional killing. The Queen v. Dudley & Stephens (sailors ate the cabin boy to fend off starvation. Court held that actions are not justified under necessity when one kills an innocent to save his own life).
Civil Disobedience: Necessity defense is almost always rejected in situations of civil disobedience. US v. Schoon (To protest US aid to El Salvador, D trespassed in the IRS claiming political necessity. Court held the necessity defense invalid b/c there were lawful ways to bring about changed gov’t policies).
MPC: While the C/L says D is justified if he reasonably believed he was avoiding the greater evil, the MPC requires this belief be actually true. Moreover, the MPC gets rid of the imminency requirement and also says that D cannot use the defense if he intentionally caused the situation. However, if he recklessly or negligently created the necessity, he may claim the defense but may still be held for crimes of recklessness and negligence. Additionally, the MPC allows the defense in homicide cases.
Self Defense (Justification)
Generally, self defense is the right to defend oneself against the use of unlawful force. The defense is a complete one, leading to acquittal.
Elements: At C/L, the elements required for self defense are 1) D must have reasonably believed he was resisting the present or imminent use of unlawful force, 2) the degree of force used by D must not have been more than was reasonably necessary to defend against the threatened harm, 3) the force must not have been deadly unless he reasonably believed the danger being resisted was also deadly, 4) D must not have been the aggressor, unless he was A) a non-deadly aggressor confronted with an unexpected use of deadly force, or B) he withdrew after his initial aggression and the other party continued to attack, and 5) D must not have been in a position from which he could reasonably retreat with complete safety.
US v. Peterson (D was convicted of manslaughter for shooting and killing V whom he caught stealing windshield wipers. D took a gun and told V to leave and V came at him with a lug wrench. The court held D was the aggressor and he was therefore not entitled to a claim of self defense).
MPC: The MPC rule differs from the C/L in that it is drafted in terms of the actor’s subjective belief in the need to use force. His actions are justified even if his belief the force was necessary was not reasonable. Moreover, the MPC replaces the imminency requirement with the phrase "immediately necessary…on the present occasion." Therefore, the MPC construes this liberally allowing action prior to what would be acceptable at C/L. Moreover, unlike at C/L, under the MPC force that is not likely to cause death is still considered deadly force if the actor’s purpose was to kill.
Self Defense: Non-deadly force: At C/L and in the MPC, one may always use non-deadly force to protect against an unlawful aggressor.
Self-Defense: D as Aggressor:
C/L: at C/L, when D is the aggressor, he loses his right to use force. However, D may regain his right to self-defense if he withdraws from the fight in a way that should reasonably be interpreted as indicating the danger is over. Moreover, if D uses non-deadly force and the V responds with deadly force, some jurisdictions say that D immediately regains his right to self-defense.
MPC: The MPC does not allow the use of deadly force by one who "with purpose of causing death or grievous bodily harm, provoked the use of force against himself within the same encounter." However, under the MPC, a non-deadly aggressor does not lose the privilege of self-defense if the other party escalates the conflict by using deadly force.
Self-Defense: Retreat Requirement
C/L: At C/L, some jurisdictions say a person must retreat rather than use deadly force if they can retreat in complete safety. However, most jurisdictions say that you can use non-deadly force rather than retreat. Additionally, some jurisdictions have created a castle exception saying that one does not have to retreat within one’s own dwelling, even if he could do so in complete safety.
MPC: Under the MPC, a person cannot use deadly force against an aggressor if he can avoid the necessity with complete safety by retreating. Therefore, it incorporates the retreat rule. Moreover, the castle exception does not apply in the MPC if the actor was the initial aggressor. The MPC sometimes requires retreat in the workplace
Self-Defense: Effect of Mistake:
D may have a mistaken belief that he 1) is about to be attacked, 2) that the force used against him is unlawful, 3) that only deadly force will repel the threat, and 4) that retreat could not be accomplished safely.
C/L: At C/L, most states apply an objective standard to mistake in a self-defense claim. As long as D’s mistakes were reasonable, all courts will allow the defense. However, if D’s mistake is unreasonable, most states hold that he loses his claim of self-defense. People v. Goetz (D’s claim of self-defense is valid only if he reasonably believed that one of the victims was about to use deadly force upon him). Nevertheless, even courts that use an objective standard for reasonableness of mistake will typically take into account the D’s physical disadvantages or D’s past experiences and knowledge. People v. Goetz (D was allowed to show evidence that he was previously mugged and this contributed to his belief of danger in the present encounter).
MPC: By contrast, the MPC (and a minority of courts) hold that even an unreasonable mistake as to the need to use self-defense will protect D.
Self-Defense: Battered Women
Courts don’t typically change the rules of self-defense in situations where a woman kills her spouse because she believes it is the only way to protect herself from ongoing battery. The courts still ask what a reasonable woman would do in D’s situation, taking into account prior history of abuse but not the particular psychology of the woman herself. Moreover, nearly all courts continue to require the danger be imminent and have not broadened this to cover situations where the woman attacked her husband in his sleep. State v. Norman (Court held that D must have a fear of imminent death or great bodily harm to claim self-defense).
Imperfect self-defense:
C/L: at C/L, D was sometimes entitled to a claim of imperfect self-defense if he killed in self-defense but failed to satisfy one of the requirements for acquittal. For example, he may reduce a murder charge to voluntary manslaughter even if he was the initial non-deadly aggressor and therefore lost his right to self-defense. Moreover, if D makes an unreasonable mistake about the need for force, or about the unlawfulness of the other party’s force, many states will give the claim of imperfect self-defense.
MPC: Under the MPC, an unreasonable belief in the need for deadly force will give rise to manslaughter if D was reckless in his mistake. If the mistake was merely negligent, under the MPC he can’t be charged with anything higher than criminally negligent homicide.
Defense of Others
A person may use force to defend another in similar circumstances in which he would be justified in his own defense. People v. Kurr (A pregnant D killed her boyfriend after he punched her in the stomach. Court held that the defense of others extends to protecting nonviable fetus’).
C/L: At C/L, some states have an alter-ego rule holding that when a person comes to the aid of another, they are placed in the shoes of the person being aided. However, this is no longer the majority rule. In most states, a person that acts on a reasonable belief still has the defense, even if the person being aided would not.
MPC: The MPC says that one can use force on an aggressor to protect a 3rd party if 1) under the circumstances, as the actor believes them to be, the 3rd party would be justified in using force in self-defense, and 2) they use no more force than the party themselves would be entitled to use in self-protection based on the circumstances as they believe them to be. Therefore, this goes against the C/L alter-ego rule instead basing the justification on whether the actor made a reasonable estimate of the danger to the 3rd '''''party.
Defense of Property
C/L: A person has a right to use non-deadly force to defend his or her property against wrongful taking or wrongful entry on one’s real property. The degree of force cannot be more than appears reasonably necessary to prevent the taking or entry. Deadly force is not allowed, unless one is defending their dwelling. In this case, they may use deadly force if they believe the aggressor intends to imminently enter and commit a felony or other serious crime.
MPC: Once a dispossessor uses deadly force to take one’s property, one may retaliate with deadly force even if the dispossessor is trying to retreat.
Mechanical devices:
C/L: traditionally, D could use a mechanical deadly device in situations where D himself could use deadly force (e.g. spring gun shoots an armed and dangerous burglar).
MPC: One can never use a spring gun or other mechanical device to cause harm when one is not present.
Recapturing Property:
C/L: While most jurisdictions held that D could use reasonable non-deadly force to recapture property immediately after the taking, some jurisdictions held that if a substantial period of time elapsed, one cannot use force to regain possession. They must seek a legal remedy.
MPC: The MPC view is that D may use force to retake his property at any time, provided the owner believes the other has no claim of right to possess the object.
