Definitions for Criminal Law

8/2/2019 Definitions for Criminal Law

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MAIN IDEAS FOR CRIMINAL LAWTheories of Punishment1. Utilitarianism (Jeremy Bentham) the purpose of all laws is to maximize the happiness of society.

Utilitarians stressgeneral deterrence(punishment intended to deter the general community) Specific (or individual) deterrenceis an alternative utilitarian goal. Criticism: (1) Uses people solely as a means to an end, that they do not have immutable rights (2) Can

justify punishment of the innocent (3) Critics doubt that criminals can be reformed.

2. Retributivism (Immanuel Kant) Focus on the individual. The main point is human dignity. Punishment isjustified when it is deserved. It is deserved when a wrongdoer freely chooses to violate societys rules. Focus onhumans free will & dignity. Humans are ends, not means.

Assaultive retribution (societal retaliation) Because the criminal has harmed society it is OK for societyto harm him back.

Protective Retribution Punishment is a means of securing a moral balance in society. (Not allowingfree riders).

Victim vindication Righting a wrong by reaffirming the victims worth as a human being in the face ofthe criminals challenge to that worth.

Criticism: (1) Punishment is senseless and even cruel if it does no good; (2) it legitimizes hatred & anger;(3) it is irrational as it is based on anger, not reason

ELEMENTS OF THE CRIMINAL OFFENSEA criminal offense is:

(1)a culpable actors;(2)unlawful (must be by statute: legality);(3)act (actus reus);(4)wrongfully;(5)endangering a protected public interest and (sometimes);(6)causing a harmful consequence.

A criminal offense consists of 2 main elements:

(1) Actus Reus (a bad act), the physical or external portion of the crime(2) Mens Rea (a guilty state of mind), the mental portion of the crime.

Actus Reus (Act Requirement): Consists of three ingredients:(1)a voluntary act(2)that causes(3)social harm.

It is based on the retributive belief that it is morally wrong to punish people for their enacted-uponintentions. We dont want to punish types of people (e.g. poor). We want to protect free speech & theability to change ones mind.

Consequence Offenses: Where the law is determined by the harmful consequence (e.g. murder). Other laws are

based upon the act committed (e.g. rape), rather than the consequences.

Proctor v. State (COA Okla. 1918) Man was convicted of keeping a place with intent to unlawfully sell liquor. Theconviction is vacated here because to constitute a crime there must be some commission or omission. The badintent (mens rea) and the bad act (actus reus) must concur in time.

FAILURE TO ACT CAN BE AN ACT - Omission v. Act:Jones v. US (DC Cir. 1962) Identified 4 situations in which the failure to act may constitute a breach of a legal duty:(1) where a statute imposes a duty to care for another; (2) where one stands in a certain status relationship to

another; (3) where one has assumed a contractual duty to care for another; and (4) where one has voluntarily

assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.


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REQUIREMENT OF VOLUNTARINESSMartin v. State (COA Ala. 1944) Police brought drunken man into public, and then charged him with publicdrunkenness. Conviction overturned. The criminal act must be voluntary.

Involuntary Acts: The Model Penal Code considers reflexes, bodily motions during sleep, conduct during hypnosis,and bodily movements otherwise not a product of the determination of the actor to be involuntary.

People v. Decina (1956) Defendant found criminally liable for car accident deaths where he had an epilepticseizure, because he knew that such a seizure might occur at any time.

THE PROHIBITION OF STATUS CRIMESRobinson v. California (1962)Re: A CA statute that made it a criminal offense to be addicted to the use ofnarcotics. Held: Narcotics addiction is an illness. It would be cruel & unusual punishment in violation of the 14thAmendment to imprison someone based upon their status as ill.

Powell v. Texas (1968)Did not allow the same defense for alcoholism where his problem wasnt for being drunk(which may not be of his volition), but for being drunkin public. Concur (White): Says that even where there is an

irresistible compulsion to drink, a man may not be shielded from conviction when he knowingly failed to take

reasonable precautions against committing a criminal act, here the act of going toa public place.

Pottinger v. City of Miami (S.D. Fla. 1992) Plaintiffs complain that Miamis practice of arresting homeless people forthe basic activities of life (e.g. sleeping, eating) is a violation of the 8th Amendment ban against cruel & unusualpunishment. Court agreed based on the involuntariness of the activities given the unavailability of low-income

housing.

LEGALITY (Fair Warning)Legality A person may not be punished unless her conduct was defined as criminal before she acted. Thisprinciple has 3 corollaries:

(1) Criminal statutes should be understandable to reasonable, law-abiding people(2) Criminal statutes should be crafted so as not to delegate basic policy matters to policemen, judges & juries for

resolution on an ad hocand subjective basis.(3) Judicial interpretation of ambiguous statutes should be biased in favor of the accused (lenity doctrine).

