Oranizing_Principles - Bar Exam Mind

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Arizona (good exam review case). i. actor who is a major participant in a felony, but who has reckless indifference to human life, nevertheless is eligible for death  ...

1. General Principles -punishment (utilitarian vs. retributive) -statutory interpretation -MR, AR, causation

3. Defenses justifications self-defense defense of others necessity excuse duress insanity (voluntary intoxication)

3. Types of Crimes -homicide -rape -inchoate offenses attempt assault solicitation conspiracy -accomplice liability

-Within each crime: CL vs MPC what is the MR, AR? exceptions? defenses justification/excuse

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General Principles

I. Punishment A. Utilitarian 1. General deterrence 2. Specific deterrence 3. Isolation 4. Reform

5. Proportionality a. punishment should outweigh benefit from committing crime b. greater the mischief the greater the punishment c. punishments should induce man to commit a lesser mischief

B. Retributive 1. Guilt deserves punishment 2. Criminal tries to be superior to victim/society; punishment reinstates balance

3. Proportionality a. an eye-for-an-eye

C. 6th Amendment 1. guarantees that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." a. jury nullification (a power, not a right) 2. Process: felonious crime arrest (with probable cause; high likelihood he committed crime) complaint arraignment preliminary hearing/grand jury indictment motions trial sentencing

D. 8th Amendment 1. no cruel and unusual punishement a. US Supreme Court holds punishment other than death cannot be deemed out of proportion if the people, acting through their legislatures, deem the punishment appropriate for the crime i. this standard bound to change over time

II. Statutory Requirements and Interpretation (see chap 3 for headings) A. Previously defined conduct 1. Nothing can be considered a crime without a pre-existing law 2. Statutes cannot be vague or else they are void; statutory clarity 3. "Strict construction" (aka, rule of lenity) which requires that judicial resolution of uncertainty in penal statutes should be biased in favor of the accused.

III. Elements of a Crime A. AR 1. the physical or external part of a crime 2. voluntary act a. Voluntary act objectively demonstrates willful intent (i.e., MR) b. Involuntary acts (MPC §2.01(2)) i. reflex or convulsion ii. movement during unconsciousness or sleep iii. conduct resulting from hypnosis iv. movement not product of effort/will of actor (cf. duress) 3. voluntary omission a. One cannot be held criminally culpable for refusing to act, unless one had a legal duty to another person. i. Legal duty: guardian or protector 1. parent for a child 2. caregiver for patient 3. guardian of a mental deficient

B. MR 1. Culpability (cf. general intent) a. CL - guilty mind; morally culpable state of mind 2. Elemental (cf. specific intent) a. CL/statutory/MPC i. does MR meet statutory req? ii. typically at time of act 3. Proof of Intent a. Can therefore be inferred (but not presumed) that a person ordinarily intends the foreseeable consequences of his acts 4. General vs. Specific Intent (140n6; intent, 138-141) a. General intent i. morally culpable ii. act itself is enough b. Specific intent i. guilty as per each element ii. intend to do something more than the act a. a future act ("with intent to commit a felony therein) b. a special motive or purpose ("with intent to cause humiliation") c. proof of awareness of attendant circumstances ("to a person know to be under 18") 4. Model Penal Code §2.02 and mens rea (141-145); Elemental approach a. MPC requires prosecutor to prove particular mens rea for each crime, not just a morally blameworthy manner i. MPC does not distinguish between specific and general intent; yet, even code states continue to draw the distinction b. MPC abandons countless common law mens rea terms and replaces them with four: i. Purposely a. conscious object to: i. engage in defined conduct or ii. cause a result b. attendant circumstances: i. aware they exist or ii. believes or hopes they exist ii. Knowingly (same as "Wilfull") a. aware his conduct is wrongful or b. aware behavior almost certain to cause result c. aware attendant circumstances exist[1] iii. Recklessly a. consciously disregards a substantial and unjustifiable risk that i. material element exists or ii. will result from his conduct b. a gross deviation from law-abiding standard of conduct iv. Negligently a. should be aware of a substantial and unjustifiable risk b. the lack of awareness is a gross deviation from reasonable standard of care c. One of these levels of culpability must be proved with respect to each "material element" of the offense, namely, i. the nature of the forbidden conduct ii. the attendant circumstances iii. the result of conduct d. if no MR mentioned in statute, then it must be something other than negligence proved (§2.02(3)) e. when words in statute unclear level of culpability applies to all material elements of statute unless explicitly stated otherwise. 5. "Knowledge" of Attendant Circumstances a. not a material element; therefore no MR needed, just prove circumstances existed at moment of crime

6. Strict Liability Offenses a. criminal liability attaches without regard to fault if conduct involves, i. minor violations of liquor laws, pure food laws, motor vehicle and traffic regs, building and factory laws ii. court typically refuses to hold felony convictions to a strict liability standard (exception: statutory rape) b. MR req firmly entrenched in American law 7. Mistake a. did mistake have effect on D's mental state, thereby preventing him from having the MR req for crime? i. mistake of fact 1. specific intent crimes a. even an unreasonable belief is valid 2. general intent crimes a. mistake must be reasonable ii. mistake of law (rarely permitted) 1. not app to strict liability crimes (cuz no MR) 2. unreasonable belief permitted b. factfinder always free to disbelief mistake actually occurred