Insanity Defense (Excuse)
Generally, if a D can show that he was insane at the time of the act, he may be excused from liability. At C/L, a successful insanity defense typically requires that D be involuntarily committed to a mental institution. Jones v. US (holding that a mandatory commitment procedure does not violate the constitution). Additionally, many states won’t allow evidence relating to D’s mental disease except as part of an insanity defense. The M’Naghten Rule, or the "right from wrong" rule, states that if as a result of a mental disease that causes a defect in D’s reasoning powers he 1) did not understand the nature and quality of his act, or 2) he did not know his act was wrong, D may be excused. State v. Wilson (D shot his friend’s father thinking he was the mastermind of a conspiracy to control everyone’s mind. Court held that even if D appreciates his actions were illegal, if he believes the actions are not morally wrong he will not be criminally liable). Additionally, at C/L many states have coupled the M’Naghten Rule with the Irresistable Impulse Test that states that if D is unable to control his conduct, and therefore cannot choose between right and wrong he may not be liable.
MPC: MPC §4.01(1) says that D can be acquitted if "as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Therefore, the MPC basically codifies both the M’Naghten Rule and the irresistible impulse tests. US v. Freeman
Burden of persuasion: D bears the burden of production, but courts are split about who bears the burden of persuasion. About half the states require the prosecution show beyond a reasonable doubt that D was not insane. In the rest, D must show by a preponderance of the evidence that he was insane. State v. Green (holding that P has the burden of proof beyond a reasonable doubt).
Diminished Responsibility (Excuse)
Under the defense of diminished responsibility, a non-insane D argues that he suffered a mental impairment that made him unable to formulate the requisite intent. This defense is most often allowed in homicide cases, to reduce a first-degree murder charge to second degree charge by showing D was incapable of premeditating. However, most states reject this doctrine, saying that no evidence that D suffers a mental disease can be introduced unless it is part of a formal insanity defense. State v. Wilson (court held that D could not present expert psychiatric testimony because diminished capacity is an inconsistent, unpredictable and disfavored doctrine). Nevertheless, some people argue that diminished capacity is beneficial because it fixes defects in the insanity defense and permits a jury to avoid using the death penalty on mentally disabled killers.
Automatism (Excuse)
Under this defense, D tries to show that a mental or physical condition prevented his act from being voluntary. The condition typically must be persistent, enduring and non-treatable. If the condition is treatable, failure to get help is typically sufficient to establish mens rea. At C/L, most courts allow this defense as distinct from the insanity defense.
MPC: In the MPC, dissociative states are typically treated as though there was no act. Evidence goes to defeat the prima facie case that a crime took place by saying D is not liable if he does not commit a voluntary act. Involuntary acts include reflexes, actions during hypnosis, or movement while unconscious. MPC §2.01.
Voluntary Intoxication (Excuse)
C/L: At C/L, typically voluntary self-induced intoxication was never a defense in a general intent crime. However, in a specific intent crime D could show that his intoxication negated the mens rea. Commonwealth v. Graves (D, intoxicated, burglarized and robbed an old man that later died. Court held that D could produce evidence that would show he lacked the necessary mens rea). However, if D had the required intent prior to getting intoxicated, the fact that D’s being drunk prevented him from having the intent at the time of the actus reus, will not necessarily excuse liability. While voluntary intoxication may negate the mens rea for purpose or even knowledge, it will not negate recklessness.
MPC: The MPC does not distinguish between general and specific intent crimes. Rather, it allows D to show that his intoxication, even voluntary, prevented him from having the requisite mens rea. Therefore, even self-induced intoxication could prevent D from having the requisite intent. Moreover, if one is consciously aware of a substantial and unjustifiable risk, one is reckless. However, if you are voluntarily intoxicated, the MPC still holds you are reckless even if you lack awareness if you would have otherwise been aware if not drunk.
Involuntary Intoxication (Excuse)
At C/L, when D is not to blame for being intoxicated, he is entitled to acquittal in all situations where voluntary intoxication is a defense. Moreover, he may also have a defense in general intent crimes if he can show that as a result of being intoxicated he was temporarily insane. However, most courts reject defenses based on alcoholism or drug addiction. Powell v. TX (D’s defense of chronic alcoholism failed when convicted of being drunk in public). In the MPC, involuntary and pathological intoxication are affirmative defenses if the intoxication caused D to suffer a mental condition constituting insanity under the Code.
Duress (Excuse)
C/L: D commits a crime under duress if he performed the crime because of a threat of, or use of force by a third person. Elements require 1) a threat by a third party, 2) that produces a reasonable fear in D, 3) that he will suffer immediate or imminent, 4) death or serious bodily harm. At C/L, the duress defense is not available for homicide, although some states allow an imperfect defense that can reduce the severity from first-degree premeditated murder to second degree spur of the moment murder. At C/L, a duress defense is available for felony murder. People v. Anderson (D kidnapped and killed a girl at direction of a third party who threatened to harm D if he didn’t; Court held that duress is not a defense to murder, but may be a defense to felony-murder).
Imminence of harm: The threat of future harm is not sufficient, although modern courts and the MPC have relaxed this requirement. US v. Contento-Pachon (Colombian national, under threat from third party, swallows balloons filled with cocaine. Court held that D could assert the defense of duress under threat of future harm when the harm is likely to occur so quickly that D cannot escape the situation).
MPC: Under the MPC, the duress defense is available where the threat to D was sufficiently great that a person "of reasonable firmness" in D’s situation would have been "unable to resist." MPC §2.09(1). This is broader than the C/L because it abandons the requirement of deadly force and imminency. Moreover, the defense is generally applicable and therefore may be raised in murder cases.
Homicide (Murder)
C/L: At C/L, murder was defined as the unlawful killing of a human being with malice aforethought. Malice aforethought is basically a term of art that refers to one of four types of mens rea in most states: 1) intent to kill murder, 2) intent to commit grievous bodily injury murder, 3) depraved heart or reckless indifference to human life murder, and 4) felony murder (killing occurring during the course of a dangerous felony). The C/L did not initially differentiate between murder and manslaughter, and did not split murder into degrees. Early statutes, however, differentiated for the purpose of separating out the more heinous murders, such as lying in wait and by poison. PA was the first to adopt such a statute, saying that any murder that was "willful, deliberate and premeditated" was murder in the first degree. Originally manslaughter consisted of homicide without malice aforethought and without justification or excuse. As it developed, manslaughter began to split into voluntary vs. involuntary. Voluntary manslaughter covered the situation where the homicide was intentional but done in the heat of passion upon adequate provocation. Involuntary manslaughter covered the situations where 1) the homicide was unintentional but the reckless behavior was not enough to constitute a depraved heart, or 2) cases where the actor caused the death in the commission of an unlawful act (misdemeanor-manslaughter rule).
Elements: At C/L, the prosecution ahd to show 1) actus reus (affirmative conduct by D or an omission where D had a duty to act), 2) corpus delecti, a dead victim, 3) mens rea (above), 4) proximate cause between D’s act and V’s death. Regarding corpus delecti, the modern trend is to recognize brain dead as a type of death. People v. Eulo (shooter hits victim who becomes brain dead. Hospital harvests the organs and shooter claims the hospital killed the victim. Court held that one who is brain dead is dead for the purposes of criminal liability.
Year and a Day Rule: Regarding proximate cause, most states continue a C/L rule saying that the victim must die within a year and a day of D’s actus reus for D to be liable for the murder.
MPC: The MPC states that a person is guilty of criminal homicide if he takes the life of another purposely, knowingly, recklessly or negligently. The MPC divides homicide into three separate offenses: 1) murder, 2) manslaughter, and 3) negligent homicide. The MPC does not define different degrees of murder. Rather, it says criminal homicide constitutes murder when 1) it is committed purposely or knowingly (similar to C/L intent to kill), 2) it is committed recklessly under circumstances manifesting extreme indifference to human life (similar to C/L "depraved heart"), and 3) recklessness and indifference are presumed if the actor is engaged in the commission of or attempt to commit robbery, rape, arson, burglary, or kidnapping. Therefore, the MPC gets rid of the C/L intent to commit grievous bodily injury murder, arguing that it is appropriately covered under reckless indifference to human life. Additionally, the MPC gets rid of the express felony murder rule, creating only a presumption of reckless indifference. The MPC also defines a set of aggravating circumstances and mitigating circumstances intended to help the jury determine whether a death sentence is appropriate. Aggravating circumstances include: 1) D was previously convicted of murder, 2) at the time of the murder D also committed another murder, 3) D knowingly created a great risk of death to many people, 4) murder was for pecuniary gain, 5) murder was especially heinous. Mitigating circumstances include: 1) no prior criminal activity, 2) murder was committed under EMED, 3) victim consented to homicidal act, 4) D was an accomplice to a murder committed by another, etc.
