Card Set Information

2013-05-10 07:47:23
criminal law

criminal law
Show Answers:

  1. MPC 2.01(2): the following are not voluntary acts:
    • (a) a reflex or convulsion;
    • (b) a bodily movement during unconsciousness or sleep
    • (c) conduct during hypnosis or resulting from hypnotic suggestion;
    • (d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual
  2. MPC 2.01(1)
    A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable

    [Note: conduct= act+mental state]
  3. MPC 2.01(3)

    • (3) Liability....may not be based on an omission...unless:
    • (a) the omission is expressly made sufficient by the law defining the offense or
    • (b) a duty to perfom the omitted act is otherwise imposed by law
  4. "Doing" case law
    • Robinson (drug needle marks)
    • Martin (drunk involuntarily taken to public highway)
    • Newton (unconscious)
  5. "Not doing" case law
    • Jones (child neglect)- omission not an act if lack of legal duty. remanded since unclear if Jones had legal duty.
    • Pope (child abuse/death)- since mother was present and Pope had no status relationship, omission not an act
  6. Actus reus principle
    No culpability without a voluntary criminal act--> in order to constitute a crime, the act must be voluntary-the result need not always be (i.e. involuntary manslaughter still has actus reus)
  7. (common law) actus reus of an offense consists of:____.
    (1) a voluntary act or omission [failure to perform legal duty] (2) that cuases (3) social harm
  8. Status cases
    Jones v. City of Los Angeles- homelessness is a status that should not make someone criminally liable since no act, a way of being)

    Robinson v. CA Sup Court- being addicted to narcotics is a status. if not in process of touching a drug, can't be punished since no act
  9. Why no general duty to rescue?
    autonomy principle: moral law may be best in governing our conscience; criminal law may be too intrunsive

    imposing a legal duty to assist may do more harm than good, and if people are not at risk of liability, they may be more prone to help

    resources: may want to punish real criminals and not bystanders
  10. Exceptions to no duty
    • statute imposes duty to care for another
    • status relationship (e.g. parent/child, spusal)
    • contractual obligation
    • omission following an act
    • --creation of risk
    • --voluntary assisted/assumption of care (start to give assistance such that victim depends on Ds help/control) and put person in seclusion
  11. special duties:
    • Good Samaritan statutes in three states
    • -duty of care wen creating another person's peril
    • -duty to report if a certain profession
  12. cases where duties may/may not be triggered by special circumstances
    Beardsley- man's mistress swallows tablets and dies; he had no duty of care since no status relationship

    Carrol- stepmother guilty of child endangerment when failed to prevent husband from killing her stepdaughter

    Miranda- lady's boyfriend failed to protect a baby from being fatally beaten by the lady; no duty of care because not an established parent or legal guardian

    Cardwell- mother guilty of child abuse for failing to protect her daughter from sexual abuse by abusive husband--duty of affirmative performance to ensure child's welfare
  13. In acts vs. omissions, common law privileges the:
    status quo. i.e. if physician denies treatment won't be guilty of act (Barber) but if physician offers euthenasia, will be (Airedale)
  14. MPC culpability

    • purpose
    • knowledge
    • recklessness
    • negligence
  15. MPC culpability: purpose

    A person acts purposely with respect to a material element of an offense when:(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
  16. MPC culpability: knowledge
    2.02 (2)(b)

    (b) Knowingly.A person acts knowingly with respect to a material element of an offense when:(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
  17. MPC culpability: recklessness
    2.02(2)(c)A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.
  18. MPC culpability: negligence

    A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.
  19. an element of an offense means:____ (as per the MPC)
    (i) such conduct or (ii) such attendant circumstances or (iii) such a result of conduct as(a) is included in the description of the forbidden conduct in the definition of the offense; or(b) establishes the required kind of culpability; or(c) negatives an excuse or justification for such conduct; or(d) negatives a defense under the statute of limitations; or(e) establishes jurisdiction or venue;
  20. a material element of an offense means: ____
    "material element of an offense" means an element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct;
  21. attendant circumstance
    a fact or condition that must be present at the time the defendant engages in the prohibited conduct and/or causes the prohibited result that constitutes the social harm of the offense. (i.e. burglary must occur at night. Night is the attendant circumstance)
  22. Every __(1)___ must be modified by __(2)_____
    • 1) material element
    • 2) mens rea
  23. MPC 2.02(7)
    [rejects willful blindness]

    (7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.