C. Causation: did my acts combined w/mental state combine to result in social harm actual and proximate causes 1. Actual cause (cause-in-fact) a. "But for" test: a D's conduct is a cause-in-fact if the said result would not have occurred "but for" the D's conduct i. Concurrent and contributory but-fors 1. acts together cause the criminal harm, but neither alone would have b. Substantial factor test (rarely used to replace "but for" test): when acts of two D's would each alone be sufficient to result in the harm; both can be found guilty this way 2. Proximate Cause req: Cannot be a proximate cause without being an actual cause [but] Can be an actual cause without being the proximate cause a. courts won't impose liability where: i. prohibited result of D's conduct is beyond scope of any fair assessment of the danger created by D's conduct ii. where it would otherwise be unjust based on fairness and policy considerations

b. Intervening force i. but-for causal agent comes into play after D's act or omission, and before the social harm occurs 1. act of God 2. 3rd party that accelerates or aggravates the harm caused by D 3. act or omission of victim that assists in bringing about the outcome i. Categories of intervening causes 1. coincidental/intervening/supervening a. happens without any cause from D b. breaks chain of causation unless foreseeable by D 2. responsive/dependent a. D is somehow responsible for bringing about this act b. breaks the chain of causation only if abnormal 3. MPC § 2.03 a. merely a proximate cause req: "actual result not too remote or accidental in its occurrence to have a just bearing on D's liability" c. "Apparent safety" (common law) i. when a person reaches a position of safety, original wrongdoer is no longer responsible for ensuing harm d. Transferred intent D. Social Harm

Types of Crimes

-Within each crime: what is the MR, AR? CL vs MPC exceptions? defenses justification/excuse

I. Homicide – general intent |Common Law |MPC | |Murder: (killing with "malice |Murder: - intent to kill | |aforethought") |- depraved heart/reckless | |- premed/deliberate |indifference (SBI analog) | |- intent to cause SBI |- (felony murder) | |- depraved heart |Vol Manslaughter: - reckless | |-callous indifference to |- EED | |human life |Negligent Homicide: - Gross | |- felony murder |negligence | |Manslaughter: (kill w/o "malice | | |aforethought") | | |- voluntary (HOP) | | |- involuntary | |

A. Intentional Killings 1. Deliberation-Premeditation Formula 2. Manslaughter: "Heat of Passion" (HOP) Killings a. Common Law Principles i. a partial "justification"; mitigates down from murder 1. requires "adequate provocation to inflame passion of a reasonable man" due to unlawful conduct by provoker (words not enough) a. Rule of Provocation (tested objectively) i. adequate provocation ii. heat of passion iii. sudden heat – no time to cool iv. causal connection between provocation, passion, and factual act ii. CL circumstances permitting manslaughter mitigtion 1. catching spouse in act of adultery 2. mutual combat 3. assault and battery

b. The CL Objective Standard: Who is the Reasonable Man? i. Provocation thus requires a dual test: 1. provocation sufficient to cause particular D to lose self-control 2. might cause a reasonable man to act in the manner that D did

ii. Definition a reasonable man/person: 1. either sex 2. normal powers of self-control 3. was level of response merited by gravity of


c. MPC and beyond (mainly subjective) i. MPC uses the "extreme emotional distress" (EED) standard, which is much broader than the HOP standard 1. no need for immediate, unthinking reaction 2. takes into account D's subjective outlook re: a. was D provoked? b. was provocation adequate? c. response of D is sub/ob hybrid: Is D's

subjective perception one that, if a reasonable man had it, would lead to the same action?

Tison v. Arizona (good exam review case) i. actor who is a major participant in a felony, but who has reckless indifference to human life, nevertheless is eligible for death after a felony-murder conviction ii. Dissent: major participation may reveal a mental state, but should not be used alone to impose death iii. recklessness is much less culpable than intentional, therefore, we must punish them differently in order to maintain "the relation between criminal liability and moral culpability"

B. Unintentional Killings 1. Common law a. intent to cause SBI resulting in unintended death is murder with malice aforethought under CL i. CA: "abandoned and malignant heart"; "implied malice" ii. Utah: "depraved indifference, i.e., callous to value of human life " b. implied malice i. conduct demonstrating depraved indifference plus ii. awareness of 1. risks of conduct (high probability of death) or 2. conduct was contrary to law

2. MPC a. Recklessness, §2.02(2)(c) i. "conscious disregard of a substantial and unjustifiable risk" ii. that is, D was aware of the substantial and unjustifiable risk [cf. criminal negligence infra] b. Accords no special significance to an intent to cause SBI but rather treats such cases under the extreme recklessness and recklessness standards

3. Negligence (involuntary manslaughter) a. "gross deviation" from reasonable person standard of care and that deviation results in a death i. criminal negligence: should have been aware of a substantial and unjustifiable risk and failure to perceive it considering the circumstances known to him

4. Felony-Murder Rule (CL) a. the doctrine in its unlimited form i. in effect, once there is a felony, the killing becomes a murder as a strict liability offense ii. applies in commission or attpted commission of felony b. the policy debate i. modern rationales (288-291 criticizes them) 1. deterrence: rule is so simple, felons can understand it; yet how can we deter an unintended act? 2. transferred intent: mens rea for burglary is not the same of premeditation for murder 3. retribution and general culpability: punish the "evil mind"; conflicts with trend of punishing homicide by degree of culpability 4. promotes conservation of judicial resources ii. MPC is against the felony-murder rule 1. death resulting from felony creates rebuttable presumption of D's recklessness and extreme indiff to life

c. Limitations on the Rule (not that under traditional CL these exceptions would not apply; mention that in all essays) i. The "inherently dangerous felony" limitation 1. if felony not inherently dangerous (either in abstract or in the particular instant case) then murder rule should not be applied 2. only apply it in very violent behavior; charge people with different level of homicide ii. the "merger" limitation 1. if underlying felony is a step in the death, then you can't charge felony-murder a. Policy: prevents stacking charges against D's; "ratcheting up" charges. 2. Two part test is merger applies: a. are the acts that make up the underlying felony an integral part of death? b. does the underlying felony exhibit an intent or goal to accomplish something apart from the ultimate result of the felony? iii. "in furtherance of" a felony 1. if death is a coincidence with the crime, then no felony-murder rule a. flying a plane transporting drugs; it crashes and kills one of the occupants = no felony-murder 2. if it is a direct consequence (i.e., "natural and probably result"), then felony- murder. iv. Agency 1. if death occurs by someone not acting in concert with Ds, then the Ds cannot be charged with felony murder. 2. if the deaths are not illegal deaths (e.g., justifiable homicide, self-defense), Ds cannot be charged with felony-murder (see State v. Bonner) 2. The "misdemeanor manslaughter" rule a. homicide during commission of a non-felony is common law involuntary manslaughter b. MPC favors abolishing this rule