Keeler v. Superior Court (Calif. 1970)Facts: Man punched his pregnant ex-wife in the stomach. Fetus died. He wasprosecuted for murder the unlawful killing of a human being. He claimed that the fetus was not a humanbeing under the law. Held: The legislature did not consider a fetus to be a human being. The court does not havethe right to define crimes. And, without fair warning that an act is a crime, there is a violation of due process of

law. (Prohibition of ex post facto laws).

SPECIFICITYCity of Chicago v. Morales (1999)Chicago City Council enacted a criminal ordinance that prohibited criminal streetgang members from loitering with one another or with other people in a public place. The S.Ct. of IL held thatthe ordinance violated the due Process Clause of the 14th Amendment. This court affirmed, as the ordinance wasunconstitutionally vague. (E.g. How far must loiterers go after the disperse?) It provided absolute discretion to the

police to determine what constituted loitering. Thus, the ordinance could be applied by the police to attackinnocent activity.

Note: If it were written more narrowly (e.g. prohibiting intimidating activity by gang members) it would beconstitutional.

Mens Rea The Guilty MindThe criminal law generally conceives bad thoughts as (1) the desire to harm others or violate some other socialduty; or (2) disregard for the welfare of others or for some other social duty. One can manifest a guilty mind, or


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mens rea, by implementing an ignoble desire, or by acting uninfluenced by a noble desire, such as concern for the

safety of others.

-Every element of the actus reus must adhere to a requirement of mens rea.

Regina v. Faulkner (Ireland 1877) Sailor accidentally set fire to a ship while attempting to steal rum. This courtoverturned a lower court decision finding him guilty & sentencing him to 7 years. The defendant should intend the

act with which he is charged, or that it was the necessary or foreseeable consequence of some other felonious orcriminal act.

-For attempts (non-complete offenses) the prosecution must prove purpose (that the defendant was aware of the

situation & purposely intended it to happen.

-For Knowingly & Purposely there is a presumption that people know the natural consequences of their actions

Ideas:

(1) Intentional/Purposely D not only knew what he was doing, but intended it to happen (Best standard for D).(2) Knowingly Prosecution must prove that the defendant knew what they were doing and/or the requiredcircumstances existed and/or that the result would occur.

(3) Recklessly Where the defendant knew there was a risk & took it anyway(4) Negligently He should have been aware (as a reasonable person would have). Dont need to prove mens rea.(5) Strict Liability No mens rea necessary. Best standard for prosecution.

Model Penal Code 2.02(2) Culpability DefinitionsCircumstance Result ConductPURPOSELY he is aware of such it is his conscious it is his conscious

(Highest level of circumstances or objectto cause object to engage inmens rea) hopes & believes such a result conduct of that

they exist nature.

KNOWINGLY he is awarethat he is aware that it is he is aware that hissuch circumstances practically certain conduct is of thatexist that his conduct will nature

cause such a result

RECKLESSLY he consciously he consciously Awareness:(The lowest standard disregards a disregards a substantial Actor isrequiring mens rea. substantial & & unjustifiable risk that aware that his

it is the default if a unjustifiable risk that the material element conductstandard is not the material element will result from his disregards amentioned in the law) exists (Using conduct. risk. (aware of

reasonable person conduct, notstandard we think of drugsyou were aware) themselves,

for example.

NEGLIGENTLY a reasonable person a reasonable personwould be aware would be aware of aof a substantial & substantial & unjustifiable

unjustifiable risk that risk that the materialthe material element elementwill result fromexists his conduct.

MISTAKE


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-Can apply the mistake doctrine only to those elements where there is a mistake.

1. Mistake of Fact He thought the umbrella was his.2. Mistake of Governing LawHe thought you could take any umbrella (He didnt realize it was against the law).(See US v. Baker)3. Mistake of Non-Governing Law Mistake of a law that is not the main law in question. (E.g. knew about the lawagainst theft of umbrellas, but didntknow about law that made all umbrellas property of the state). (See People v.Bray; Regina v. Smith)

-#1 & #3 can be used as defenses; #2 is never a viable defense.* * * * *People v. Ryan (COA NY 1993) Re: law making it a felony to knowingly & unlawfully possesses 625 milligrams of a

hallucinogen.

Issue: Must the defendant know the weight of the material possessed?

Held: Yes. The purpose of the knowledge requirement is to avoid over-penalizing someone who unwittingly

possesses a larger amount of a controlled substance than anticipated. Order reversed & indictment dismissed.

* * * * *State v. Lima (RI 1988) - Defendant was convicted of putting child into a tub of scalding water. The trial judgecommitted an error in refusing to instruct the jury that an intentional act is required to convict under the statute.