    [See U.S. v. Jewell (marijuana case) where deliberate ignorance is equivalent to positive knowledge]
  24. Interpreting a statute
    • -Examine
    •     1) actus reus and
    •     2) if purposely, knowingly, recklessly, or negligently (2.02(2))
    • -if ambiguous, look to
    •   legislative intent
    •   grammatical form,
    •   or apply mean rea from beginning to all (distributive rule--2.02(4), unless in middle then from that point forward)
    • -default at least recklessness if no mens rea (2.02(3))
    • -determine for whom offense applies
  25. MPC nesting rule

    (5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely.
  26. MPC 2.02
    (1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.
  27. strict liability
    liability imposed w/out any demonstrated culpability, even negligence (no mens rea requirement). Often for public regulation (i.e. drugs)

    MPC does not allow for anything with prison/probation sentence

    Morisette (army casings case)- must be proven that defendant had knowledge of the facts that made the conversion wrongful (that owner had not abandoned the property); without it can't have knowing conversion

    Balint: no need to prove knowledge that drug being sold is illegal. leg. intent was for person to sell drugs at their own peril

    Dotterweich: no mens rea required when person accidentally mislabeled drug they packaged

    Baker: (stuck cruise control) absence of voluntary act a complete defense to strict liability

    • vicarious liability:
    • Guminga: waitress sold alcohol to 17 yr old, owner charged; court holds can't convict someone of crime that involves imprisonment for an act didn't commit, have knowledge of, or give consent to.

    Note: can make crimes punishable that don't even meet MPC negligence (i.e. Balient, Dotterweich); idea is to protect public safety
  28. mistake of fact
    MPC 2.04

    • -only relevant if it negates culpability:
    • if it "negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense.:

    - generally adopted, except for crimes involving minors, sexual behavior, or drugs where most states impose "lesser wrong" culpability as per common law (like drug crimes)

    MPC: must negate the mental state required to establish any element of the offense. If mof defense, will hold D for lesser offense if conduct constituted lesser offense (2.04(2))


    • -look at the world through the D's eyes in a factual, not legal manner
    • - for negligence/recklessness, has to be a reasonable/honest mistake; for intent/knowledge does not

    2.04(4) lesser wrong: lesser wrong not a defense if D would be committing offense if facts were as he supposed them to be.
  29. common law mistake of fact
    A. was the act that was intentional "inherently wrongful?"

    regina v. prince- man taking girl. no defense where no mens rea not required, guilty since wrong enough to take a girl

    people v. olsen- no "reasonable mistake of age defense" for statutory rape 

    B. recklessness standard: aware of the risk? was risk substantial and unjustifiable?

    - some find strict liability in statutory rape unconstitutional
  30. mistake of law
    illegality of the conduct

    • common law:
    • -policy: when cannot rely on mistake of law, will be more careful with one's conduct
    • - only defense if founded on official statement (not statement by lawyer)
    • - U.S v. Albertini- reliance on court opinion valid defense since was controlling law at the time: 
    • --has to be official statement

    regulations- must know of regulation and willfully violate it (debated as to this rule)

    • Regina v. Smith: D damaged walls to retrieve wiring he installed; thought the property was his, so he tried to move it. court held that person has to intend to destroy other's property to meet mens era; if attendant circumstances a question of law, then MOL can be a defense
    • -----------
    • MPC
    • - lack of knowledge that the law applies to you is not an excuse (2.02(9))

    • official reliance: MPC- 
    • defense if proved by a preponderance of the evidence (widely accepted)
    • - due process: it's a violation of due process to convict someone for conduct that gov't reps had earlier stated was lawful
    • -reasonableness: a D  entitled to rely on most recent controlling court decision 

    2.02(9) ignorance of law no excuse where D unaware crime exists or misunderstands its scope except (see 2.04(3))

    • 2.04(3)
    • except when:

    • -statute not released to the public (fair notice)
    •     fair notice: doesn't believe illegal and statute not know to her and was not published or reasonably made available.