Intent to kill murder:
C/L: This is the most common state of mind for murder and exists when D desires to bring about the death of another. Moreover, the intent usually exists when D knows that death is substantially certain to occur, even if he does not actively desire the death. However, just because there is intent to kill does not mean it is murder. Voluntary manslaughter, for instance, can occur when D kills in the heat of passion. Therefore, the mental state of intent to kill may have additional mitigating factors that reduce the offense.
MPC: this is covered in MPC § 210.2(1)(a) saying criminal homicide is murder when it is done purposely or knowingly.
Intent to cause serious bodily injury murder:
C/L: Most state apply a subjective standard to the risk of serious bodily harm, saying that D has the required mens rea only if he actually knew there was a high probability of serious harm to V. Typically, the fact that a reasonable person may have known is not sufficient.
MPC: The MPC does not recognize this type of murder. It regards the "reckless indifference to human life" or "depraved heart" standard to be enough.
Reckless indifference to human life or "Depraved Heart" murder:
C/L: Almost all states hold D liable for acting w/ great recklessness or extreme indifference to the value of human life. Courts are split about whether D has the requisite "depravity" if he is unaware of the risk involved with his conduct.
MPC: The MPC has a similar provision under § 2.10(2)(b). However, unlike typical C/L, the MPC follows a subjective standard saying that D is only reckless if he "consciously disregards a substantial and unjustifiable risk." Therefore, he must be aware of the risk involved. Nevertheless, if D fails to appreciate the risk b/c he is intoxicated, even the MPC would allow conviction.
Felony Murder:
C/L: Under the C/L felony murder rule, if D kills another (even accidentally) while committing certain other felonies, the killing is murder. The intent to commit any of certain felonies unrelated to homicide is deemed sufficient to meet the mens rea requirement for murder.
Inherently dangerous test: Most courts today restrict the application of the FMR using the inherently dangerous test, saying that only felonies inherently dangerous to life and health count for this rule. Courts use two standards for how to determine if a felony is inherently dangerous, 1) judging dangerousness in the abstract (e.g. asking whether the crime in the abstract is dangerous), and 2) evaluating whether the felony was dangerous based on the facts of the particular case. People v. Burroughs (person unlicensed to practice medicine, kills a patient. The court held the felony murder rule could not be applied because unlicensed practice of medicine, in the abstract is not inherently dangerous. In courts that judge the inherent dangerousness of felonies in the abstract, they typically consider the following dangerous: robbery, burglary, rape, arson, kidnapping. Theft-related felonies like larceny, embezzlement and false pretenses are not typically considered dangerous. People v. Fuller (two guys stealing tires got into a high speed chase that resulted in a third party being killed. The court held that the felony murder rule imposed first-degree murder for deaths caused by another felony, including burglary, even if the death was accidental.) This has caused some critics to question why breaking into cars on deserted lots w/o using weapons is inherently dangerous. They would argue that applying the felony murder rule automatically makes this conduct equally culpable as a cold-blooded, premeditated murder. This may be why the MPC chose not to adopt the FMR per se. Rather, it merely establishes a rebuttable presumption of recklessness allowing the prosecution to go after the D using a "depraved heart" theory of murder. Under the MPC, D can rebut this presumption with evidence that he did not act with reckless indifference whereas at C/L, the FMR made D automatically guilty of murder.
Natural and Probable consequences: There must be a causal relationship between the felony and the killing. In addition to being the but for cause of the killing, the felony must also be the proximate cause of the death. Typically, D is only liable for the death based on the FMR if the death was the natural and probable consequence of D’s actions. For example, where a police officer kills a bystander, courts are split about whether the D is the proximate cause of the death. Where the person who dies is one of the robbers, courts are even more reluctant to apply the FMR. Moreover, the killing is probably the natural or probable consequence of D’s action, and the FMR therefore applies, if the actions are "in the commission of" the felony. This includes killings that occur when a felon tries to escape, or when a victim dies trying to escape, or even if the killing is done before the felony but was "in furtherance" of the felony. Moreover, in a situation where the FMR may be applicable, it is useful to check whether the depraved heart murder theory may also apply.
Killing must be independent of the felony: For application of the FMR at C/L, the felony must be independent of the killing. This prevents FMR from turning any attack that results in death into automatic murder. People v. Smith (D and her boyfriend beat D’s child to death. The court held felony child abuse that results in death merges w/ homicide which precludes conviction of second degree murder on a FMR theory). (e.g. D kills V in heat of passion under circumstances warranting voluntary manslaughter. Manslaughter is "inherently dangerous" but the FMR does not apply b/c the felony is not independent of the killing.)
Accomplice liability of co-felons: The FMR often combines with rules of accomplice liability. If two ppl work together to commit a felony, and one of them commits a killing during the felony, the others may also be guilty of felony murder. Most courts find all co-felons liable for a killing by one of them if it was 1) committed "in furtherance" of the felony, and 2) a natural and probable result of the felony.
MPC: The MPC gets rid of the express felony murder rule, creating only a presumption of reckless indifference when one is engaged or is an accomplice in the commission of, or an attempt to commit robbery, rape, arson, burglary, and kidnapping. This rebuttable presumption of recklessness allows the prosecution to go after the D using a "depraved heart" theory of murder. Under the MPC, D can rebut this presumption with evidence that he did not act with reckless indifference whereas at C/L, the FMR made D automatically guilty of murder.
First Degree Murder
MPC: The MPC does not recognize degrees of murder. It attaches no significance to whether D did or did not premeditate.
C/L: Most states recognize at least two degrees of murder. First degree murder, in most states, is a killing that is willful, deliberate and premeditated. The C/L concepts of lying in wait and murder by poison became the foundation for the concept of premeditation. Even a killing to prevent suffering can be first-degree murder if it is willful, deliberate and premeditated. State v. Forrest (D shoots his terminally ill father to prevent suffering and is convicted of first degree murder).
Willful, Deliberate, and Premeditated: Courts do not require a long period of time for premeditation. State v. Schrader (a man in a gun store got into an argument with the owner and stabbed him 51 times. The court held that a killing can be premeditated even if the intent to kill did not arise until the instant the killing took place). Deliberation and premeditation can be shown by circumstantial evidence including 1) planning activity prior to the killing, 2) evidence of motive that contrasts with a sudden impulse, and 3) a manner of killing so precise that is suggests D had a preconceived design. Intoxication may be a defense to first-degree murder if the D is so drunk he is unable to deliberate or premeditate. However, this is not typically a defense to second-degree murder.
Second Degree Murder
MPC: the MPC does not divide murder into degrees.
C/L: In most states, murders that are not first-degree are second-degree. These typically involve murders that 1) lack premeditation, or 2) D premeditates but his intent was just to do serious bodily injury, rather than kill, or 3) where D did not intent to kill but was recklessly indifferent to the value of human life, and 4) felony murders in which a killing is committed during the course of felonies other than those specified in the first-degree murder statute (e.g. ones other than rape, robbery, arson, burglary, etc.).
Death Penalty
The majority of states authorize the death penalty for some types of murder. It is not necessarily a violation of cruel and unusual punishment protected against in the 8th Amend. Gregg v. Georgia (holding that the death penalty does not violate the 8th Amend if it conforms to contemporary societal standards of decency, and is not excessive). The SC has held that a state’s death penalty scheme cannot be arbitrary and capricious, including providing too much discretion to juries. Many states avoid this problem by listing aggravating circumstances such as the presence of torture, to help juries weigh the decision. In Woodson v. NC, the court held it unconstitutional for a state to make the death sentence mandatory for certain crimes. Moreover, the 8th Amend appears to prevent using the death penalty against Ds that do not themselves kill, attempt to kill, or intend that a killing take place. Enmund v. Florida (D drove the getaway car while accomplices go into a farmhouse and murder the inhabitants. Court held he could not be put to death.) However, if the D is a major participant in a felony and is recklessly indifferent to human life, this may be enough to constitute the death penalty. Tyson v. Arizona (brothers broke their father out of jail and their father then murdered a family while the brothers were present). Moreover, the SC probably will not allow the death penalty for crimes other than murder, such as rape. Coker v. Georgia.