State v. Guest (Alaska Sup. Ct. 1978)Does an honest & reasonable mistake of fact regarding a victims age serve asa defense to a charge of statutory rape? Yes. To refuse such a defense would be to impose criminal liability w/oany criminal mental element.

Model Penal Code 2.04(2): deals specifically with the problem of mistake & grading. The defense of ignorance ormistake is not available if the defendant would be guilty of another offense had the situation been as he supposed.In such case, however, the ignorance or mistake of the defendant shall reduce the grade & degree of the offense.

* * * * *Mistake of Fact Defense (From the common law, but now in MPC) if the defendant proves that, because of amistake of fact, he didnt possess the mens rea, then he is not guilty. This is an affirmative defense in that itallocates the burden of production (not proof) to the defendant.

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People v. Bray (COA Cal. 1975) RE: Mistake of Non-Governing LawAppeal of a conviction for being a felon in possession of a concealable firearm. Man didnt know that he was afelon.

Issue: Does the statute require proof of the defendants knowledge of his felony status?Held: Yes. Instructions on this matter should have been given.

Regina v. Smith (Brit. 1974) RE: Mistake of Non-Governing LawCourt dismissed the charge of damaging the property of another on the ground that the prosecution had not

proven that the defendant did so intentionally.

* * * * *US v. Baker (5th Cir.) - RE: Mistake of Governing LawAppeal of a conviction for trafficking in counterfeit goods.

Issue: Should the jury have been told that an element of that offense is knowledge of the criminality of the conduct?Held: No. We must distinguish between two different situations: (1) that in which the defendant lacks the mentalstate required for commission of the crime and thus has a valid defense; and (2) that in which the defendant still

had whatever mental state is required for commission of the crime and only claims that he is unaware that suchconduct was proscribed by criminal law, which isnt usually recognized as a defense. Idea: A defendant cant avoidprosecution by simply claiming that he hasnt brushed up on the law.

Mistake of Governing Law Is no defense where governing law means the definition of the offense committed.On this principle, the defendant may be acquitted for ignorance that conditions specified in the definition were

present; but may not be acquitted merely because she didnt know that such conditions constituted definingelements of a proscribed offense.


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Hopkins v. State (Md. 1950) Upheld a conviction for violating the law making it unlawful to erect a sign aiding inthe solicitation of marriages, despite the fact that the attorney general told the defendant that it was OK. Idea:

Ignorance of the law ordinarily does not give immunity from punishment for a crime.

(D could have argued mistake of non-governing law: He didnt know that the AG couldnt make pronouncements oflaw.)

In considering the mistake defense, we must distinguish between:

(1) Where the D lacks the mental state required for commission of the crime and thus has a valid defense, and

(2) That in which the D still had whatever mental stated is needed for commission of the crime & only claims that

he was unaware that such conduct was proscribed by law not a recognized defense. (To allow an ignorance-of-the-criminal-law defense would allow it to be a shield for the guilty because it is hard to refute & would require far-

reaching inquiries).

Misdemeanor Less harmful offenses than felonies. Generally, anything punishable by less than 1 year in prison.HOMICIDE-Most states have not adopted the MPC definition of homicide.

-Law has developed through the common law.

MURDER MANSLAUGHTER(Homicide w/o Malice)

Intentional (1) Intentional Murder (p.363-79)

(MPC 210.2)

(3) Intentional (Voluntary)

Manslaughter (p. 380-402)

(MPC 210.3(1)(b))

Unintentional (2) Unintentional Murder

(Felony Murder Rule)

(MPC 210.2(1)(b))

(4) Unintentional (Involuntary)

Manslaughter

(MPC 210.3(1)(a))

210.4(1); 210.5

Summaries of the Case Law(1) Intentional Murder Malice aforethought required. Unjustified killing of a living human being manifesting: 1)Purpose to cause death; or 2) Intent to inflict serious bodily harm.

(2) Unintentional Murder (Felony Murder Rule is a subset of this) Extreme recklessness with respect to a seriousrisk of harm to anothers life where the risky action manifests so unworthy or immoral a purpose as to suggestcallous indifference to human life. Willingness to undertake even a very small risk of death where the risky conduct

is so unworthy as to establish guilt of a serious felony.

(3) Intentional (Voluntary) Manslaughter No malice. Intentional killing that is either committed in the heat ofpassion, caused by adequate provocation or is based on an honest but unreasonable mistake such as a wrong belief

that the killing was necessary for self-defense. (Or diminished capacity)

(4) Unintentional (Involuntary) Manslaughter Reckless manslaughter/negligent homicide. Homicide in whichthere is no intention to kill or do grievous bodily harm, but that is committed with criminal negligence or during

the commission of a crime not included within the felony-murder rule.