C. Defenses 1. justifications a. self-defense b. defense of others c. [MPC does not exclude necessity, but unlikely to be granted]

II. Rape – General Intent |CL |MPC | |Elements: |Elements: | |-sexual intercourse (penetration |-sexual intercourse (penetration | |sufficient) |sufficient) | |-force, threat of force, [fraud] |-force, threat of imminent death, | |-without consent |SBI, | |-against her will [woman must |extreme pain, or kidnapping | |resist] |-against her will [no resist req] | |-[not wife] |-[not wife] |

CL RAPE & SIMILAR (MR – knowingly) Rape (General Intent) Elements: • Sexual intercourse (interpreted broadly) • force, threat of force, or fraud (removed in some statutes) o if no force then fear must be reasonable/based on objective manifestation of intent to use force o force of removing sheets was sufficient in hospital patient case o Fraud [fraud sometimes removed and often interpreted differenctly] ▪ no consent if “fraud in the factum”, because consent was not given for act that actually occurred – Dr. says treating patient with surgical instrument, but puts penis in: rape ▪ consent if “fraud in the inducement” – D says "if we have sex, I'll marry you tomorrow": not rape • without consent o consent must be freely given and communicated to ( [mistake instruction only given when some equivocal conduct] ▪ ( belief must be reasonable (majority rule) ▪ “No Defense” Rule analogous to statutory rape cases o additional burden on V if prior longstanding sexual relationship. o incapacity o • against her will [to resist] o must be overcome by force or threats of contemporaneous force o resistance must be evidenced by V’s statements or actions [verbal plus at least some initial resistance] o Mens rea - Mistake must be reasonable ▪ if a D entertains a reasonable and bona fide belief that V voluntarily consented to sex, then he does not possess wrongful intent that is a prerequisite for rape (majority belief) • not wife (removed in some statutes)

*judges used to look at women as potential accomplices using rape allegations to shield them from accusations of crime of fornication

MPC RAPE (MR – can be as low as reckless)

• Sexual intercourse • Compelled by force, threat of imminent death, SBI, extreme pain, or kidnapping [resistance requirement has been implicitly reintroduced by many jurisdictions] o Force: current judicial opinion holds "physical force" to mean "any degree of physical power or strength used against the victim, even though it entails no injury and leaves no mark." • Against her will • [Victim not wife] • Victim is incompetent to give consent

RAPE SHIELD laws A. No questions or evidence about V's reputation or prior sexual history 1. Exceptions: a. sexual history w/D or others deemed relevant if it will explain a physical characteristic being used to prove the rape i. e.g., vaginal tearing, etc b. some states permit reputation evidence if deemed relevant on a case-by-case basis

Defenses mistake of fact


Def. Defense: "any set of identifiable conditions or circumstances which may prevent a conviction for an offense"

Defense counsel: 1) move for directed verdict 2) rest on innocence (i.e., no case presented) 3) present a case -may include affirmative defenses: either to exculpate or to mitigate Defenses: self-defense defense of others necessity duress insanity -mounting a defense implies that D believes that prosecutor has proven case

A. Categories of Defenses 1. Failure of Proof Defenses a. one or more elements in the definition of the offense cannot be proven b. Winship: req state to prove all elements of crime beyond a reasonable doubt 2. Offense Modifications a. all elements of offense exist, but no social harm or evil that the statute defining the offense sought to prevent i. e.g., making a ransom payment to kidnappers to save child is technically complicity in kidnapping 3. Justifications (self-defense; defense of others; necessity) a. justification represents a "superior social interest" b. justification negates the social harm of an offense 4. Excuses (duress; insanity) b. negates the moral blameworthiness of the actor; but social harm still exists (all elements of crime satisfied) 5. Nonexculpatory Public Policy Defenses a. statute of limitations – guilt remains, but for public policy of fostering a more stable and forward-looking society, crime is ignored after a certain time period b. diplomatic immunity, judicial immunity, incompetence, etc

B. Burden of Proof 1. Not unconstitutional to put the burden of production for affirmative defenses and also the subsequent burden of persuasion on Ds (meanwhile, prosecutor has burden of production for the elements of the crime)(450n1). a. obligation of states to define the elements of the crime b. MPC §1.13 recommends that prosecution carry the burden of disproving any affirmative defense raised[2] by D

C. Principles of Justification 1. Structure of Justification Defenses a. existence of triggering conditions permit a b. necessary (response to imminent threat) and proportional response to avert the threat i. the necessary and proportional requirements are very important 2. SELF-DEFENSE a. CL General principles i.. def. self-defense (CL) a. must be an unlawful and imminent threat b. of death or serious bodily harm and c. a reasonable belief deadly or severe force only way to counter the threat and d. response is proportional ii. aggressor: cannot normally assert self-defense justification a. aggressor – one who performs an unlawful act reasonably calculated to produce an affray leading to injuries or death (i.e., provokes the incident) iii. retreat rule: under CL, "retreat to the wall" before use of force a. rarely applied when D faced with deadly force iv. castle doctrine: almost universally accepted that one has no duty to retreat if attacked within one's home b. MPC §3.04 i. Deadly force not justifiable "if the actor knows that he can avoid the necessity of using such force with complete safety by retreating" (MPC §3.04(2)(b)(ii)). a. otherwise, same as CL (adds, no retreat at work)