Voluntary Manslaughter
General C/L: Originally manslaughter consisted of homicide without malice aforethought and without justification or excuse. As it developed, manslaughter began to split into voluntary vs. involuntary. Voluntary manslaughter covered the situation where the homicide was intentional but done in the heat of passion upon adequate provocation. Involuntary manslaughter covered the situations where the homicide was unintentional, and either 1) the reckless or negligent behavior was not enough to constitute a depraved heart, or 2) cases where the actor caused the death in the commission of an unlawful act (misdemeanor-manslaughter rule).
General MPC: The MPC § 2.10.3 recognizes manslaughter in two cases: 1) criminal homicide committed recklessly, but without extreme indifference to the value of human life, and 2) cases that would otherwise be murder but is committed under the influence of extreme mental or emotional disturbance (EMED) for which there is reasonable explanation or excuse. Therefore, unlike the C/L, the MPC defense exists even where there is no provocation and there is sufficient cooling off time. Moreover, unlike the C/L heat of passion that applies only to intentional homicides, the MPC defense is broader applying generally to all homicides. And finally, the MPC says the reasonableness standard for the excuse should be judged "under the circumstances as [D] believes them to be" making it more subjective a test than at C/L.
"Heat of passion" manslaughter: The most common type of voluntary manslaughter is when D kills while in the heat of passion, or an extremely angry or disturbed state. Elements: Establishing involuntary manslaughter based on heat of passion requires 1) reasonable provocation that would have been sufficient to cause a reasonable person to lose his self-control, 2) D was in fact in a "heat of passion" at the time he acted, 3) the lapse time was not great enough for a reasonable person to cool off and regain self-control, and 4) D had not, in fact, cooled off when he killed. Note: if D fails #1 or #3 (he was provoked or hasn’t cooled off even though a reasonable person wouldn’t have been provoked or would have cooled off), D is probably only liable for second degree murder. If D fails #2 or #4 (he was never in the heat of passion or he had cooled off), he is more likely to be convicted of first-degree murder b/c his killing was in "cold blood."
Provocation: Therefore, to constitute voluntary manslaughter the provocation must be 1) sufficiently strong that a reasonable person would have lost self-control, and 2) strong enough that D himself lost control. While words alone originally were not enough to constitute provocation, no matter how abusive, Girouard v. State (husband killed wife after she said mean things and threatened to leave him), this is changing if the words convey meaning. Director of Public Prosecutions v. Camplin (holding that words alone can now be considered adequate provocation) The test is whether a reasonable person would have lost control upon hearing the words. Courts typically employ a reasonable person standard to determine whether the provocation was sufficient. While courts typically use an objective standard that does not look at the peculiar emotional characteristics of the D, they may take into account certain characteristics of the killer including age and sex. Director of Public Prosecutions v. Camplin (a 15 yr-old that killed a man that sodomized him argued that it was manslaughter b/c of provocation. The court held that in applying the reasonable person standard in manslaughter, the jury may consider characteristics of the killer that would increase the nature of the provocation). Additionally, adultery is almost always sufficient provocation.
MPC: does not require provocation. Instead, it uses the extreme mental or emotional disturbance (EMED) test for determining whether D had an explanation or excuse. Moreover, the MPC uses a more subjective test of reasonableness saying it is from the vantage point of a person in D’s situation "under the circumstances as D believes them to be."
Cooling Off Period: The time between the provocation and D actually killing the victim must be sufficiently short that 1) a reasonable person would not have cooled off, and 2) D himself did not cool off. Even if there is substantial cooling off period, if a new provocation occurs that would rekindle the passion of a reasonable person, the cooling-off rule is not violated even if the new provocation by itself would not inflame a reasonable person.
MPC: does not limit the EMED defense in situations where a substantial cooling off period existed.
Other kinds of manslaughter:
Imperfect self-defense: Some states give D manslaughter for imperfect self-defense, when D killed to defend himself but was not entitled to acquittal because 1) he was unreasonably mistaken about the existence of danger, 2) he was unreasonably mistaken about the need for deadly force, or 3) he was the aggressor.
Imperfect Defense of Others: If D uses deadly force in defense of another, but doesn’t meet all requirements for acquittal, some courts will give him voluntary manslaughter instead of murder.
Mercy Killings: Some courts give D a lesser verdict of manslaughter for mercy killings.
Involuntary Manslaughter
C/L: Involuntary manslaughter covered the situations where the homicide was unintentional, and either 1) the reckless or negligent behavior was not enough to constitute a depraved heart, or 2) cases where the actor caused the death in the commission of an unlawful act (misdemeanor-manslaughter rule). Most states require showing D’s behavior was grossly negligent and D disregarded a very substantial danger of serious bodily harm or death. Where D uses an object that is inherently dangerous (e.g. firearms) a court is more likely to find him guilty of involuntary manslaughter.
Awareness of Risk: Courts are split about whether D can be liable for manslaughter if he was unaware of the risk posed by his conduct. State v. Williams (holding that simple negligence where D should have known or the risk can be enough to support manslaughter). However, most do require actual awareness. They argue that this is better because a negligent person is unaware of the risk and therefore cannot be deterred by a thought of possible punishment. Others argue that the threat of punishment makes people think harder about their conduct generally, making society safer.
MPC: The MPC defines the crime Negligent Homicide to cover cases where D behaves with gross negligence but is not aware of the risk posed by his conduct.
Misdemeanor-Manslaughter Rule: Just as the felony-murder rule permits a murder conviction when death occurs during the course of certain felonies, the MMR permits an involuntary manslaughter conviction when death occurs during the commission of a misdemeanor or other unlawful act. Most states apply this rule, arguing that the unlawful act substitutes for gross negligence. An unlawful act is any misdemeanor, or any felony that is not inherently dangerous and therefore does not suffice for the FMR. The most common MMR cases involve battery and violation of traffic laws. Regarding causation, if the violation is malum in se, or dangerous in itself, cause in fact is usually sufficient without a showing of proximate cause. However, if the offense is merely malum prohibitum, or simply a violation of a public-welfare regulation, most states require a showing of proximate cause. In these cases, prosecutors must show that the death was the natural or foreseeable consequence of the unlawful act.
MPC: The MPC abolishes the MMR in its entirety. However, under the MPC the fact that an act is unlawful is evidence the act was reckless, which is the mens rea required for manslaughter.
Negligent Homicide
C/L: Was basically involuntary manslaughter, where some jurisdictions required D to be aware of the risk he was taking and others did not.
MPC: defines Negligent Homicide as homicide "committed negligently." §210.4
Battery, Assault, and Mayhem
Battery: battery exists where D either causes 1) bodily injury, or 2) offensive touching. In most states, it is probably sufficient that D’s act was committed recklessly, or even negligently. Battery is typically a misdemeanor
Assault: exists where D either 1) attempts to commit a battery, or 2) places another in fear of imminent danger. Words alone are not enough. While simple assault is a misdemeanor, many states recognize various types of felonious aggravated assaults (e.g. w/ intent to kill or intent to rape).
Mayhem: C/L crime of mayhem is committed when D intentionally maims or permanently disables his victim. It is basically a battery where the injury is permanent.
Rape
C/L: Rape is typically defined as unlawful sexual intercourse with a female without her consent. All that is required is sexual penetration. There is a spousal exception at C/L, but this has been weakened by statutory reform. A minority now permit prosecution of forcible rape even it husband and wife are living together. Another minority eliminates the exemption if they are separated or living apart.
MPC: The MPC does not use sex-neutral terms, and it keeps the marital immunity for husbands. It provides a defense for mistake of age. It expands the behavior that can constitute rape, by defining sexual intercourse as vaginal, oral or anal penetration. It provides for degrees of rape, allowing grading of punishment, and it focuses on actors behavior not though process, by not having a consent element.