    • -reasonable reliance-  an official statement by statute, judicial order, administrative order, or public official charged to interpret statute
    • ----

    ppl v. marrero: fed officer carried gun thinking law allowed it, law only allowed state officers. can't rely on reasonable, subjective understanding of law otherwise encourage ignorance of laws
  31. proportionality
    • punishment must fit the crime
    • 1.02-differentiate on reasonable grounds between serious and minor offense and safeguard offenders against excessive, disproportionate or arbitrary punishment

    sentencing discretion less about the difference b/w crimes and more about difference b/w criminals and contexts

    -does 8th amendment include proportionality component? ongoing debate

    • Ewing- 3 strikes, argued violates 8th amendment
    • can control the discretion of authorities by limiting the vagueness of laws
  32. rape- MPC
    MPC 213.1 

    • 1) male who has sexual intercourse with a female not his wife guilty if
    • a) compels her to submit by force or threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone or
    • b) he has substantially impaired her power to appraise/control conduct by administering or employing w/out her knowledge drugs, intoxicants, or other means [i.e. temporarily impaired]
    • c) female is unconscious or
    • d) female less than 10

    • 2) gross sexual imposition-felony of the third degree
    • a) compels submission by any threat that would prevent resistance by a woman of ordinary resolution 
    • b) knows the suffers mental disease rendering incapable of appraising situation
    • -------
    • state statutes
    • CA (2005)- rape of spouse not included here, in another statute; defines consent: "positive cooperation in act or attitude pursuant to an exercise of free will."

    NY(2006)- can be express or implied threat

    • WI- sexual intercourse or sexual contact
    • ----

    • general act requirements: 1) sexual penetration 2)force 3) lack of consent 
    • - in some jurisdictions,  force not required (minority of jurisdictions, see MTS), resistance not required

    • MTS (NJ)- [case with girl who didn't give consent, maybe sleeping] eliminates force requirement: no more force than the act of penetration; requirement for non-rape is affirmative consent
    • -"the law places no burden on victim to have expressed non-consent or to have denied permission..."
    • - force broadened to any act without affirmative consent
  33. rape-common law
    • force and resistance:
    • State v. Rusk- Pat(lady) drove Rusk (dude) to his house; met at bar. HE takes her keys, asks her to come inside; reverses lower court: can convict if victim's fear reasonably grounded.

    force: something more than the force required to penetrate. Some jurisdictions take force requirement out all together

    • resistance: some include formally, others read into the requirement of force. often "Reasonable" resistance but consider frozen fright; not required in attack scenarios
    • but note Warren (Illinois)- D placed hand on V's shoulder, carried her to woods and had sex with her; V didn't scream, fight back, or flee.
    • no conviction because must  show 1)resistance or 2) resistance would be futile

    reasonable apprehension: if fear is unreasonable, but D knows V afraid and take advantage of it, conviction can be sustained
  34. rape- coercion, duress (threats)
    • a) implicit threat
    • state v. alston- woman left abusive relationship with Alston; they had nonconsensual sex but not "force" (act of undressing her and sex not force alone) past abuse not implicit threat, must be more imminent

    • b) nonphysical threats 
    • -thompson- principal threatened that student couldn't graduate if didn't have sex with him. must be threats under the statute
    • - Mlinarich- man took 14 y/o girl under custody; threatened to send to detention center if she didn't have sex; no force, threat of force.

    • solving problem of nonphysical threats:
    • -some states apply duress/coercion/extortion/using a position of authority

    - Meadows (PA) compulsion by use of physical, intellectual, moral, emotional, or psychological force, either express or implied-- upheld conviction when V had adolescent crush on D and D took advantage of it.

