QUIMBEE CRIMINAL LAW QUICK STUDY

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CRIMINAL LAW: This outline addresses the substantive criminal law, including the definitions of crimes and defenses. The procedural aspects of criminal justice are addressed in your Criminal Procedure Quick Study.

GENERAL PRINCIPLES: Certain general principles underpin all of criminal law. I. Sources of criminal law:

A. Federal law: The federal government may only enact criminal laws related to specific constitutional grants of federal authority. Federal crimes may be defined by the Constitution (e.g., treason), federal statutes, or federal agency regulations. There are no federal common-law crimes.

B. State law: The states can pass criminal laws under their inherent police power, which is their authority to pass laws to promote the health, safety, and welfare of their citizens. Early American law incorporated the common law of crime. Most criminal law today is statutory. The Model Penal Code (MPC) has significantly influenced modern state codes.

II. Constitutional principles: There are several constitutional limitations on substantive criminal law.A. Due process: The government may not: (1)

deprive any person of life, liberty, or property without due process of law, nor (2) enact criminal laws so vague that they do not provide adequate notice of what conduct is prohibited.

B. Rule of lenity: The government must resolve an ambiguity in a criminal statute in a defendant’s favor.

C. Proportional punishment: The government may not impose: (1) cruel and unusual punishment, (2) excessive bail, or (3) excessive fines.

D. Ex post facto laws: The government may not enact a law that retroactively (1) criminalizes conduct or (2) increases the punishment for a prior crime.

E. Bills of attainder: The government may not enact a law that declares an individual guilty or imposes punishment without a trial.

III.Types of offenses: The general types of criminal offenses are: (1) felonies, (2) misdemeanors, and (3) violations.

A. Felony: A felony can be punishable by: (1) a fine, (2) imprisonment for more than one year, or (3) death.

B. Misdemeanor: A misdemeanor can be punishable by: (1) a fine or (2) imprisonment for up to one year. Less serious misdemeanors are often called petty misdemeanors.

C. Violation: A violation is a non-criminal (i.e., civil) offense that is punishable only by a fine.

IV. Elements of a crime: Every crime requires a few basic elements: (1) actus reus, (2) mens rea, (3) concurrence of act and intent, and (4) (if the crime requires a particular result) causation. A. Actus reus: A defendant must voluntarily: (1)

commit an act or (2) fail to act when a legal duty to act exists.1. Voluntary act: A voluntary act is a bodily

movement that the defendant controls. a. Possession: Possession is a voluntary

act if the defendant is aware of the possession for long enough to terminate the possession.

2. Omission: A person might be legally obligated to act because of a: (1) a statute, (2) a special relationship with another (e.g., parent-child), (3) a contractual duty, (4) a voluntary undertaking to assist a person in peril, (5) the defendant’s placing others in peril, or (6) landowner status.a. Defendant must be capable: There is

no liability for an omission if the defendant is physically incapable of acting.

B. Mens rea: A defendant must have the requisite mental state, or criminal intent, to be guilty of a crime. Different crimes require different levels of intent.1. General and specific intent: Crimes are

sometimes classified as (1) general intent crimes and (2) specific intent crimes.a. General intent: The defendant intends

to perform the prohibited act, but does not intend a particular result. Example: Battery can be defined as intentionally touching another and causing physical injury. The general intent to touch is necessary; specific intent to injure is not.

b. Specific intent: The defendant intends to perform the prohibited act, and does so with a particular purpose, or with the

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desire to cause a particular result. Example: Burglary is defined as breaking and entering a building with intent to commit a theft inside. The crime requires both the general intent to break and enter, and the specific intent (or purpose) to commit a theft inside the building.