Consent: Sex must occur w/o the woman’s consent. People v. John Z. (holding that a female’s withdrawal of consent nullifies any earlier consent). If D causes V to become drunk, drugged or unconscious, lack of consent is present. In some jurisdictions, consent is lacking even if D did not induce the state. State of NJ in the interest of M.T.S. (17 yr old convicted of raping a 15 yr-old who was asleep). Fraud in the factum, where the act consented to differs from the act that takes place, typically does vitiate consent. However, fraud-in-the-inducement, where fraud is used to obtain consent to sex, but V knows she has consented to sex, it typically does not vitiate consent. Boro v. Superior Court (man acquitted of rape after fraudulently induced a woman to have sex with him under the impression it would cure her illness).
MPC: The MPC does not mention consent when defining rape. It is defined in terms of the man’s act’s of aggression rather than the woman’s consent. Moreover, the MPC does not prohibit fraud in the factum.
Mistake of fact as to consent: Most courts view rape as a crime of general intent. Therefore, prosecution just has to show that D voluntarily committed the sexual act w/ a morally blameworthy mind. Mistake of fact can sometimes be a defense when it negates the mens rea. Commonwealth v. Sherry (three doctors convicted of raping a nurse despite a claimed mistake-of-fact about her consent).
Force: The vast majority of rape statutes apply only where the intercourse is committed by force, unless the victim is unconscious or sleeping. State of NJ in the interest of M.T.S (supra). A threat of imminent serious bodily harm will substitute for actual physical force in most states, while a general fear of force typically will not. State v. Alston (ex-boyfriend uses general fear to get sex and girl does not resist. Court held that a general fear of force is not sufficient for a rape conviction because the threat must occur at the time of the rape). Additionally, implied or future threats also will not suffice. Rusk v. State (victim asked if she had sex with D if he would let her go w/o killing her and he said "Yes". This implied threat was not enough to prove threat of force).
Resistance: Traditionally, rape did not exist unless the woman physically resisted. However, this has been weakened. Now, no state requires the woman resist to the utmost. Rather, the woman must make reasonable resistance as measured by the circumstances. Rusk v. State (man meets a 21 yr-old, takes her up to his house, and has sex w/o using force, except light choking. The Court held that the victim must show resistance and D must use actual force). Moreover, traditionally verbal resistance was not enough. Commonwealth v. Berkowitz (college student takes his girlfriend into his dorm and has sex with her. She says "no" but does not physically resist. Court held that verbal resistance was not sufficient). However, in People v. John Z, a woman said she wanted to leave, after consenting to having sex, and the
Rape Shield Laws: prohibit or restrict evidence or cross-examination concerning a victim’s prior sexual conduct or reputation. These laws increase the risk that an accused person is denied the opportunity to introduce evidence that would demonstrate his innocence. Therefore, there may be issues with the 6th Amend right to confront and cross-examine accusers. State v. Herndon (interest in rape shield laws and D’s 6th Amend. rights must be weighed to determine what evidence is admissible); Lewis v. Wilkinson (victim’s diary entry raised questions about her consent. Court held that a rape shield law cannot exclude evidence that goes directly to issues of consent and motive in a rape trial).
Statutory Rape: all states establish an age of consent below which the law regards a female’s consent as impossible. In most states, even a reasonable belief that the girl was over the age is not a defense. Garnett v. State (a mentally disabled 20 yr-old has sex with his 13 yr-old girlfriend. Court held mens rea is not an element of statutory rape. It is strict liability). The fact that the girl encourages the sex is irrelevant.
MPC: The MPC allows the reasonable mistake defense.
MPC: A male is guilty of rape if, acting purposely, knowingly, or recklessly, he has intercourse with a female that is 1) less than 10 years old, 2) unconscious, 3) compelled to submit by force or threat of imminent death, grievous bodily harm, extreme pain, or kidnapping, or 4) impaired by drugs or intoxicants administered by D. There is a partial marital exemption, excluding conduct with a spouse unless the parties are living apart under a formal decree of separation. Therefore, like the C/L, the MPC says that only men can commit rape and only women can be victims. The MPC defines sexual intercourse to include genital, oral or anal penetration. The MPC does not mention consent, choosing rather to define rape in terms of a man’s aggressive acts. Moreover, the MPC does not prohibit fraud in the factum.
Theft Crimes
C/L: At common law, there were seven theft crimes: 1) larceny, 2) embezzlement, 3) false pretenses, 4) receipt of stolen property, 5) burglary, 6) robbery, and 7) extortion. If possession was obtained unlawfully, it is larceny. If possession was obtained lawfully it is embezzlement. If title was obtained unlawfully, it is false pretenses.
Larceny: the 1) trespassory taking, and 2) carrying away of 3) personal property 4) of another with intent to steal. Lee v. State (originally, C/L only punished taking of property that included force. Larceny was created to include nonforcible, nonconsensual taking of property).
Trespassory Taking: this requirement meant that if D was already in rightful possession of the property, it is not larceny. Therefore, courts distinguished between having possession vs custody of the property. Rex v. Chisser (a person in a jewelry store inspecting rings only had custody over the rings. Therefore, when he ran away with them, it was a trespassory taking); Topolewski v. State (D planned to steal meat from his company. The company was aware of the plot and set up to catch him. The court held there was no trespassory taking because the company consented to the taking).
Taking by Employee: where an employee steals from an employer, if the employee had some physical control over the property before stealing it the existence of trespassory taking is unclear. If the employee was a low level one, the court is likely to hold she only had custody and that the employer retained possession. Therefore, the employee could be guilty of C/L larceny. US v. Mafnas (an armored guard committed larceny when he took money out of bank bags while delivering them because he only had custody of the money prior to taking). Rex v. Bazeley (a bank teller that pocketed a customer’s deposit was not guilty of larceny b/c she had rightful possession not mere custody). If the employee is in a higher position, with broader authority, he usually will be deemed to have possession, not just custody. Therefore, if he appropriates the property for his own use, it is likely embezzlement.
Lost or mislaid property: If D finds lost or mislaid property, he may commit the requisite trespassory taking depending on his mental state. If he intends to keep the property at the time he finds it, it is probably larceny whereas if he does not initially intent to keep it, his possession is rightful and therefore not a trespass (even if he later decides to keep it). Brooks v. State (a person that found $200 someone had lost a month earlier spent it. The court held that larceny doesn’t take place unless the finder had reasonable ground for finding the true owner and intended to steal the property at the time they took possession).
MPC: The MPC changes the C/L trespass rule for lost or mislaid property. Under the MPC, D’s intent at the time he obtains the property is irrelevant. D is liable for theft only if "with purpose to deprive the owner thereof" he "fails to take reasonable measures to restore the property" to the rightful owner.
Fraud and larceny: If D gains possession by fraud or deceit, the requisite trespassory taking exists. This is called larceny by trick. Rex v. Pear (a man rented a horse to make a trip, but never returned it. The court held that possession obtained by fraud is a trespassory taking.
Personal Property: At C/L, larceny only existed where the property was tangible. Today, all states have expanded larceny to cover a number of intangible items. Lund v. Commonwealth (student that used computer services w/o authorization did not commit larceny because C/L does not prohibit the wrongful taking of services).
MPC: The MPC has removed this property limitation saying that "anything of value" is a possible object of theft.
Larceny and Intent to steal: larceny is only a crime if it is committed intentionally (purposely in MPC), not negligently or recklessly. There must be intent to permanently deprive the owner of the property. Intent to temporarily deprive is not sufficient. People v. Brown (a boy took a bicycle w/ intent to return it the same day. The court held that intent to temporarily deprive the owner does not constitute larceny). Moreover, if a D intends to use the property for a long time in a way that deprives the owner of a significant portion of the property’s economic value, the requisite intent to steal exists. People v. Davis (customer took a shirt off a rack, carried it to the counter claiming it was his own, and asked for a refund. He argued that he did not intend to permanently deprive the store of the shirt. The court held that intent to steal is established where there is a substantial risk of permanent loss).
Embezzlement: is the 1) fraudulent, 2) conversion, of 3) the property 4) of another 5) by one who is already in rightful possession of it. Rex v. Bazeley (bank teller that pocketed a customer’s deposit was guilty of embezzlement, not larceny). For embezzlement, D must convert the property by depriving the owner of a significant portion of its usefulness. He is not guilty of embezzlement until this conversion takes place. Moreover, the taking must be fraudulent. If D honestly believes he has a right to the propery, this usually negates the existence of fraud, even if his belief is unreasonable.