    Lovely- (likka sto manager who employed drifter)  in statute felony to coerce submission to sexual penetration by threatening to retaliate against the victim.
  35. sexual acts incapacitated by drugs, etc; other defective consent
    • MPC 213.1(1)(b)
    • liability only when 1) D has adminsitered an intoxicant 2) w/out victim's knowledge and 2) for the purpose of preventing resistance

    • "defective consent"- things that can invalidate consent
    • 1. maturity
    • 2. intoxication 
    • -would victim not have engaged in intercourse w/ D if not under the influence (PEople v. Giardino--drunk 16 yo gave blow jobs)
    • - State v. Al-Hamdani- blood alcohol level that was sufficient to render V incapable "cannot appreciate the consequences of their actions."

    • 3. pressure and threats
    • 4. authority and trust

    -Also fraud
  36. absence of consent in sexual act
    --which wouldn't make someone liable for rape in most states, but would be some other offense--

    - is it state of mind (subjective) or action (objective)?

    - types of non consent: verbal resistance + behavior; verbal resistance alone; doesn't matter resistance or ambivalence, need verbal of physical affirmation (i.e. in Jersey)
  37. mistakes as to consent
    • commonwealth v. sherry (nurse and doctors)
    • commonwealth v. fischer (college due)
    • commonwealth v. williams (V accepts ride from D, Do threatens to kill her and wants sex; she says go ahead)-no defense: leg. didn't put in element of crime victim's state of mind so no defense for D regarding D's mistaken belief

    • ii. recklessness or negligence?
    • -REgina v. Morgan (UK) man invited friends to gang rape wife b/c of her alleged rape fantasy; mens rea is intent and negated by mistake; reasonable or not is not an issue (that's a negligence standard)

    - how decide if reasonable..."reasonable to whom?" (MacKinnon article); does no mean no (Husak and Thomas article)
  38. Murder at common law
    -unlawful killing with malice aforethought

    *manslaughter: unlawful killing without malicious aforethought*

    • can mean: 1) intente to cause death or grievous bodily harm to anyone, with no or slight provocation ii) knowledge death or grievous bodily ham is likely and pursuing anyway iii) intent to commit any felony
    • --not limited to premeditated murder
  39. Murder in the MPC
    210.1- p/k/r/n causing death of another human being

    210.2 homicide constitutes murder when it is committed "purposely or knowingly" 210.2(1)(a) OR "committed recklessly manifesting extreme indifference to the value of human life." which is presumed if D is engaged in felony; felony 1

    210.3 manslaughter when reckless, under extreme emotional distrubance with reasonable explanation; felony 2

    210.4 negligent homicide- felony 3

    • 210.2 rejects line between deliberate and impuslive and degrees
    • -rejects premeditation and deliberation as basis for id'ing murders that desrve greatest punishment
  40. State homicide statutes
    see page 28

    • CA (didn't reform under MPC)- 
    • PA- p/k/r/n
    • NY- degrees; p/k/r/n
  41. intended killings: premeditation and deliberation

    • -debate over time period requirement
    • -proof- clear evidence of planning, escape, prior relationship, etc.

    Commonwealth v. Carroll- army dude with psyh who said killed wife, kids under a "reflexive type of homicide." premeditation can be very short; if question of insanity up to jury not solely on psychiatrist.

    People v. Anderson- an explosion of violence not something with motive, so no 1st degree murder

    - MPC rejects (and NY)
  42. provocation and voluntary manslaughter- MPC
    MPC 210.3(1)(b)

    • -"under the influence of extreme emotional disturbance for which there is some reasonable explanation or excuse."
    • - does actor's loss of self-control arouse sympathy in ordinary person: "from the viewpoint of a person in the actor's situation under the cirucmstances as he believes them to be (i.e. situation = physical ailments like blindness; idiosyncratic moral views are not a situation) 

    Klimas- not legally insance but psychotic depressive illness, kills wife; evidence of psychosis inadmissible

    Steele- Vietnam vet snapped- inadmissible
  43. provocation/voluntary manslaughter- common law
    common law: for manslaughter, must be in "heat of passion" for which there is legally adequate provocation:-must be provoked-victim must have stirred up passionin Girouard- only specific provocations

    Girouard (Maryland)- man stabbed wife who complained about marriage, taunted him; words alone never adequate provocation

    Maher (man shot his wife's lover but never saw them have sex)-- jury should decide if enough time to cool off for a reasonable man; remanded assault with intent to murder charge. (minority view)

    Courts moving towards towards standards that are less strict than Girouard

    • policy behind provocation as partial excuse or justification:
    • -human nature kinda frail, we kinda lose control of ourselves...but the provoker didn't endanger anybody's lives even when both parties have some kind of moral failing.