c. Policy arguments in favor of self-defense justification i. public duty a. prevent any forcible or atrocious crime ii. moral forfeiture of the right to life a. by threatening to take a life, one forfeits the right to his own life iii. the right to preserve autonomy a. in this case, the defender kills to preserve his right to life iv. right to resist unlawful aggression (when State not there – in the form of police – to do it for you) v. lesser evils doctrine d. "Reasonable Belief" Requirement i. at CL a. objective defined as a reasonable person in the D's situation; cf. p. 471 b. info about physical attributes of all actors, D's knowledge about victim, and D's prior experiences in similar situations are all relevant to determining what was objectively reasonable for a man in D's situation to do 1. does this not open the door to allow people's prejudices to enter the consideration of the reasonableness of their actions c. imminent harm req – objective test d. necessity and proportionality of response –

objective test

ii. MPC §3.04 a. uses a wholly subjective standard, requiring jury to look only at what D believed the situation to be b. broader than imminence req: "justifiable when the actor believes that such force is immediately necessary for the purpose of protecting oneself" 1. policy: is this wise? letting people set their own standards for permissible use of force? c. however, if D formed his belief recklessly or negligently, then he could be convicted of a homicide with one of these types of MR

e.. Objective, Subjective, or a Mixed Standard? (which standard to we apply to 1) imminence, 2) proportionality of response, and 3) triggering mechanism: for exam) a. State v. Wanrow 1. what is "reasonably believed" should take into account how a D's beliefs are affected by his/her gender, physical size, etc. 2. to what extent do we incorporate the D's knowledge of the V's past bad acts. 3. no specific triggering mechanism in this case

iii. Battered Woman Syndrome (subjectivity) and Beyond a. State v. Norman 1. Appeals court: believes battered wife syndrome and sees it as a justification for killing in self-defense; no imminence req, says inevitability is sufficient 2. Supreme court: harm must be imminent[3] b. Should imminence be removed? 1. Use excuse (rather than justification)

based on impaired rationality or volition 2. simply permit justification where circumstances merit removal of imminence req

3. Defense of Others a. the MPC §3.05 standard i. a person is justified in the use of force against another if a. a reasonable person in the actor's position would believe his intervention to be necessary for the protection of the third person and b. in the circumstances as that reasonable person would believe them to be (subjective), the third person would be justified in using such force to protect himself 1. i.e., "self-defense" by proxy c. the force employed must, of course, be proportional ii. Policy: to prohibit such a justification would increase alienation of individuals within society from each other iii. MPC § 3.05 must be interpreted in light of 3.04 and 3.09. b. "alter ego" rule i. CL – one is not privileged to defend to a greater degree than the person himself (i.e., if third person was not privileged to use resistive force, then anyone who assists him is guilty of a crime)

4. Defense of Property/Habitation a. deadly force rarely justified to defend mere property; non-deadly force can be justified to defend property i. except when life threatened at same time (e.g., armed robbery) ii. when threat of dispossession from house by felony b. MPC §3.06 – Deadly force permitted if i. person attempting dispossession from house ii. person attempting felonious destruction or theft of property and has: a. threatened deadly force vs. actor or b. without deadly force, actor will be exposed to SBI

CL: protection from any felony; California and MPC merge protection of property with protection of self except in case of dispossession; Illinois statute is more broad and permits killing after mere invasion of home.

5. Necessity ("Choice of Evils"): a utilitarian defense (p. 535) a. General Principles; CL requirements (Primarily an objective standard defense): i. D faces choice of evils (created by natural situation; coincidence) ii. harm is objective and immediate iii. causal connection between harm and conduct iv. D chooses the lesser harm (objectively determined) to avoid greater harm 1. if harm is equal (e.g., you were faced with death and you took a life), then no justification v. no legal alternatives/no legislative (as voice of society at large) preclusion vi. situation not self created (used in some courts) b. MPC §3.02 (p. 530-532) i. (subjective) actor must believe that his conduct is necessary to avoid an evil (that is, a causal connection between actor's action and alleviation of the harm) ii. (objective) necessity must arise from an attempt to avoid an evil or harm that is greater than the evil or harm sought to be avoided by the law defining the offense charged (D chooses lesser harm) iii. (objective) balancing of evils is not committed to the private judgment of the actor – a fact-finder will decide iv. (objective) the particular choice made has not been precluded by legislative act (or no legal alternatives exist) v. necessity will exculpate unless the crime involved can be committed recklessly or negligently

c. Civil Disobedience: United States v. Schoon i. Indirect civil disobedience, because it attacks a symbol of harm, rather than preventing harm itself, can never be subject to necessity defense a. legal alternatives (e.g., lobbying) exist to gain what people want ii. Direct civil disobedience may be subject to it. If the act committed may reasonably believe that the action will directly affect the harm (i.e., a fairly direct causal connection). d. Necessity as Defense to Murder? i. No. The only defense to murder is self-defense or defense of a third person. ii. MPC §3.02 does not specifically exclude homicide from the "choice of evils" defense, but leaves it up to courts to elaborate the limits of the defense

D. Principles of Excuse 1. Why excuse wrongdoers? a. the law is concerned for the person accused who has not made a culpable choice to break the law (utilitarian) i. culpability implies moral criticism; if a person's action does not deserve criticism, then there should be no culpability 2. Theories underlying excuses a. Causation (non-utilitarian): a person should not be blamed for conduct if it was caused by factors outside of his control i. e.g., mental illness; coercive threat b. Character: excuses should be recognized in those circumstances in which bad character cannot be inferred from the offender's wrongful conduct i. e.g., rob a bank because someone threatened to kill your kids if you didn't ii. problem: so why do we punish people with good character who make a stupid mistake? c. "Free Choice" (or Personhood): one can be punished if one entered into criminal act knowing all facts and punishments for the act

3. DURESS [focus on D's mental state] a. General Principles i. Three elements of duress defense: 1) (sub/ob hybrid) immediate threat of death or SBI 2) well-grounded fear that the threat will be carried out 3) no reasonable opportunity to escape the threatened harm 4) actor was not at fault in exposing himself to the threat iii. MPC §2.09 1) offender was coerced by use of, or threat of, unlawful force [not necessarily deadly] against his person or the person of another [not just close family], and a person of reasonable firmness in his situation (sub/ob hybrid) would have been unable to resist [more restrictive mental state; since society doesn't benefit regardless of the choice, the choice MUST have been reasonably compelled] 2) no imminence requirement 3) defense unavailable if offender placed himself in the situation by recklessness or negligence b. Necessity versus Duress[4] iii. Necessity normally arose from some sort of natural factor (a chance coincidence) whereas duress normally arises from a human element (gun to head, etc). iv. Necessity negates AR (i.e., there is no social harm); Duress negates MR (i.e., actor has no free will for actions).