False Pretenses: Is 1) a false representation of a 2) material present or past fact which 3) causes the person to whom it is made to 4) pass title to 5) his property to the misrepresenter, who 6) knows that the misrepresentation was false, and intends to defraud. People v. Ingram (distinguishing larceny by trick from false pretenses saying false pretenses is a crime against title). There must be a false representation of a material present or past fact. People v. Whight (knowing his bank account was closed, a person continued to use his ATM card to get cash from grocery stores. The court held that an implicit misrepresentation of fact constitutes false pretenses). Moreover, the victim must rely on the misrepresentation. People v. Whight (the Safeway employee was held to have relied on the customer’s implicit representation that his bank account was valid). Note that D may not defend by saying that a reasonable person would not have relied on the misrepresentation. The gullibility of the victim is not a defense.
MPC: the MPC defines a single crime of "theft" that can be committed in various ways, including larceny, embezzlement, and false pretenses. Moreover, the MPC also defines extortion, receiving stolen goods, and a few others. The MPC takes the position that all thieves are equally dangerous and culpable. Given that the MPC combines all thefts, it does not require a "taking" or an "asportation." The MPC abolishes the property limitation, saying that "anything of value" are possible subjects of theft. The MPC also reject the C/L rule that you cannot steal from your spouse. §223 defines three levels of theft: 1) petty misdemeanor (under $50), misdemeanor ($50-500), and third degree felony (>$500).
INCHOATE CRIMES (ATTEMPT, CONSPIRACY, SOLICITATION)
ATTEMPT
All states punish certain unsuccessful attempts to commit crimes. Most attempt occur under a general attempt statute that does not specifically outline each individual attempt crime. Most statutes require 1) mens rea, and 2) actus reus. In particular, D must have the mens rea sufficient for the substantive crime itself. Moreover, D must have committed some overt act in furtherance of his plan. Under the MPC, this act must constitute a substantial step in the course of conduct planned to culminate in the commission of the crime, but only if the substantial step is strongly corroborative of D’s criminal purpose.
Mens rea for attempt: criminal attempt usually involves both the 1) intent to commit the acts constituting the actus reus, and 2) the specific intent to commit the substantive crime. D is generally only liable if he intended to do the acts which, if carried out, would have resulted in the commission of a crime. People v. Gentry (only a specific intent to kill satisfies the intent element of the crime of attempted murder.) Moreover, attempted felony murder is typically not a crime. Bruce v. State (In MD, attempted felony murder is not a crime. D, who shot a storekeeper while attempting to rob it at gunpoint, had no intent to kill). It may be enough in some jurisdictions to show that D knew that a result is substantially certain to occur, even if he did not desire the result to occur. Typically there can be no attempt to commit a crime defined in terms of recklessness, negligence or strict liability.
Actus Reus: all courts agree that D can’t be convicted of attempt by simply thinking evil thoughts, or plotting in his mind to commit a crime. There must be an overt act. Courts disagree on what suffices. US v. Mandujano (court held that preparation alone is not enough for attempt and that some appreciable fragment of the crime must be committed). The two major approaches used to determine if the overt act is sufficient are the 1) proximity test, and 2) the equivocality test. Under the proximity test, courts base their decision on how close D came to completing the offense. Older decisions required D come very close to success (last step), while modern courts typically only require a substantial step towards carrying out the plan. Commonwealth v. Peaslee (When D planned to burn a building, set up the explosives, but then changed his mind, the court held that preparation of a fire w/o intent to light is not attempt). People v. Rizz (D and three others planned to rob a man of his payroll but they couldn’t find him b/f they were arrested. The court held that they had to come closer to accomplishing the crime for it to be attempt). Under the equivocality test, courts don’t focus on proximity but rather on whether D’s conduct unequivocally manifests his criminal intent. Therefore, the act suffices regardless of how far away it is from the completion of the plan. People v. Miller (D threatened to kill Jeans and then approached him with a loaded rifle. The court held that when criminal intent is clearly shown, slight acts in furtherance of the crime constitute attempt).
MPC "Substantial Step" Test: The MPC incorporates aspects of both the proximity and equivocality test. Most conduct under both of these tests would be sufficient under the MPC, making it a fairly broad, unstringent approach. Under the MPC, conduct meets the act requirement if there is an "act or omission constituting a substantial step towards the commission of a crime that is strongly corroborative of the actor’s criminal purpose." State v. Reeves (when D and a friend planned to kill their homeroom teacher and steal her car, the court held that possessing materials to be used in the crime, at or near the crime scene, a jury can find a substantial step has been taken if it is strongly corroborative of the actor’s purpose). Other examples of conduct that would typically suffice include 1) lying in wait for the victim, 2) enticing the victim to go to the place contemplated for the crime, 3) "casing the joint" contemplated for the commission of the crime, 4) unlawful entry where the crime is to be committed, or 5) possession of materials to be employed in the crime, especially when they are specially designed for the unlawful purpose.
RENUNCIATION AS A DEFENSE FOR ATTEMPT
When D is charged with an attempt crime, most courts accept the defense of renunciation. To establish the defense, D must show that he voluntarily abandoned his attempt before the completion of the substantive crime. This is good because it provides a motive to desist prior to completion of the crime. Commonwealth v. McCloskey (The court held that a prisoner can abandon an escape plan and exonerate his criminal liability). All courts require the abandonment or renunciation be voluntary. Typically, it is not voluntary if D fears his imminent apprehension. However, if he just has a general fear of apprehension, not linked to a particular threat, the abandonment is probably voluntary.
IMPOSSIBILITY DEFENSE FOR ATTEMPT
Impossibility is generally raised where D has done everything in his power to accomplish the result he desires, but, due to external circumstances, no substantive crime has been committed. Most variants are unsuccessful today, but are still plausible in some cases.
Factual Impossibility: arises out of D’s mistake concerning an issue of fact. D basically says "I made a mistake of fact. Had the facts been as I believed them to be, there would have been a crime, but under the true facts, my attempt could not have succeeded." Modern courts reject this claim. People v. Thousand (D charged w/ attempted distribution of obscene materials to a minor when he chatted with a police officer posing as a 14 yr-old girl. The court hold that impossibility is not a defense to attempt). People v. Genoa (D was charged with aiding and abetting for giving money to an undercover agent to buy and then sell cocaine for a profit. The court held that you cannot aid and abet under accomplice liability if the crime was never committed by anyone.
True legal impossibility: A different defense arises if D is mistaken about how an offense is defined. If D engages in conduct he believes is forbidden by statute, but D is mistaken about the statute, he will be acquitted. These situations exist when, had the facts been as D supposed them to be, no crime would have been committed. The basic principle is that if D’s conduct would have been criminal had the facts been as D supposed them to be, he is guilty of attempt.
Inherent impossibility: If D’s act is, to a reasonable observer, so far-fetched that it had no probability of success, D may be able to assert the defense of inherent impossibility. Courts are split about whether to accept this defense.
MPC: Under §5.01, legal impossibility is not a true defense. The prosecutor must prove that there is a criminal statute punishing what D intended to accomplish. Under §5.01, the MPC says factual impossibility is not a defense to attempt. Moreover, the MPC does not allow a defense of inherent impossibility. However, the court may dismiss a prosecution if D’s conduct was so "inherently unlikely to culminate in the commission of a crime that neither such conduct nor the actor presents a public danger." § 5.05(2)
CONSPIRACY
The C/L defined conspiracy as 1) an agreement 2) between two or more persons 3) to do either an unlawful act or a lawful act by unlawful means. The mens rea required culpable intent. Prosecution benefited from getting a joint trial, and the admission of hearsay evidence from other members of the conspiracy. Krulewitch v. US.