2. MPC mental states (MPC § 2.02): Modern statutes often define the required mental states. The MPC defines four: (1) purposely, (2) knowingly, (3) recklessly, and (4) negligently.a. Purposely: The defendant’s conscious

object is to engage in the prohibited conduct, or cause the prohibited result. If the crime requires certain circumstances, then the defendant knows, believes, or hopes that those circumstances exist.

b. Knowingly: The defendant is subjectively aware that (1) the act is of a specific nature, (2) certain circumstances exist, or (3) it is practically certain that his conduct will cause the prohibited result.i. Deliberate ignorance: Deliberate

ignorance or avoidance of a fact may be treated as knowledge.

c. Recklessly: The defendant consciously disregards a substantial and unjustifiable risk that an element of the crime exists, or will result from his conduct. The disregard of the risk must be a gross deviation from the standard of conduct that a law-abiding citizen would observe in like circumstances.

d. Negligently: The defendant should be aware of a substantial and unjustifiable risk that an element of the crime exists, or will result from his conduct. The failure to perceive the risk must be a gross deviation from the standard of care that a reasonable person would observe in like circumstances. Note: this standard is often equated to criminal negligence, or gross negligence. Negligence in criminal law is usually a higher degree of culpability than simple negligence in tort law.

3. Strict liability: Strict liability imposes criminal liability with no proof of fault. Strict liability may extend to all elements of a crime, or only to certain elements of a crime.

4. Transferred intent: A defendant who intends to commit a crime against one victim, but accidentally commits that crime against a different victim, will be held liable for the crime committed against the actual victim. Example: X shoots at Y with intent to kill, but misses and accidentally kills Z instead. X is liable for the intentional killing of Z. Intent can transfer from one victim to another. Intent cannot transfer from one crime to a completely different crime.

C. Concurrence: The defendant must have the necessary mens rea at the same time that he commits the criminal act.

D. Mistake: The law distinguishes between a mistake of fact and a mistake of law.1. Mistake of fact: A mistake of fact is a

defense if it negates the mens rea required for the crime. Some jurisdictions require that the mistake be reasonable.a. Liability for alternate crime: The

MPC provides that a defendant whose mistake negates the mens rea for one crime can nonetheless be guilty of a different crime, if the defendant’s conduct would have been a crime had the facts been as the defendant supposed.

2. Mistake of law: It is generally not a defense that the defendant mistakenly believed that his conduct was not a crime.a. Exceptions: Mistake of law can be a

defense if (1) the defendant reasonably relies on a statute or court decision that is later overturned, (2) the defendant reasonably relies on an interpretation of the law by a responsible government official, or (3) the law is not generally published or otherwise reasonably available to the defendant. Reliance on a private attorney’s advice is not a defense.

E. Causation: If the crime requires a particular result, then the defendant must actually and proximately cause the prohibited result.

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1. Actual cause (cause-in-fact): An act is an actual cause of a result if the result would not have occurred but for the act.a. Concurrent causes: Concurrent causes

exist when multiple forces combine to cause a result, but no one of those forces alone would have caused the result. If the defendant’s act is one of the forces, then the defendant’s act is deemed an actual cause.

b. Substantial factor: This test is used when multiple forces combine to cause a result, and each force alone was sufficient to cause the result, but it is impossible to tell which force caused what part of the result. If the defendant’s act is one of the forces, then the defendant’s act is deemed an actual cause, as long as it was a substantial factor in the result.

c. Hastening death: An actor who hastens a victim’s impending death is usually held responsible for causing the death.

2. Proximate cause: The result must be the natural and probable consequence of the defendant’s act, free of superseding causes or events.a. Victim’s preexisting condition: A

victim’s preexisting condition that exacerbates the harm caused by the defendant does not break the causal chain. The defendant is liable to the full extent of the resulting harm, regardless of whether the defendant knew of the condition.

b. Intervening and superseding causes: An unforeseeable intervening cause can break the causal chain between the defendant’s conduct and the result. A foreseeable intervening cause will not break the chain.i. Negligent medical treatment:

Negligent medical treatment of a victim is considered foreseeable, and does not break the causal chain.

ii. Refusal of medical treatment: A victim’s refusal of medical treatment is considered foreseeable, and does not break the causal chain.

iii. Responses to defendant’s actions: The foreseeable responses of the victim, or of third parties, to the defendant’s actions will not break the causal chain.

F. Responsibility—Insanity: A person who was legally insane at the time of the prohibited act is not criminally liable.1. Procedure: Every defendant is presumed

to be sane. Thus, insanity is an affirmative defense, and the burden of proving insanity is on the defendant. A defendant who is found insane is sent for treatment until she is no longer dangerous.