4. Voluntary (Self-Induced) Intoxication a. Commonwealth v. Graves: under traditional CL, intoxication was never an excuse for a crime; modern CL saw intoxication as a mitigating factor to drop the crime down from specific intent to general intent. i. that is, voluntary intoxication is relevant to the question of the capacity of the actor to have possessed the requisite intent of the crime charged ii. D can use his drunkenness to prove that he did not have the requisite MR for the specific intent crime b. Policy: to permit intoxication to be an excuse, it would open the door to frauds and perjuries by persons to enable them to escape prosecution c. MPC §2.08 i. intoxication is not a defense unless it negatives an element of the offense ii. it does not negative recklessness iii. intoxication is not mental disease iv. involuntary intoxication or pathological [grossly excessive] intoxication is a defense d. chronic abuse of intoxicants may, however, create a mental disease, thus permitting an insanity defense

Note the decreasing levels of capacity (and the results?): premeditation ( EED/HOP ( Diminished Capacity ( Insanity

5. INSANITY a. Procedural context i. Competency to Stand Trial a. must be able to consult with a lawyer "with a reasonable degree of rational understanding" b. concern is only with person's mental state at time of trial, not at any other moment c. presumption that you are competent d. a D must prove incompetence to stand trial by a preponderance of the evidence i. if court notes possible lack of competence, then court can raise the issue sua sponte ii. Pre-trial Assertion of the Insanity Plea a. insanity is a defense to the MR, not the AR of the crime iii. Burden of Proof at Trial a. insanity is an affirmative defense b. presumption of sanity c. most states place burden of persuasion on the D i. D must first make a prima facie showing that they are insane (mention this 1st step) ii. then evidence must be presented a. if burden of persuasion is on prosecutor, then he must show the D is sane d. burden is normally preponderance of evidence iv. Post-trial Disposition of Insanity Acquittees a. NGRI (not guilty by reason of insanity) i. most states: automatic commitment b. GBMI (guilty but mentally ill) i. committed until sane; placed in prison for remainder of term v. New Strategy for Civil Commitment a. repeat sex offender; still viewed as a danger and has perverted impulses; state puts him in mental hospital

b. Why Excuse the Insane? i. One who is truly insane cannot be rehabilitated or deterred, and morally we should not seek retribution against him ii. A man who cannot reason cannot be subject to blame. iii. The law of criminal responsibility has its roots in the concept of free will; when one's free will is impaired, should they be subject to that law?

c. Five tests for Insanity (State v. Johnson) -Two prongs: prove a mental defect, and then . . . -Some test are cognitive, others volitional, others mixed; know which! -All except federal rule are proved by preponderance of evidence i. M'Naghten Rule a. defect of reason, from a disease of the mind, made D not know the nature and quality of his act b. if he did know the nature and quality, then he did not know it was wrong. i. criticized because did not recognize degrees of incapacity (i.e., it's all-or- nothing); requires a high degree of incapacity ii. if "know" is interpreted narrowly, insanity difficult to prove iii. if "know" is broadly, then insanity easier to prove (State v. Wilson)

ii. "Irresistible Impulse" or "Control" Test a. insane if, at time of offense, loss of control caused by insane impulse (volitional); know action is wrong i. criticized for its all-or-nothing nature and a. if there had been prior resistance to the impulse, the test would fail – requires total incapacity ii. excludes crimes not committed in a fit of rage

iii. Durham or "Product" Test a. crime would not have occurred but-for (i.e., it was a product of the) mental disease or defect (no separation of volitional and cognitive aspects) i. failed to define disease or defect ii. abandoned because only needed to show mental illness; expert witnesses tended to decide the case, rather than jury

iv. MPC Test, §4.01 (M'Naughten + Impulse test) a. a person is not responsible for conduct if, at time of conduct, as a result of mental disease or defect, he lacks substantial capacity (not all or nothing; not total incapacity): i. either to appreciate the criminality [wrongfulness] of his conduct (cognitive impairment) [NB, MPC by its language can recognize either moral or legal wrongs] ii. or to conform his conduct to the requirements of the law (volitional impairment) a. no irresistible impulse req.

v. Federal a. as a result of severe mental disease or defect, D was unable to appreciate the nature and quality or the wrongfulness of his acts (i.e., similar to M'Naghten) b. D must prove by clear and convincing evidence

d. M'Naghten and the MPC in Greater Detail i. Knowing vs. Appreciating the "Wrongfulness" of One's Actions (the cognitive requirement): State v. Wilson a. Public Morality Test: D lacked substantial capacity to appreciate the wrongfulness of his actions if, at time of act as a result of mental disease or defect, "he substantially misperceived reality and harbored a delusional belief that society, under the circumstances as the defendant honestly but mistakenly understood them, would not have morally condemned his actions." (subjective/objective hybrid). i. this is how court says that MPC should be interpreted

e. Should Insanity Defense be Abolished? i. Yes: too many wrongdoers use it to escape punishment ii. and insanity supposed to remove stigma of criminal conviction? is not insanity a stigma? convictions should simply be a determination of dangerousness to which community must respond iii. traditional policy argument against maintaining (634) iv. No: it is rarely used and even more rarely successful