The Agreement: While a meeting of the minds is not required, the parties must have communicated their intention to pursue an unlawful objective. An implied agreement through actions alone (no verbal agreement), is sufficient. Moreover, the prosecution can prove an agreement through circumstantial evidence. Commonwealth v. Cook (D and his brother met a girl, and his brother raped her while D did nothing. The court held that there was no conspiracy because D never made an express or implied agreement). Parties don’t have to agree to commit the substantive object crime, it is sufficient for D to just agree to help in the planning stages. Courts disagree about what to do with feigned agreements that sometimes arise with undercover cops. The traditional view is that there is no conspiracy unless there is a bilateral agreement. People v. Foster (D devised a plan to rob an old man, but his "co-conspirator" feigned agreement and told the police. The court held that its bilateral theory of conspiracy required actual agreement of at least two participants). Some states have the bilateral requirement arguing their solicitation statutes cover the unilateral case. However, solicitation typically only punishes someone who requests another to commit the crime, not when someone asks another to help with the crime.
MPC: Therefore, the modern view of conspiracy takes a unilateral approach, saying that an individual is liable for conspiracy if he "agrees with another person or persons" regardless of whether those persons are really part of the plan.
Mens Rea: Conspiracy is typically a specific intent offense that requires that you have 1) intent to agree, and 2) intent that the underlying offense be committed. A conspiracy to commit a substantive offense cannot exist w/o at least the degree of criminal intent necessary for the substantive offense itself. You must have at least the mental state required for the object crime. Moreover, proving conspiracy to commit murder requires a showing of intent to kill. People v. Swain (Swain was convicted of conspiracy to commit murder after his friend killed a boy in a drive-by. The court held that conspiracy to commit murder requires an intent to kill, and you can’t be guilty of conspiracy to commit an unintentional crime).
MPC: The MPC is not incredibly precise about the mens rea requirement for conspiracy. §5.03 states only that the agreement must have been made "with the purpose of promoting or facilitating" the commission of a crime.
Supplying goods or services: D’s are sometimes charged with conspiracy for supplying goods or services to others who committed or planned to commit a substantive crime. To be liable, D must be shown to have intended to further a criminal objective. People v. Lauria (D ran a telephone answering service which he knew was used by prostitutes and was charged with conspiracy to commit prostitution. The court held that a supplier of services who is aware they may be used in a crime may be convicted of conspiracy, depending on the seriousness of the offense and his stake in the venture). Therefore, the requisite desire can be shown circumstantially is the supplier has some stake in the venture. Moreover, if the supplier is providing a controlled substance he is more likely to be found a co-conspirator. Additionally, charging inflated prices can be evidence of intent to conspire. The more serious the crime, the more likely the supplier’s participation will be part of the conspiracy.
MPC: a supplier of goods or services must have "the purpose of promoting of facilitating" the commission of the crime. Mere knowledge is not enough. §5.03.
Conspiratorial Objective: traditionally, Ds could be convicted of conspiracy on proof they intended to commit immoral acts. Therefore, the fact that the act was not criminal was not an automatic defense.
MPC: The MPC rejects this, saying conspiracy only exists if D intends to perform an act that is explicitly criminal.
Overt Act Requirement: At C/L, the crime of conspiracy was complete as soon as the agreement was made. However, some states required some minor overt act in furtherance of the conspiracy. Even in these states, it was not necessary to show that each D committed an overt act. A single over act from any person was attributable to all. Under the MPC, the overt act is only required for non-serious crimes. For conspiracy to commit a felony, the MPC has no overt act requirement. §5.03(5)
Impossibility and Conspiracy: The same rules apply as with attempt. The defense of factual impossibility is always rejected.
Scope of Conspiracies: Multiple Parties: when not all the parties no each other, you may have to decide whether there is one large conspiracy or a series of smaller ones. Wheel conspiracies have a ring leader that participates with each of the conspirators, but they only deal with the leader not each other. Kilgore v. State. In a wheel conspiracy, the test for whether there is one large conspiracy covering the whole wheel or a series of smaller conspiracies involving the hub and each spoke is the community of interest test. There is a single conspiracy if 1) each spoke knows the other spokes exist, and 2) the various spokes recognize they have a community of interest. In a chain conspiracy, there is a distribution chain. The main test for a single conspiracy or multiple is also whether all partipants have a community of interest. Kilgore v. State.
MPC: the MPC asks whether and with whom D conspired to commit each crime. Only if all crimes were the object of the same agreement among all parties, is there a single conspiracy. Therefore, the MPC looks to each conspirator individually and decides with whom they agreed to commit specific crimes.
Duration of a Conspiracy: Finding the end of the conspiracy is important because the SOL only runs when the conspiracy has ended. A conspiracy will end if it is abandoned by all participants. However, at C/L abandonment was not a defense to the conspiracy charge. Conspiracy was complete as soon as the agreement was made. This is also the case when only one conspirator withdraws. At C/L, no act of withdrawal, even thwarting the conspiracy by turning others into the police, is a defense. People v. Sconce (D hired someone to kill a man but before the murder he changed his mind and called it off. The court held he was still liable for conspiracy).
MPC: The MPC relaxes the C/L rule, allowing D to withdraw and avoid liability if 1) his renunciation is voluntary, and 2) he thwarts the conspiracy.
Plurality: A conspiracy necessarily involves two or more people. This is called plurality. Under the C/L Wharton’s Rule, if a substantive offense is defined to necessarily require more than one participant, a prosecution of the substantive offense must be brought, rather than a conspiracy prosecution. This includes adultery, incest, bigamy and dueling. Gebardi v. US (D and woman agreed to go across state lines to have sex in violation of the Mann Act. The court held that wharton’s rule applied and they could not be charged with conspiracy). An exception to wharton’s rule, exists where there are more participants than were logically necessary to complete the crime. Ianelli v. US (D was convicted of both conspiracy and a substantive count for gamblihing violations. The law made it a federal crime for 5 or more people to conduct a gambling operation. The court held that wharton’s rule did not apply when there are a greater number of people than are required for the substantive offense).
MPC: The MPC almost completely rejects Wharton’s rule. The MPC says that D cannot be convicted of both conspiracy and the substantive crime. Therefore, under the MPC conspiracy merges with the substantive crime.
Punishment for Conspiracy:
Under the C/L, conspiracy does not merge with the substantive crime. Therefore, most states allow cumulative punishment for both the conspiracy and the substantive crime. Moreover, if there is a statutory purpose not to punish one party, the court will not convict that party of conspiracy. For example, in the case of statutory rape, all courts agree that the underaged person cannot be charged with conspiracy to commit statutory rape. At C/L, a husband and wife could not by themselves make up a conspiracy, but the MPC: MPC rejects this husband/wife rule, and also says that conspiracy and the substantive crime do merge, preventing cumulative punishment.
Conspiracy and Accomplice Liability
This deals with whether a member of a conspiracy is liable for the substantive crimes committed by other members of the conspiracy. Normally, each conspirator aids and abets the others in furtherance of the conspiracy. Where this is the case, a D that aids and abets another in accomplishing a substantive crime will be liable for the substantive crime per accomplice liability. However, questions become more difficult when D does not aid and abet the additional substantive crimes of his co-conspirators that are done in furtherance of the conspiracy, but without D’s direct assistance. The question is whether by mere membership, D becomes liable for these additional crimes. The traditional C/L view is that everyone in a conspiracy, by membership alone, is liable for the reasonably foreseeable crimes committed by others in furtherance of the conspiracy. Pinkerton v. US (brothers convicted of conspiracy for violations of the Internal Revenue Code. The court held that participation is enough to sustain the conviction for the substantive offenses done in furtherance of the conspiracy). Commonwealth v. Azim (D drove a car with his friends. His friends got out and beat and robbed a man. The court held that once a conspiracy is established, a member of the conspiracy is guilty of the criminal acts of his co-conspirators).
MPC: The MPC rejects the Pinkerton rule because the scope of vicarious liability is too broad. A co-conspirator must satisfy the MPC elements for accomplice liability from §2.06. Therefore, mere participation is not enough to make D liable for all reasonably foreseeable substantive offenses committed by co-conspirators in furtherance of the conspiracy. Rather, D must have solicited the commission of the offense, or aided or attempted to aid in its commission. §2.06.
ACCOMPLICE LIABILITY
Types:
C/L: At common law, there were four categories of participants in a crime: 1) principal in the first degree, who actually engaged in the act or omission that constitutes the criminal offense, 2) principal in the 2nd degree, who incites or abets and is present, either actively or constructively at the time of the crime, 3) accessories before the fact, who incites or abets but is not present at the time of the crime, and 4) an accessory after the fact, who intentionally assists the principal after the crime.