    • cooling time: 
    • Bordeaux- dude raped D's momma, D beat dude up, D returned later to kill dude; killing happened well after beating, no rational basis for heat of passion
    • Gounagias- dude sodomized D and bragged about it, time interval b/w taunts and killing was enough to no longer be heat of passion
    • Berry--passage of time could aggravate someone more, up to jury to decide

    non provoking victims and provoking Ds--i.e. intent to kill innocent bystanders- no defense in Rex (stabs bystander), Spurlin (killed son after arg with wife)

    • victims who elicit provocation
    • REgina v. Johnson (UK)
    • People v. Casassa

    ND and OR explicitly forbid provocation defense if victim elicited provocation
  44. unintended killings

    • -involuntary manslaughter (reckless homicide)
    • 210.3(1)(a)

    D consciously disregarded a substantial and unjustifiable risk that his conduct will cause death

    • --------------
    • - negligent homicide: 210.4(1)~ D acts without awareness of such risk 

     ordinary negligence insufficient, must be gross: such a departure from ordinary person's conduct under same circumstances as to be incompatible with proper regard for life (State v. Barnett, 1951)

    MPC excludes heredity, intelligence, or temperament defenses from "actor's situation" in negligent homicide

    -State v. Williams- baby died from lack of medical attention, Ds didn't take to doctor b/c just thought it was toothache: reasonable person
  45. unintended killings: criminal vs. civil liability for killing
    -------civil vs. criminal liabilityCommonwealth v. Welansky (Mass)- boston bar club owner convicted of involuntary manslaughter through "Wanton or reckless conduct"= grave dangers must have been apparent and D must have chosen to run the risk; no contributory negligence defense in criminal cases

    tests: (Rex v. Bateman)- negligence beyond compensation; (Barnett)- conduct amounts to an indifference to consequences

    • MPC: negligence and recklessness separated
    • (see People v Hall, Colorado skier case--> negligent homicide)
  46. objective standard vs. awareness of the risk in unintended killing
    objective: reasonable person can capture culpability (Pillsbury: father rushing son to hospital vs. teenager showing off-- both aware but a reasonable person would gather the motive creates different culpability)

    -MPC considers "in the actor's situation"

    - common law can consider individual: lady had low IQ gave birth and thought baby dead but really died when she wrapped it up in blankets thinking it was dead; reversed conviction (Everhart)
  47. extreme indifference murder
    there's a mental state being regulated

    Commonwealth v. Malone- friends playing gun game where teenager shot other teenager when gun shot unintentionally---> gross recklessness in this jurisdiction=malice because must reasonably anticipate that death is likely

    • ----
    • manslaughter vs. unintended murder
    • ~ unintended murder: type of malice from recklessness or amount of risk
  48. murder by drunk driving
    2.08~ intoxication

    most states will allow drunk driving to support convictions of murder; so unawareness is immaterial

    • common law:
    • could go as far as malice (--> murder) because aware going to bar and should know drunk driving dangers
  49. Felony murder
    • MPC:
    • presume recklessness if homicide while in act of : robbery, rape, arson, burglary, kidnapping, or felonious escape

    • for: pay for consequences of committing serious crime; deterrance of carrying guns
    • against: should not punish for bad luck; punishment should be proportional to wrongdoing

    • NY
    • -like MPC
    • -must meet all four conditions (see p 38 of outline)
    • MPC thinks it should be abolished
    • --------------------