6. Diminished Capacity (many jurisdictions removing this) a. permits D to introduce evidence of mental abnormality at trial i. either to negate a mental element of the charge (MR variant)[5] a. thereby exonerating D ii. or to reduce the degree of the crime for which D may be convicted, even if conduct satisfied all other reqs of higher charge (partial responsibility); a form of insanity defense (643) a. e.g., HOP killing b. Arguments against dim cap i. too subjective and does not draw a bright line the way the insanity defense does (647) ii. also, if Dim Cap retained, people could be in jail for a really short time, when they "deserved" to be in their for life iii. allows holes in sentencing c. MPC § 4.02 i. permits introduction of mental disease or defect evidence whenever it is relevant to prove or disprove the existence of any mental state. ii. recognizes partial responsibility variant a. e.g., extreme emotional distress

IV. Inchoate offenses Spectrum of criminal offenses: solicitation ( conspiracy ( attempt ( substantive crime

A. ATTEMPT 1. Forms of attempt: a. incomplete: only some elements of crime realized before interrupted b. complete: all elements realized but unintended result (e.g., shoot gun at person, but bullet misses) 2. Merger operates a. i.e., cannot be convicted of attempt if offense was completed b. however, attempt is deemed a lesser, included offense 3. Policy: attempt probably offers little specific deterrence, but it does permit law enforcement officers to intervene before an individual can commit a completed offense 4. MPC §5.05 – Grading inchoate crimes a. holds that except where completed offense is punished by death, attempt should receive the same punishment as completed offense

5. Components of Attempt: a. Mens Rea: (as with all inchoate crimes, specific intent; purposeful is req'd) i. CL - must have highest level of intent for a conviction of attempt 1. e.g., attempted murder can only be successful if the MR was intent to kill (not reckless) 2. Ensures that only obviously culpable receive this high punishment ii. MPC: have same level of culpability (MR) as completed crime and 1. take a substantial step to completion

2. engage in conduct that would be a crime if circumstances were as actor believed them to be 3. Causing a particular result is an element of the crime, and actor does or omits something with purpose or belief it will cause that result

b. Actus Reus i. AR: when does this attach? ii. preparation vs. perpetration (713n5); mere preparation is not enough: CL tests (see 716-717 for examples) 1. physical proximity[6] i. overt act must be proximate to completed crime or directly tending toward completion of crime or amounts to commencement of consumation 2. dangerous proximity i. the greater the gravity and probability of the offense, and the nearer the act to the crime, stronger the case for calling it attempt 3. indispensable element i. emphasizes any indispensable aspect of the criminal endeavor over which the actor has not yet acquired control ii. if involving a conspiracy, one member cannot be guilty of attempt until the other performs his part of the crime[7] (see Peaslee) 4. probable desistance i. conduct is attempt if, in ordinary/natural course of events, it will result in the crime intended ii. would go ahead with criminal conduct, but-for the intervention of another force 5. abnormal step i. conduct goes beyond the point where a normal citizen would think better of his conduct and desist 6. res ipsa loquitur/unequivocality i. conduct manifests an actor's intent to commit a crime ii. this is the most generous of the tests (e.g., acts that would be attempt in MPC are not attempt under this test; cf McCloskey)

iii. act that constitute AR must be intentionally performed (i.e., there must be specific intent to qualify as attempt) 1. can an omission constitute AR for attempt? a. Under MPC 1.13(5) "omission" can equal conduct, therefore, under 5.01(1)(b) omission can be corroborative of a criminal purpose.

iv. MPC: criteria for substantial step[8] a. possession of materials to commit crime and can serve no lawful purpose b. possession at or near place of commission that can serve no lawful purpose c. lying in wait; searching for victim d. enticing or seeking to entice victim to intended spot of commission e. reconnoitering the place contemplated for commission of crime f. unlawful entry into place where contemplated to commit crime g. soliciting an innocent agent to engage in conduct constituting an element of the crime

v. CL vs. MPC tests 1. proximity tests focus on what remains to be done 2. substantial step tests focus on what has already been done i. this tends to extend liability for attempt ii. does not impose liability for remote preparatory acts

6. Special Defenses to Attempt a. CL - Impossibility i. circumstances beyond accused's control make it legally impossible to commit a crime, there can be no attempt to commit the substantive offense e.g., no victim in being; i.e., woman dead, so can't rape her even if penetration [no SH] however ii. a physical impossibility unknown to accused rendering the accomplishment of crime impossible retains criminal attempt (impossibility in fact) [punishable as attempt in majority of jurisdictions] e.g., can't get it up, so no rape possible [no complete AR] iii. MPC does not permit this defense (§5.01(1)(a)) a. however, if actor thinks he violated law, but no such law exists, he can't be convicted merely for his faulty "criminal" intent = pure legal impossibility (750n7)

b. Abandonment at CL and MPC (McCloskey) i. cannot have begun commission of crime ii. must voluntarily abandon course toward crime 1. MPC §5.01(4) codifies this: "it is an affirmative defense that actor abandon his effort to commit the crime under circumstances manifesting a complete and voluntary renunciation of criminal purpose" 2. renunciation cannot be from fear of being captured or motivation from external circumstances iii. only applies to incomplete attempts 1. however, if SH has resulted before target offense is completed, then we may refuse to apply abandonment (755n2) iv. cannot renunciate a completed attempt; but MPC permits raising of the defense until the point of the penultimate step of attempting the target offense

B. ASSAULT 1. CL – attempt, coupled with present ability[9], to commit battery; later included mere menacing (without present ability to inflict harm) a. battery: use of force to cause injury to another 2. MPC §211.1 -omits requirement of present ability to succeed; brings assault into the same standard of attempt (NB: must have a substantial step present) a. Simple assault i. intentional/reckless infliction of bodily harm or ii. negligent infliction of harm w/deadly weapon or iii. put another in fear of imminent SBI b. Aggravated Assault i. intentional/reckless infliction of infliction of injury with extreme indifference to value of human life[10] ii. intentional attempt to cause injury to another with a deadly weapon c. Reckless endangerment i. recklessly engages in conduct that may or does place others in danger of death or SBI 3. No such thing as attempted assault, for assault is an attempt