INTENTIONAL HOMICIDE


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A. Intentional Murder (Second Degree)Intent to kill establishes the malice aforethought necessary for murder. Need conduct & knowledge (that this isgoing to cause death) OR purpose (desire).

Note: Intention is subjective, unlike recklessness (objective standard)

MPC 210.2(1)(a) Both purposeful & knowing homicides are classified as murder (absent a justification orexcuse). The prosecution must establish that the D engaged in conduct with the conscious objective of causingdeath of another or at least with awareness that death was practically certain to result. (The state of mind may be

proved circumstantially See US v. Watsonbelow).

Transferred Intent A D is considered guilty. The intent to kill one person in transferred to the unintended killingof another person. If the defendant has completed the necessary actus reus, then the mens rea is transferred from

the intended target to the victim.

B. Premeditated Murder (First Degree)-Not just purpose & near-certainty (knowledge), but planning & desiring. The main factors to consider are thelength of time involved & whether the actors blood is hot or cold.

C. VOLUNTARY MANSLAUGHTERDiffers from involuntary manslaughter in that it is intentional: the D has with knowledge or purpose killed another

human rather than having done so with gross negligence or recklessness or merely with intent to commit anothercrime. The criminal law reduces the murder to voluntary manslaughter where there has been provocation thathas caused the D to act in the heat of passion.

Justifiable Act The act is completely OK & you are completely exonerated.Excusable Act The act may not be justifiable, but it is excusable. (morally bad, but understandable under thecircumstances)

Partial Justification Where you prove you didnt commit intentional murder, butmerely intentionalmanslaughter.

-It is unclear whether provocation is a partial justification or partial excuse. This makes it problematic toimplement.

Modern Provocation: Courts must find that a person:(a) Was provoked (subjective)

(b) Was provoked in a way that a reasonable man would be (objective)

-See MPC comments to 210.3

Views Regarding the Burden of Proving Provocation (vary by jurisdiction):1-If the defendant merely says he was provoked, it is up to the prosecution to show that he wasnt2-Some states have changed this to: The defendant must show provocation by a preponderance of the evidence.

People v. Walker (COA Ill. 1965)One man came at others with a knife. The others knocked him out with a brick. One man took his knife & stabbed

him. D contends that finding of murder should be dropped to voluntary manslaughter because he acted in hotblood. Court agreed & reduced crime.

Some reasons to reduce an unlawful intentional killing from murder to manslaughter:-Provocation

-In mistaken belief of self-defense-Where there was a real threat, but the D provoked the threat.


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MPC Commentaries to 210.3 re: provocation:

Provocation has 2 essential requirements:

1. Must be adequate (objective standard) it is if it would cause a reasonable person to lose self-control. Usuallythe provocation must arise from some action of the deceased. Physical attack usually suffices, mutual combat,

witnessing adultery, unlawful arrest. Words alone do not amount to adequate provocation.2. (Subjective) The D must have been provoked & have actually acted in response to the provocation.

Reasons for Mitigation:1. Partial Justification Where the provoked killer wrongly thinks he has a good reason to kill (e.g. excessivereaction to real threat), he deserves some punishment, but not as much as a unprovoked killer (retributivism).

2. Partial Excuse Where the actor is so enraged that his actions are slightly less voluntary. The killing is lessascribable to malevolent character (retributivism), and it is less deterrable (utilitarianism).

Views on Burden of Proof:

1. (Old Common Law) Once the D comes forth with evidence of provocation, the prosecution must disproveprovocation or heat of passion beyond a reasonable doubt. (This is the policy of the MPC).

2. (Most States) Require the D to prove EED (extreme emotional disturbance) as an affirmative defense, by thepreponderance of the evidence.

ADULTERYRowland v. State (Miss. 1904)Man killed wife while firing at the man she was committing adultery with. Reduced from murder to manslaughter.Price v. State (Tex. Ct. App. 1885) Positive proof of the crime of adultery is not required. It may be established bycircumstantial evidence. Where not witnessing it, but knowing it is happening, & in an overpowering passion kills

the wrongdoer, the offense is reduced to manslaughter.

Adultery in a Modern Context Generally allowed only where the killer discovers the spouse and lover in the act(or immediately before or after it), and kills immediately after the discovery.

COOOLING TIMEEx Parte Fraley (Okla. COA 1910) Man killed person who had allegedly killed his son 9 months before. This wasconsidered as too much time between the provocation & the killing. (Cites cases citing 4 hours and even 15minutes as being enough to cool down) Ordinarily one day, or even a half day, is in law much more than asufficient time for ones passion to cool. Court says that there is no excuse, let alone justification.State v. Gounagias (Wash. 1915) Rejected the idea of cumulative provocation based on anger. (Where people keptreminding him of the humiliation of his rape.) Such provocation is not sudden, uncontrollable anger. Rather it is

evidence of brooding thought.