    • common law:
    • Serne: English case- set fire to house (qualified ~ "act known to be dangerous"
    • Stamp: murder not limited to deaths that are foreseeable (strict usage of rule)
  50. misdemeanor manslaughter rule
    criminal negligence if proximate cause of V's death 

    • proximate cause:
    • -Commonwealth v. Williams- no. no causal connection b/w not renewing license and accident
  51. inherently dangerous felony limitation
    abstract (CA) vs. depend on facts of case

    people v. phillips (CA)~ chiropractor who said could treat child and charged $700. the crime was theft. if felony can be committed in away that doesn't endanger humn life, not inherently dangerous (theft isn't dangerous)

    Henderson (Cal)- hostage situation; gun went off killed someone --> unlawful restraint of another not necessarily danger to human life

    Stewart (RI)- crack addict neglects infant; infant dies from dehydration; murder based on child abuse. RI looks at facts of case rejects CA abstract rule: child neglect inherently dangerous to human life.
  52. felony murder-Merger doctrine
    - merger doctrine: if the act that constitutes the felony IS the act that constitutes the death, then you don't have murder "in the course of " the felony--they merge and become the same

    REVIEW CASES!!!!!!
  53. killings not in furtherance of felony
  54. the death penalty
    • policy considerations:
    • deterrence: no clear empirical conclusions 
    • retribution
    • error
    • bias
    • -- McCleskey v. Kemp~have to show legislative discriminatory purpose
  55. Justification and excuse
    If reasonable mistake when use deadly force, not liable (NY in Goetz, common law, MPC)

    • if unreasonable mistake: 
    • -NY: fully liable- on/off switch
    • -common law: imperfect self-defense
    • - MPC: dimmer based on culpability; justification not available for offense for which  reckless or negligence=culpability


    • common law:
    • -necessity- cannot avoid harm without the use of force
    • -reasonable belief- reasonable person would belief s/he under attack and necessity to use force
    • -proportionality- roughly proportional to the threat
    • - felony( ?)


    • MPC 3.04
    • 3.04(1)- use of force is justifiable when actor believes force is immediately necessary  for purpose of protecting himself against use of unlawful force on the present occasion
    • --deadly force not justified unless
    • 3.04(2)- actor believes  necessary to protect himself against death/bodily harm, kidnapping, sexual intercourse compelled by force or threat
    • -must have honest sincere belief to excuse D if the offense has a knowing or purpose mens rea
    • -deadly force= force used with the purpose of causing to create substantial risk of death or serious bodily injury; can be convicted of lower offense at most manslaughter if reckless belief
    • ~D loses self-defense if aggressor in the "same encounter"
  56. justification- standards of judgment in deadly force in self-defense
    -subjective test

    Goetz (NY): must have objective reasonable belief of deadly danger-- subjective belief not enough

    -objective test

    -actor's situation- People v. Romero: claimed his Hispanic cultre made him feel that he was in imminent danger of great bodily harm. court was like no ese.
  57. Battered woman's syndrome in self-defense
    State v. Kelly- lady killed husband after years of abuse; past abuse not valid self defense
  58. exceptions to deadly force
    • limitation of deadly force self-defense
    • 1. duty to retreat: courts divided on retreat vs. don't have to retreat
    • 2. D is the aggressor
  59. protection of property and law enforcement
    • MPC
    • 3.06(1)(a)- use of force for protection of property to prevent unlawful trespass/theft of property
    • 3.06(3)(a)- D can only use force if he asks intruder to desist, unless danger/harm --> useless
    • 3.06(3)(d) deadly force against intruder okay if intruder uses deadly force OR if D's use of force other than deadly force to prevent commission of crime will expose D to substantial danger

    • defense of habitation:
    • -MPC- if non-deadly force exposes to substantial danger of serious bodily harm
    • - CA- home protection bill of rights
    • -CO- "make my day" law
    • -FL- stand your ground

    syndor: D getting robbed by guy pulls gun and takes D's chain, D wrestles guy, guy runs, D shoots in back as fleeing: court: no defense- required to retreat unless at the moment shots were fired he was being robbed; robbery not continuous even if perp running away with property
  60. Necessity: choice of lesser evil (p. 52-54)
    • justification for conduct that would otherwise constitute an offense if:
    • 1) D believes conduct necessary to avoid evil,
    • 2) the evil attempting to avoid is greater than that charged
    • [Note: pretty open ended, case-by-case]