C. SOLICITATION 1. CL -asking, enticing, inducing, or counseling of another to commit a specific crime or specific type of crime i. aka, an attempt to conspire ii. solicitation must actually be communicated to other person 2. MR is purposeful, i.e., specific intent 3. AR is the communication (AR and MR prove each other; circular) 4. MPC §5.02 i. solicitation merges with the latter offense if it is committed or attempted ii. permits conviction for solicitation even when D does not complete the communication, but his conduct was designed to effect such a communication iii. abandonment is an affirmative defense to solicitation iv. solicitation punished at same level as target crime

5. Exceptions i. D requests X to perform a legal act that D can commit a crime a. under CL, D is not guilty of solicitation b. MPC: maybe guilty; no specific requirement that the solicitation is to do an illegal act, just assist in crime

good review problem, 764n7

D. CONSPIRACY an agreement between two or more persons express or implied to do either an unlawful act or a lawful act by unlawful means; MPC § 5.03 is the same except it requires an overt act in furtherance of the agreement 1. Mens Rea a. two-fold, bifurcated specific intent required i. intent to combine with others ii. intent to accomplish the illegal objective b. intent must be express, not implied (779) c. mere knowledge of another's criminal acts is not the same as purpose or intent to form an agreement d. attendant circumstances (e.g., if crime is "conspiracy to assault a police officer," do the accused need to know it was a cop and not just some random guy?) e. by the Pinkerton doctrine (769), one is liable for all substantive offenses carried out by fellow conspirators in furtherance of the conspiracy and reasonably foreseeable until one takes an "affirmative action" to withdraw from the conspiracy i. this CL doctrine makes minor participants guilty ii. MPC disfavors punishing minor parties f. establishing an agreement i. show a tacit, mutual understanding to accomplish unlawful act g. MPC §5.03 i. bifurcated specific intent

2. Actus Reus a. the crime is complete upon formation of the agreement i. at CL - does not even require a substantial step toward attempt to convict, but often need it to prove at trial ii. agreement can be tacit (look at circumstances; i.e., circumstantial evidence) a. present at scene b. relationship with perpetrators c. with perps before and after d. knowledge of commission of the crime iii. some courts hold that the agreement can occur as the criminal act begins in process (Azim); while others hold that there must be a clear agreement before the criminal act begins (Cook) b. completed offense is a separate crime i. conspiracy does not merge with substantive crime when conspiracy is on-going (let's rob banks together) 1. exception under MPC 1.07(1)(b): if conspiracy for a single crime, then it merges

c. MPC i. requires an overt act (much less than substantial step; and often less than basic preparation) 1. exception: no overt act req'd for conviction when target crime is a first or second degree felony (i.e., when you have a serious crime) ii. punished at same level as target offense

d. general considerations i. aiding and abetting is not the same as conspiracy 1. key: was there prior planning? ii. conspiracy often proved by circumstantial evidence 1. association of alleged conspirators 2. knowledge of commission of crime 3. presence at scene of crime 4. participation in object of conspiracy

3. Bilateral or Unilateral? a. bilateral: two or more people must actually agree to participate (a feigned agreement is not sufficient AR) i. if all alleged conspirators are tried in a single trial and only one is convicted, then the charge cannot stand b. unilateral: a single person intends to agree to a conspiracy and is thus guilty regardless if his agreement is reciprocated i. unilateral conspiracy is similar to solicitation ii. MPC uses unilateral theory

c. courts disagree over which to apply i. issue normally arises when one of the parties is an undercover agent who has no intention of truly agreeing 1. policy: we should permit the unilateral theory because it is a way to get dangerous, antisocial people off the streets

4. Scope of an Agreement: Party and Object Dimensions a. can be a member of conspiracy even if: i. identities of fellow conspirators unknown and ii. not aware of details of the plan of operation iii. agreement of all participants need not occur at the same time b. chain conspiracies[11] i. inference of agreement easier here ii. everyone has a community of interest in that 1. the success of one member's part is dependent upon success of the whole enterprise 2. therefore, lack of communication or contact between the members is not a bar to conviction

c. wheel conspiracy i. there exists a hub, or common source of conspiracy who ii. deals individually with different persons ("spokes") who do not know each other iii. inference is more difficult because the spokes are less likely to have a community of interest or a reason to know of each other's existence because each spoke's success not dependent on other spokes iv. community of interest test (to show an overarching conspiracy; not just a bunch of individual conspiracies to which the hub is party; and success of each spoke unrelated to success of other spokes) 1. each spoke knows that the other spokes exists 2. each spoke realize that all spokes together have a community of interest

d. ongoing conspiracy i. when a group of people commits various illegal acts over time, so long as they are in furtherance of an original goal, there can be only one count of conspiracy against them ii. this can be overridden by statutes addressing conspiracies to commit specific illegal acts (814n1)

e. MPC i. knowledge that a co-conspirator has conspired with other, even unknown parties, to commit the same crime[12] makes D guilty of conspiracy with those other parties ii. multiple crimes: only implicate a single conspiracy charge if: 1. the crimes are object of the same agreement or 2. a continuous conspiratorial agreement