-Provocation contains elements of both partial justification & partial excuse (e.g. hot blood = partial excuse, but no

partial justification).

Rule: Words alone cannot produce provocation.-But, this doesnt make sense from an honor code view (response to words may be justified) or they may put you

out of your head, which produces an excuse.

Exception Where the words give you information that if you had gotten in another way wouldve provoked (e.g. Ijust slept with your wife.)

Provocation We ask 2 questions:1. Would a reasonable person have been provoked?

2. Was the defendant actually provoked?

-Provocation may only be an excuse/justification if the act happens immediately (more or less). Cumulative effect

does not count as a provocation (see State v. Gounagias).


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Adultery Treated as a provocation. (Note: One TX case did not allow the defense of provocation where thewoman shot her husband. It only applied to men.

MPC 210.3 ManslaughterA criminal homicide constitutes manslaughter when a homicide which wouldotherwise be murder is committed under the influence of extreme mental or emotional disturbance for which

there is a reasonable explanation. The reasonableness of such explanation shall be determined from the viewpointof a person in the actors situation under the circumstances as he believes them to be.

MODEL PENAL CODE RE: HOMICIDE (MPC ARTICLE 210) 210.1 Criminal Homicide: (1) is when a person purposely, knowingly, recklessly or negligently causes the deathof another human. (2) Criminal homicide is murder, manslaughter or negligent homicide.

210.2 Murder: (Same as common law Intentional Murder)(1) Criminal homicide constitutes murder when:

(a) it is committed purposely or knowingly; or

(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.

This recklessness is presumed if the actor is engaged in or flight after an attempt to commit certain serious

offenses. (Same as common law Felony Murder Rule)

(2) Murder is a felony of the 1stdegree can bring sentence of death.

210.3 Manslaughter:(1)(a) it is committed recklessly (Same as common law unintentional or involuntary manslaughter); or(b) it would otherwise be murder but there is an extreme emotional disturbance (EED) for which there is areasonable explanation or excuse. The reasonableness is to be determined from the view of a person in the actorssituation under the circumstances as he believes them to be. (Same as common law intentional or voluntary manslaughter)

(2) Manslaughter is a felony of the 2nd degree.

210.4 Negligent Homicide(1) Criminal homicide constitutes negligent homicide when it is committed negligently(2) Negligent homicide is a felony of the 3rd degree.

Mayes v. People Logic of distinction between intentional & unintentional murder. This case dealt withunintentional murder. Man threw a glass at his wife who was holding an oil lamp. He had already been angry &

throwing things. Oil lamp burst & woman caught fire & died. He had a bad disposition (mens rea Abandoned &malignant heart Common Law A heart void of social duty.), but probably didnt intend to kill his wife. Notintentional murder because we cant tell he intended to kill.-Abandoned & malignant heart is a common formulation of the state of mind necessary to establish unintentionalmurder.

Self-Defense In some states provocation or an honest mistake that self-defense is needed is a completejustification. (e.g. case where a locked out husband breaks in window, wife thinks he is a rapist & shoots him.)

-Some states allow a partial defense where there is a wrong belief in the need for self-defense that is unreasonable(intentional murder is dropped to intentional manslaughter)

State v. WilliamsAmerican Indian family didnt take child to doctor for fear the child would be taken away. Therewas mens rea, not intent. It was either recklessness or negligence. This is unintentional manslaughter.

Felony Murder Rule: Falls under unintentional murder & not unintentional manslaughter because the defendanthas shown indifference to human life & malice.

Rationales: (1) The independent felony establishes that the defendant acted with the sort of mens rea that would

otherwise establish murder liability gross recklessness or wanton indifference. (2) A person who has proved


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himself a felon deserves to be held strictly liable. (3) It will deter prospective criminals from committing the felony

(4) Will induce those who will commit felonies to take pains to commit those felonies safely.

-Common felonies that include the rule are robbery, burglary, rape & auto theft.

Unintentional Manslaughter: Anything that caused death without intent or malignant heart & not in commission ofa felony. Manifests only recklessness or negligence.

CLASS FINAL WILL DEAL WITH COMMON LAW & MPC RE:HOMICIDE (KNOW HOW THEY ARE THE SAME &DIFFERENT)MPC 210.2(1)(a): Intentional MurderHow different from common law:

1. Terminology no mention of malice aforethought;2. Says nothing about premeditated murder doesnt distinguish between someone who plans & someone whodoesnt3. No mention of intent to inflict serious bodily harm these are not considered intentional murder by the MPC.