    • No defense if: D put himself into situation by own recklessness or negligence where mens rea of offense= negligence
    • -----------------
    • NY: "necessary as an emergency measure to avoid an imminent public or private injury...which develops through no fault of the actor."
    • ---------------
    • prison escape:
    • - Bailey, defendant make a bona fide effort to surrender or return as soon as the duress or necessity had lost its coercive force.
  61. attempts
    • compete, imperfect attempt: D performs all acts she sets out to do, but fails to attain her criminal goal
    • incomplete attempt: D does some of the acts necessary to achieve the criminal goal, but desists or is prevented from continuing

    • ------------
    • D must purposefully seek to engage in conduct while acting out whatever culpability is required
  62. attempts-mens rea
    • Smallwood- man with HIV raped three women; can't infer intent to kill from the act of exposing them to risk; must look at add'l evidence; attempt requires purpose to produce proscribed result
    • Hinkhouse- HIV dude who knew about status and lied, told people he would spread it to others

    review: "intent"-p.56
  63. attempts- act
    • MPC 5.01- guilt of attempt if acting with the culpability required for the commissino of the offense
    • a) purpose
    • b)does or omits to do something w/ purpose of causing result
    • c) substantial step: focus on what has already happened not what hasn't been done

    substantial step: strongly corroborate of Ds criminal purpose

    MPC: punishment the same for the attempt as for the crime attempted; NY makes it one classification below it.

    -solicitation- federal cases: can be attempt if substantial step under the circumstances; states more conservative
  64. attempts-impossibility
    • factually impossible: pickpocket of empty pocket, pulling trigger of unloaded gun
    • legally: D receives unstolen property thinking it's stolen

    Common law: no defense, MPC: defense
  65. complicity
    • MPC 2.06
    • (1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.
    • (2) A person is legally accountable for the conduct of another person when:(a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; or(b) he is made accountable for the conduct of such other person by the Code or by the law defining the offense; or(c) he is an accomplice of such other person in the commission of the offense.
    • (3) A person is an accomplice of another person in the commission of an offense if:(a) with the purpose of promoting or facilitating the commission of the offense, he(i) solicits such other person to commit it, or(ii) aids or agrees or attempts to aid such other person in planning or committing it, or(iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or(b) his conduct is expressly declared by law to establish his complicity.
  66. MPC struggle bus-complicity
    when is knowledge of an ongoing crime translated into complicity and aid?

    -"substantial" was in draft, no longer there

    -MPC is silent on the mens rea required for attendant circumstances (deliberate choice not to resolve)
  67. Conspiracy
    5.03- (1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:(a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or(b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.(2) Scope of Conspiratorial Relationship. If a person guilty of conspiracy, as defined by Subsection (1) of this Section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime.(3) Conspiracy with Multiple Criminal Objectives. If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.
  68. conspiracy- general discussion
    • abandonment
    • Hyde- if D wants out, must announce that intention affirmative to his co-conspirators
    • Eldrege- D must affirmatively act to THWART conspiracy (Sup Court rejects in United States Gypsum Co)
    • ---
    • actus reus: agreement to commit a crime (Ianelli); most statutes require an over act
  69. conspiracy-scope
    what about crime organizations? prejudicing individual Ds because too broad?

    Kotteakos (supreme court)- no conspiracy--spokes but no rim on the wheel

    MPC limits scope: 5.03(1) (2) the crimes he intended to promote and to the parties with whom he agreed.

    • Pinkerton- (bros bootlegging likka--"continuous conspiracy") once conspiracy forms, each person guilty of all substantive crimes committed by a partner in the furtherance of conspiracy unless 
    • 1) affirmatively withdraws
    • 2) conspiracy ends
    • 3) actions unforeseeable
    • McGee rejects " impose punishment...for substantive offenses in which he did not participate."