5. Defenses to conspiracy a. abandonment is an affirmative defense i. if withdrawal is complete and voluntary, communicated to the co-conspirators and accomplished before commission of an overt act 1. i.e., conspiracy is complete upon the commission of the overt act 2. if withdrawal done after the overt act, then D is guilty of conspiracy, but has no liability for future acts committed by the remaining conspirators ii. MPC §5.03(6) 1. renunciation is an affirmative defense if such renunciation thwarted the success of the conspiracy 2. abandonment: otherwise, notifying co- conspirators or authorities limits future liability only

b. Wharton's Rule i. where substantive crime is defined as requiring a plurality of agents, a prosecution for the substantive offense rather than a conspiracy must be brought if only that number of people involved 1. e.g., adultery, incest, bigamy, dueling 2. policy: as Wharton's Rule normally applied to offenses not likely to harm anyone outside of the two participants, it is not necessary to apply it to crimes designed to harm larger numbers (e.g., gambling statute) ii. third-party exception: when more people than necessary are present to commit the crime, then conspiracy may be charged iii. modern courts 1. Wharton's Rule is merely a presumption rather than a set rule (Iannelli) 2. often permit trial on conspiracy and substantive charge, but if convicted on the substantive charge, then the conspiracy charge is dropped iv. MPC, provides for merger in all cases, therefore Wharton Rule cannot apply

c. Gerbardi Rule: no conspiracy where legislature intended only to punish one of the parties for the crime; that is, you can't punish a person in the class of people that the statute intended to protect (e.g., 820ff) i. MPC § 5.04: if one person in alleged conspiracy is immune to prosecution (or mentally incompetent), this will not bar the other person from conviction for conspiracy

NB: don't have to be at scene of crime to be convicted as a conspirator

IX. Accomplice liability (derivative from acts of another) accomplice liability: no agreement; just intent for the crime and encouragement

A. Nomenclature: modern CL and MPC 1. Principal a. one who commits the AR 2. Accomplice a. one who assists or encourages the AR, whether present or not at commission of crimes 3. Distinction? a. as the punishments are exactly the same in most jurisdictions, the only distinction is that accomplice can't be convicted unless principal is first b. a principal cannot be convicted on the testimony of an accomplice unless there is separate corroborating evidence (Helmenstein)

B. MR 1. Dual Intent a. intent/purpose to aid/assist the primary party (normally an affirmative act) i. split of authority: purposeful intent to assist criminal vs. mere knowledge that acts do render assitance (cf. Luria) b. intent/purpose that such assistance result in the commission of the offense charged

2. Intent Distinguishable from that for Attempt and Conspiracy a. being an accessory is not a crime in itself like attempt and conspiracy; a substantive crime must be committed b. unintentional crimes i. one cannot attempt or conspire to commit an unintentional crime (e.g., negligence homicide)

c. intent not always necessary i. under MPC (§2.06(4)) and similar, all that is required for accessory is the same mental state req'd for a particular result of the crime while intentionally aiding or agreeing with another; therefore, negligence is sufficient

ii. natural and probable consequences doctrine 1. liability for secondary crimes w/o intent if: a. actor intended to promote the primary crime and b. commission of the secondary crime was a foreseeable consequence of the actor's participation in the primary crime[13]

iii. attendant circumstances 1. split of authority: knowledge of circumstances might be required

3. MPC § 2.06 a. acting with culpability sufficient for the offense b. c. accomplice with another in commission of the offense

D. AR 1. Various forms a. solicitation/procurement of persons to commit the offense b. furnished an instrumentality used in the commission of the crime c. provided other significant active aid in the perpetration of the offense

2. Close cases a. relatively slight aid i. no req that the act of the accomplice be a but-for cause of the crime (871n2) ii. if one aids but the target offense is never committed, then no conviction possible as accomplice b. aid by omission rather than act i. mere presence – accompaniment and observation – is not aid (Vaillancourt) ii. other courts hold that presence, if it acts to encourage/support in some way, is accomplice (e.g., look-out); aka "presence coupled with some other factor" 1. approving presence, especially one that leads to profit for the person present is accomplice liability

3. MPC § 2.06 a. Three types of AR i. solicits an other person to commit crime ii. aids or agrees or attempts to aid other person in planning or committing crime iii. failure to prevent the commission of the crime if under a legal duty to make such an effort b. attempting to aid in a crime that is never carried out can be found guilty of accomplice (§ 5.01(3)) i. e.g., sting operation

4. Limits of Accomplice Liability a. Abandonment i.

5. MPC §2.06(7) a. accomplice can be convicted even without the principal being convicted (unless principal and accomplice tried at same trial)

Extra stuff: Threat B a communication objectively indicating a serious intention to inflict SBI (MR) B communication is also conveyed for the purpose of furthering some goal through the use of intimidation (AR) - must intimidate person to whom threat is directed (see Alkhabaz; Green spent a lot of time on this)

NB: remember that if statute has a mens rea missing, can be filled in with any level of intent other than negligence.

Random Notes

"A conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence." ----------------------- [1] satisfied by knowledge of a "high probability" that the element exists (§2.02(7)) [2] forcing prosecution to disprove all possible affirmative defenses is unreasonable [3] the imminence requirement is the only thing that ensures killing in self-defense will be used as a last resort 4. i. People v. Unger: prison escapee does not fit neatly into either category; but necessity (choice of evils) appears most applicable. ii. Policy: society's interests in preventing escapes must, in all but the most egregious cases, out weigh the interests of the individual defendant.

[4] NB: Some say that this should not be considered a form of insanity defense, but is rather simply a D asserting his constitutional right to present evidence to deny certain elements of the crime; in this case, the MR requirement (642) [5] how close in space and/or time you are to final overt act of the crime [6] Attempt is a derivative offense (i.e., everyone has to attempt to get to his portion of the crime. Under accomplice, however, he would probably be guilty of something. [7] "strongly corroborative" of the commission of crime (see circumstances listed in outline) [8] e.g., Under CL, pointing an unloaded gun an pulling trigger is not assault, but can be attempted murder. Assault is much stricter and requires present ability to inflict harm; attempt is easier to prove. [9] group all crimes based on "value of human life"; depraved indifference, etc into groups [10] usually involve distribution of narcotics or other contraband in which there is successive communication or cooperation [11] NB: under CL, it can be any number of crimes; MPC is the SAME crime [12] first, show that principal committed target offense; second, prove that accomplice is an accomplice; third, show that the secondary crime was a natural and probable consequence; therefore, accomplice will be liable for the secondary crime as well