MPC 210.3(1)(b): Intentional Manslaughter-For acts under extreme emotional disturbance. Reasonableness standard for actor in circumstances as he believes

them to be.

-Different from common law as it does not have the objective person standard (only views it subjectively fromthe person as they saw the situation.)-Common law distinguishes between (1) provocation & (2) no provocation but there is a mistake (e.g. thinking it

was self-defense, which was intentional but not murder). MPC only considers (1) provocation where there isextreme emotional distress. MPC does not consider a self-defense mistake here.

MPC 210.2(1)(b): Unintentional Murder-includes common law felony-murder rule

-MPC adds word extreme to indifference to the value of human life-Common law distinguishes between extreme recklessness which is unintentional murder & recklessnesswhich is unintentional manslaughter. MPC eliminates the distinction between types of recklessness.

MPC 210.3(1)(a): Unintentional Manslaughter-Common law has reckless killing & negligent killing. MPC doesnt.

MPC 210.4(1): Negligent Homicide-Exactly the same as common law.

ATTEMPTWhy Punish Attempt?: Retributivist Theories

-Because the act manifests bad character

-If the D does all he can to cause harm, why should the failing of his plan absolve him?-But, there is worry that Ds will be punished w/o having doneanything wrong

Why Punish Attempt?: Utilitarian Theories-Because the attempters action, though harmless, proves that he is dangerous-Punishing attempters maximizes deterrence.

How the Criminal Law Resolves This:The criminal law tends to compromise by:

(a) Punishing attempts somewhat less than completed crimes(b) Preventing punishment for mere thought or bad character by stressing the need for some significant conduct

* * *US v. Morales-Tovar (WD Tex. 1999)


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D was charged with violating US statute making it illegal for a deported person to enter or attempt to enter the US

w/o permission. Trial court said that attempt under this statute was a specific intent crime. The COA said that it

was general intent.

THE ACTUS REUS OF ATTEMPTThe Main Common Law Actus Reus Tests Re: Attempts1. Proximity Test: When the conduct is close enough to completion (see below). At common law there was no clearline to determine adequate proximity.

2. Unequivocally Test: When the D has done something that indicates that he had a fully developed purpose tocommit the crime. (This includes a mens rea element as well.)

People v. Murray (Calif. 1859) (PREPARATION V. ATTEMPT)Re: Attempt to have an incestuous marriage.

Between preparation for the attempt and the attempt itself, there is a wide difference.

Prof. George Fletcher: The only reason we require offenders to act on their intentions is to make sure that theintention is firm and not merely fantasy. Subjectivists, however, reject the idea that an act is necessary. They wantto focus on the actors criminal intent.

Preparation/Attempt Boundary: Generally, the person who has engaged only in preparatory activity isntcriminally liable, while the person who has gone beyond the mere preparation may be charged with an attempt.But, how to draw the line.

-Mistake of fact re: a crime constitutes attempt (e.g. shooting mannequin that you thought was a person). Mistake

of law (legal impossibility) may not be an attempt.-At common law where the means are completely unreasonable to achieve the offense (attempting to kill with a toy

gun), there will be no prosecution.

COMMON LAW MENS REA RE: ATTEMPTAttempt liability requires that the defendant exhibit:1. Purpose with respect to any conduct elements of the crime, and

2. Purpose or possibly knowledge with respect to any result element, and3. Something less (recklessness or possibly negligence) re: the circumstances

-Once some harm is done the common law doesnt allow the defense of renunciation.

3 Types of Attempt at Common Law:1. When the person has almost fully completed the offense & is stopped at the last second (e.g. police come just as

he is about to shoot). At common law there was no clear line to determine adequate proximity.

2. Where there is a mistake (luck, chance: Defendant shoots at a mannequin, not a man). Mistake of fact re: a crime

constitutes attempt (e.g. shooting mannequin that you thought was a person). Mistake of law (legal impossibility)

may not be an attempt.3. Reasonability: Person wanting to commit an offense couldnt possibly cause harm. At common law where the

means are completely unreasonable to achieve the offense (attempting to kill with a toy gun), there will be noprosecution.

RE: Attempt RE: Completed Offense

Mistake of Fact Doesnt exonerate the D Exonerates the DMistake of Law Exonerates the D Doesnt exonerate the D

MODEL PENAL CODEModel Penal Code 5.01: Criminal Attempt:


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(1) Definition of Attempt: A person is guilty if, acting with the kind of culpability otherwise required for

commission of the crime, he:

(a) Purposely engages in conduct that would constitute the crime if the attendant circumstances were as he

believes them to be; or (this subsection addresses the mens rea required with respect to the conduct of the actor or

the attendant circumstances of the event)(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of

causing or with the belief that it will cause such a result; or (this section concerns the mens rea required for theresults of the action taken)

(c) Purposely does or omits to do something constituting a substantial step in a course of conduct planned to

culminate in his commission of the crime.