2. Competency to stand trial: Competency is a separate issue from insanity, and refers to the defendant’s mental capacity at the time of trial. A defendant is incompetent if he is (1) unable to appreciate and understand the charges and proceedings, and (2) unable to assist his attorney in his own defense. An incompetent defendant is institutionalized until he is competent. If the defendant is unlikely ever to be competent, then the state must follow civil commitment proceedings or release the defendant.

3. Definitions of insanity:a. M’Naghten rule: M’Naghten is the

majority rule. A defendant is not guilty by reason of insanity if, as a result of mental disease or defect, (1) she did not know the nature or quality of the act, or (2) she did not know that the act was wrong.i. Mental disease or defect: Most

clinically recognized forms of mental illness and cognitive disabilities are included. Intoxication and withdrawal symptoms are not.

ii. Knowledge: This term usually connotes both sensory perception and an understanding of the context, consequences, or significance of the act.

iii. Nature and quality of the act: This includes an understanding of the causal effects of the act, e.g., wounding or killing.

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iv. Knowing that act was wrong: This can refer to knowledge that the act was morally wrong, or knowledge that the act was legally wrong.

v. Irresistible impulses: M’Naghten does not take into account a defendant’s irresistible impulse to commit the act. Historically, this led to the development of a separate irresistible impulse test.

b. Irresistible impulse test: The defendant is not guilty by reason of insanity if, as a result of a mental disease or defect, the defendant acted under the compulsion of an irresistible impulse. This is sometimes used in conjunction with M’Naghten.

c. Durham rule (New Hampshire only): The defendant is not guilty by reason of insanity if the defendant would not have committed the crime but for a mental disease or defect.

d. MPC test (MPC § 4.01): The defendant is not guilty by reason of insanity if, as a result of mental disease or defect, the defendant lacked the substantial capacity either (1) to appreciate the criminality (or wrongfulness) of the act, or (2) to conform his conduct to the law. This test essentially combines and refines the M’Naghten and irresistible impulse tests.

e. The federal rule: Federal law has effectively codified M’Naghten.

G. Responsibility—diminished capacity: A diminished capacity defense asserts that the defendant was unable to form the necessary mens rea for the crime because of some mental disorder or condition. A minority of jurisdictions recognize this defense.1. Distinguished from insanity: Diminished

capacity presumes that the defendant was sane at the time of the crime. Unlike insanity, it is not a complete defense, but usually reduces the severity of the charges based on mens rea. The defense usually applies only to specific intent crimes.

H. Responsibility—intoxication: The law distinguishes between voluntary intoxication and involuntary intoxication.

1. Voluntary intoxication: Voluntary intoxication occurs when the defendant deliberately ingests a substance that he knows or should know to be intoxicating. a. When allowed: Some jurisdictions, and

the MPC, allow voluntary intoxication as a defense to any crime if it negates mens rea. Other jurisdictions allow the defense only for specific intent crimes, if intoxication negates specific intent. A few jurisdictions do not allow the defense for any crimes.

b. Limitations: Voluntary intoxication is generally not allowed as a defense (1) if the crime involves recklessness, (2) if the defendant voluntarily became intoxicated in order to commit the crime, or (3) if voluntary intoxication is an element of the crime (e.g., drunk driving).

2. Involuntary intoxication: Involuntary intoxication occurs if: (1) the defendant was tricked or coerced into ingesting the intoxicant; (2) the defendant ingested the intoxicant by mistake; (3) the intoxicant’s effect on the defendant was extremely unusual, because the defendant did not know that she was peculiarly susceptible to it; or (4) the intoxicant is a prescribed medication, and the defendant took it without knowledge of its side effects.

3. Involuntary intoxication as a defense: Involuntary intoxication is generally a defense if it induces the same mental state required for an insanity defense.

JUSTIFICATION DEFENSES: A justification defense asserts that the defendant committed the criminal act for reasons that society condones. Justification defenses include necessity, self-defense, defense of others, defense of property, law enforcement defenses, rightful-authority defenses, and public duty.I. Necessity: (1) The defendant commits the crime to

avoid imminent and substantial harm; (2) there is no reasonable alternative course of action; and (3) the harm caused by the crime is less than the harm avoided by committing it. A. Exceptions: Necessity is not a defense (1) to

homicide, or (2) if the defendant intentionally, recklessly, or negligently brought about the

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situation that required committing the crime, depending on the level of culpability required for the crime.