MPC: The MPC has only two types: 1) principals, who acting with the requisite mens rea, actually engages in the act or omission that cuases the crime, or acts through an innocent agent to commit the offense, and 2) an accomplice, who incites or abets with requisite intent before or during the commission of the offense. The most important rule is that an accomplice is guilty of the substantive crimes he assisted or encouraged.
Actus Reus:
One who aids, abets, encourages, or assists another to perform a crime, will himself be liable for the crime. Words, by themselves, may be enough to constitute the link b/w an accomplice and a principal, particularly if the words constitute encouragement and approval of the crime. Moreover, one can be an accomplice even without being present at the crime scene. The encouragement and assistance can take place before the actual occasion. Under the innocent agency doctrine, a secondary party is a principal in the first degree is his action cause a crime to be committed by an innocent agent. Baily v. Commonwealth (D was convicted of manslaughter when he instigated his blind neighbor to begin firing at police. The police then killed him. The court held that one who effects a principal act through an innocent or unwitting agent is a principal in the first degree). Mere presence at the crime scene is not typically sufficient to make one an accomplice. The prosecution must show that D was at the scene for the purpose of encouraging or approving the commission of the crime. State v. Vaillancourt (D was merely present at the location of a burglary and the court held that mere presence does not constitute "aid") c/f Wilcox v. Jeffrey (A reporter was convicted for aiding and abetting when he bought a ticket to an illegal jazz concert to report on it. The court held that presence and payment to attend the illegal show to benefit oneself, can constitute "aiding and abetting."
Attempt and Accomplice Liability: If D attempts to give aid, but the substantive crime never takes place because the principal is unsuccessful, D may be liable for the attempt. (A gives B gun to shoot V but B misses. A convicted of attempted murder). However, if the principal does not even attempt the crime, most courts will not hold D liable for attempt, but may find him guilty of solicitation. The MPC would hold him guilty for attempt.
Conspiracy as meeting the Act requirement: Older cases hold that if D is found to be in a conspiracy, he is automatically liable for any crimes committed by the other members in furtherance of the conspiracy. Pinkerton. However, under the MPC, the act of joining a conspiracy is not, by itself, enough to make one an accomplice to all the crimes carried out by co-conspirators. However, membership typically is strong evidence that D gave assistance or encouragement in the commission of the crimes.
Mens Rea: For D to have accomplice liability for the crime, the prosecution must show that 1) D intentionally aided or encouraged the other to commit the criminal act, and 2) that D had the mens rea necessary for the crime actually committed by the other. It is not enough that D intends acts that have the effect of inducing another to commit a crime. D must have the purpose of bringing about the crime. Commonwealth v. Koczwara (The court held an employer cannot be imprisoned for the criminal acts of his employees committed on his premises without his presence, participation or knowledge.) State v. Hoselton (D was charged and convicted of acting as a lookout while his friends broke into a boat’s storage locker. The court held that D lacked the requisite intent to help and was therefore not guilty of being a lookout). It is especially important to watch out for a situation where the accomplice knows '''''his conduct will encourage or assist, but D does not intend or desire to bring about the criminal result. Most courts hold that D is not an accomplice in this situation.
Reckless or negligent crimes: If the underlying crime does not require intent but merely recklessness or negligence, some courts hold D liable as an accomplice upon showing that D was reckless or negligent concerning the risk the principal would commit the crime. (e.g. lending a car to a drunk driver). For example, some courts impose accomplice liability on D where X commits a killing of reckless indifference to human life, and D encourages X in the conduct leading to death. (e.g. drag racing) This is consistent with the concept of "depraved heart" murder.
Punishment: An accomplice may be convicted of a more serious offense than the primary perpetrator. People v. McCoy (D1 and D2 were tried for murder in a drive-by. D1, who actually shot the victim, claimed self-defense and reduced to manslaughter. D2 was convicted of first degree murder. The court held that an aider and abettor can be convicted of a greater offense if he has a more culpable mens rea).
Additional Crimes of Principal:
When a principal commits not only the offense that the accomplice assisted or encouraged, but also other offenses, the accomplice will be liable for these additional crimes if 1) the additional offenses are the natural and probable consequences of the conduct that D did intend to assist, and, 2) the principal committed the crimes in furtherance of the original criminal objective D was trying to assist. State v. Linscott (D was convicted of murder, under accomplice liability, when his friend shot and killed a man the two intended to rob. The court held that the foreseeable consequence rule of accomplice liability holds him liable, notwithstanding an absence of the same culpability required for conviction as the principal of the crime. Therefore, D must show that the additional offenses were unlikely or unforeseeable. This is different than the MPC (see below). Where the additional offense is death, the accomplice may end up being guilty not because of the natural and probable consequences rule, but because of the FMR and MMR rules.
MPC: The MPC rejects the basic principal that an accomplice can be held liable for the natural and probable crimes. The MPC only holds D liable for crimes which he intended to aid or encourage.
Guilt of the principal:
C/L: At C/L, the principal had to be guilty for the accomplice to be convicted. However, if the principal is convicted based on excuse, the accomplice can be convicted of aiding and abetting whereas if he is acquitted b/c of justification, the accomplice cannot be convicted. US v. Lopez (D’s boyfriend broker her out of prison. The court held that D could be convicted of aiding and abetting even if the principal was not identified, as long as there is proof the principal committed the crime). If they are tried in the same trial, usually if the principal is acquitted the accomplice must be as well.
MPC: does not appear to require P be convicted for A to be convicted, as long as P engaged in the conduct required by the commission of the crime or attempted to commit it.
Withdrawal by accomplice:
In contrast to conspiracy, withdrawal is a defense to accomplice liability. However, withdrawing requires that the effect of the aid be undone. Therefore, it is not enough that D have a subjective change of heart and provides no further assistance. He must undo what he has done. Therefore, verbal withdrawal is not always enough. If D’s assistance has been more tangible, he probably has to take affirmative action to undo the effects of his aid. Warning authorities almost always counts as withdrawal. It is not required that the crime be thwarted.
Exceptions to accomplice liability: where the legislature has declared someone a victim, they are not subject to accomplice liability. (e.g. statutory rape – girl is not liable as an accessory) In re Meagan R (a minor girl was arrested of burglary predicated on finding that she entered the house with intent to aid and abet her own statutory rape. The court held that the girl cannot be found guilty of aiding and abetting her own statutory rape, therefore there was no intent to commit a felony).
Post Crime Assistance: At C/L, an accessory after the fact was one who knowingly gave assistance to a felon, for the purposes of helping him avoid apprehension. Under modern law, they are not liable for the felony itself, as an accomplice would be. Rather, there is a distinct crime based on obstruction of justice, and the punishment does not depend on the underlying felony. The elements are 1) a completed felony, 2) that D knew was committed, 3) and D personally assisted the felon, 4) by taking affirmative acts to hinder his arrest. (e.g. failing to report the felon, failing to turn in evidence)
SOLICITATION
At C/L, solicitation occurs when D 1) requests or encourages another 2) to perform a criminal act, regardless of whether the latter agrees. The main value of the crime is that it allows punishment of the solicitor even if the person who is requested to commit the crime refuses. Critics of the crime argue that 1) solicitations themselves are not dangerous and create no harm unless the person agrees, 2) a solicitor is generally less dangerous b/c he is reluctant to commit the actual crime, and 3) solicitation may violate First Amend. rights. Courts disagree about what happens if a solicitation attempt is not received. State v. Cotton (D wrote letters to wife, which she never received, trying to get her to convince his stepdaughter not to testify against him. The court held that this was attempted solicitation was not solicitation.
MPC: §5.02 Under the MPC, solicitation requires the highest level of mens rea – purpose. The MPC imposes liability for failed communication rather than creating an attempted solicitation crime. The MPC allows the defense of renunciation if D prevents the commission of the crime, and does so voluntarily.
Solicitation and Attempt: just making a bare solicitation is not enough to make D guilty of attempt. However, if he goes further, by making preparations w/ the solicitee, this may be enough to get him guilty of attempt, even if the solicitee himself refuses to participate.