The MPC drafters rejected the following lines1. Physical Proximity Test Directly tending toward the completion of the crime.2. Dangerous Proximity Doctrine The greater the gravity & probability of the offense.3. Indispensible Element Test Emphasizes any indispensable aspect of the criminal endeavor over which theactor has not yet acquired control.

4. Probable Desistance Test If in the natural course of events, the conduct will result in the crime intended.5. Abnormal Step Approach If the conduct goes beyond the point where a normal citizen would think better of hisconduct & desist.

6. Unequivocally TestWhen the actors conduct manifests an intent to commit a crime.

-The drafters of the MPC ultimately agreed that what was needed (for actus reus) was:(1) Criminal Purpose

(2) An act that was a substantial stepin a course of conduct designed to accomplish a criminal result. To besubstantial such an act must strongly corroborate criminal purpose:

MPC 5.01(2):The following shall be strongly corroborative of the actors criminal purpose (Constituting aSubstantial Step)

(a) lying in wait

(b) enticing or seeking to entice the contemplated victimto go to the place contemplated for its commission(c) reconnoitering the place contemplated(d) unlawful entry of a structure

(e) possession of materials to be employed in the commission of the crime, that are specifically designed for suchunlawful use or which serve no lawful purpose

(f) possession, collection or fabrication of materials to be employed in the commission of the crime

(g) soliciting an innocent agent

Idea: We punish attempts because they not only manifest intent to do harm, but also because they erode the public

sense of security. (Thus, they are not inchoate)

GOOD WAY TO ANALYZE THE MPC & ATTEMPT:Step 1: Consider whether the conduct has been completed, thenStep 2: Consider whether youre dealing with a conduct offense or a result offense.MPC 5.01(1)(c): Applies to incomplete attempts

MPC 5.01(1)(a & b): Apply to complete offenses & the actor could have established the full rime

MPC 5.01(1)(a): Deals with conduct offenses

MPC 5.01(1)(b): Deals with result offenses (e.g. murder)

MPC 5.05(2) Mitigation: If the particular conduct charged to constitute a criminal attempt, solicitation orconspiracy is so inherently unlikely to resultin the commission of a crime that neither such conduct nor the actorpresents a public dangerthe court shall exercise its poser under 6.12 to enter judgment & impose sentence for acrime of lower grade or, in extreme cases, may dismiss the prosecution.

SOLICITATION


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People v. Lubow (COA NY 1971)Re: Solicitation of a credit scam

Basic definition of solicitation is thatw/intent that another person shall engage in conduct constituting crime, theaccused solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage insuch conduct.

MPC 5.02: Criminal Solicitation:(1) Definition: If w/the purpose of promoting or facilitating its commission he command, encourages or requests

another person to engage in specific conduct that would constitute such crime.

(2) Uncommunicated Solicitation: It is immaterial that the actor fails to communicate with the person he solicits to

commit a crime if his conduct was designed to effect such communication.

(3) Renunciation of Criminal Purpose: Is an affirmative defense if the person persuades the other person not to

commit the crime or otherwise prevents the commission of the crime under circumstances manifesting a

renunciation of his criminal purpose.

Solicitation v. Attempt: For purposes of grading, the MPC treats solicitation the same way as it treats attempt.

Soliciting a crime results in the same penalty as completing that particular crime, except that committing a felony

of the 1stdegree is punishable as a felony of the 2nd degree. (MPC 5.05(1))

-The MPC position is that the D can be punished for either the solicitation or the attempt, but not both. (MPC

5.05(3))

State v. Davis (Mo. 1928)Re: Plans to kill a womans husband for insurance $. The court found that D had solicited acrime, but did not cross the line from preparation to attempt.

IMPOSSIBILITYLegal Impossibility: Where the act completed would not be criminal. (Not a crime to attempt such things.)Examples:

-A person accepting goods which he believes to have been stolen, but which were not in fact stolen goods, is not

guilty of an attempt to receive stolen goods.-An accused who offers a bribe to a person believed to be a juror, but who is not a juror, is not guilty of an attempt

to bribe a juror.

Rationale: If none of the consequences which the D sought to achieve constitute a crime, surely his unsuccessful

efforts to achieve his object cannot constitute a criminal attempt.

Factual Impossibility; Where the basic or substantive crime is impossible of completion simply because of somephysical or factual condition unknown to the D. (Considered an attempt.) Examples:

-The picking of an empty pocket

-Where D shoots into the intended victims bed, believing he is there, when in fact he is elsewhere.

-A criticism of common law tests of impossibility is that their application depends on arbitrarily selecting oneamong many correctdescriptions of the Ds act.

US v. Sobriliski (8th Cir. 1997)Man arrested for selling fake drugs to an undercover officer. He appealed on the ground that it was an

unpunishable impossible attempt. He testified that he knew he didnt have real drugs. The court found otherwise &affirmed his conviction ruling that impossibility is no defense to a charge under of attempting to distribute a

controlled substance.

DEFENSESSELF-DEFENSE-Common Law: Self-Defense is considered a full justification, not an excuse.


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Justified Self-Defense (Common Law): When a victim uses reasonable force against an assailant when he reasonablybelieves:

(a) he is in immediate danger of unlawful bodily harm, and

(b) the use of such force is necessary to avoid the danger.

-Proportionality is necessary.

Problematic Issues:1. Immediacy: Critique: Why should it matter whether harm will occur immediately or in a little while?-A: If not immediate, person can find another way to cope with it

-But, may not have a later chance to defend self (E.g. battered woman, hostage)2. Necessity: Division between US & UK jurisprudenceUK Force is necessary only where the victim cant retreat (except for the home)US Doesnt always require the victim to retreat (& in the home, one can often use disproportionate force.)

Victim: A person who provoked a response cant use the defense of self-defense (because he is not a victim). Butdetermining who started it is tough.

Reasonable Amount of Force (Common Law): Objective standard based on the characteristics of that type of

person in that situation. But, subjectively, the person must have actually believed force was necessary.

People v. La Voie (Colo. 1964)When a person has reasonable grounds for believing, and actually believes, that danger of his being killed, or ofreceiving great bodily harm is imminent, he may act on such appearances & defend himself, even to the point of

taking life where necessary. This applies even if the appearances were false or mistake as to the extent of the realor actual danger.

-Defensive force justifications rely on the same balancing of evils that is the basis of the lesser evils defense.

-But self-defense is unique in that the actor makes the justification at a moment when he is in a difficult position.

So, courts are liberal w/excuse provisions.

Mistake: A mistaken belief that force was necessary will:(a) When the mistake is reasonable full defense of justified self-defense(b) When the mistake is unreasonable Partial excuse (reduced from murder to manslaughter)

Self Defense: is a defense to any violent crime, not just murder. But the partial excuse can only be used whencharged with murder.

Mistaken Self-Defense: Usually allowed if the belief is reasonable. But, in some jurisdictions it would be consideredan imperfect self-defense which reduced murder to manslaughter.-Can use the self-defense defense where she accidentally harms an innocent bystander in defending herself (unless

she is reckless or negligent).

MODEL PENAL CODEMPC 3.04 Use of Force in Self-Protection(1) Use of force is justifiable when the actor believes that such force is immediately necessary for the purposeofprotecting himself against the use of unlawful force by such other person on the present occasion.

(2) Limitations(A)The use of force is not justified

(i) to resist arrest by a police officer.(ii) to resist force used by the occupier of propertywhere the actor knows that the person using the force is doingso under a claim of right to protect the property.


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(B) Use of deadly force not justified unless the actor believes that such force is necessary to protect himself against

death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; not is it justifiable if:

(i) the actor provoked the use of force

(ii) the actor can retreat or surrender possession of a thing (dont have to retreat from home or work)

State v. Norman (NC 1988) Cannot slay your abusive husband when he is sleeping, because no harm is imminent.People v. Goetz (COA NY 1986) Man shoots youths who were mugging him. A person may use force to the extentthat he reasonably believes such to be necessary to defend himself or a 3rdperson from imminent use of unlawful

force by another. (Objective notion of reasonableness)

Common Law v. MPC1. In the MPC there is no requirement that a belief that such force is necessary be reasonable. (MPC uses asubjective standard; Common Law is objective). This is considered scary as it may warrant killing by theconfused. But 3.09(2)&(3) (see below) limit the right where the defendant is reckless.

2. MPC uses the UK rule re: retreat. Must retreat rather than use deadly force (except at home & work).3. MPCs immediately necessary replaces the common laws immediate danger & necessary force. This mayallow a person who is not in immediate danger to act. Rather it allows self-defense where the ability to use self-

defense is suddenly present, but may not be later (e.g. battered wife killing sleeping husband; kidnapped person

suddenly having access to a gun).

MPC 3.09(2): When a person is charged with a negligence offense & wants to argue self-defense & he is mistakenre: the need for self-defense, then his mistake must be reasonable. An unreasonable mistake will not provide a

defense. This means that if his mistake was negligent he can still be found guilty of an offense that requiresnegligence. Same with recklessness. But, for purposely or knowingly crimes any belief will do.

Definitions for Criminal Law

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