II. Self-defense: A defendant may use (1) only that degree of force which the defendant actually and reasonably believes to be necessary (2) to protect herself (3) against the imminent use of unlawful force by another. A. Reasonable belief: Most jurisdictions require a

reasonable belief in the need for defensive force. A minority of jurisdictions allow the defense even for unreasonable belief. Note: a defendant’s belief might be reasonable even if it is incorrect.1. Imperfect self-defense: Some jurisdictions

treat an unreasonable belief as imperfect self-defense, which may reduce the charge or the sentence. Imperfect self-defense usually applies only to homicide cases.

B. Imminent force: Force is imminent if it is actually occurring, or is about to occur without delay. A belief that unlawful force will be used at some non-immediate, future time is not sufficient to justify defensive force.

C. Proportionate force: The defendant must only use the amount of force that is necessary to prevent another’s use of force. Thus, a defendant may not use deadly force to protect against non-deadly force. A defendant who uses excessive force in self-defense may be deemed to be the aggressor.

D. Deadly force: A defendant may use deadly force only if the defendant actually and reasonably believes that such force is necessary to prevent (1) imminent death or serious bodily injury, or (2) (in some jurisdictions) certain especially dangerous felonies (e.g., kidnapping, rape, or robbery).

E. Duty to retreat: A defendant is not required to retreat before using non-deadly force, even if the defendant could retreat safely. 1. Deadly force: Most jurisdictions do not

require a defendant to retreat before using deadly force in self-defense, even if the defendant can retreat safely, so long as the defendant was not the initial aggressor.a. Minority rule: A minority of

jurisdictions require a defendant to retreat before using deadly force, unless (1) doing so is unreasonably dangerous,

or (2) the defendant is at home (the castle doctrine).

F. Initial aggressor: Self-defense is not available to the initial aggressor, unless: (1) the other party uses an unreasonable degree of force in defense (e.g., meeting non-deadly force with deadly force), or (2) the initial aggressor (A) withdraws from the confrontation and (B) provides the other party with reasonable notice to that effect.

III.Defense of others: A defendant may use (1) only that degree of force which the defendant actually and reasonably believes to be necessary (2) to protect another person (3) against the imminent use of unlawful force. A. Mistake: A defendant might be mistaken in

assessing the need to defend another.1. Alter ego rule: A minority of jurisdictions

hold that a defendant has the same right to defend another that the other person has to defend herself. Thus, if the defendant is mistaken about the need for defensive force, the defendant may not claim the defense.

2. Majority rule: The majority rule allows the defense, even if the defendant is mistaken about the need for force, so long as the defendant’s mistake was reasonable.

IV. Defense of property: The defendant may generally employ (1) non-deadly force that is reasonably necessary (2) to prevent unlawful interference with real or personal property then in the defendant’s possession. A. Verbal warning: The use of force to defend

property is not reasonable if a verbal warning would suffice.

B. Recapture of personal property: A defendant may use reasonable, non-deadly force to recapture or retake personal property immediately after an unlawful taking, during hot pursuit. Once the pursuit is over, or the taking is completed, the defendant may not use force to retake the property.

C. Reentry on land: A defendant may use non-deadly force to reenter the defendant’s own land: (1) immediately after unlawful interference or dispossession by another, or (2) (under the MPC), if significant time has lapsed since the interference, only if necessary to avoid any exceptional hardship that would

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otherwise result from awaiting a court order to evict the trespasser.

D. Deadly force: A defendant may not use deadly force to defend or retake property, unless: (1) the interference with property is accompanied by a threat of imminent deadly force against a person; or (2) the defendant is protecting her habitation.1. Deadly devices: A person may not protect

property by using a deadly mechanical device, such as a spring gun or other deadly trap. Some jurisdictions recognize an exception if the owner would have been justified in using deadly force had the owner been present at the time.

E. Defense of habitation: Most jurisdictions permit the use of deadly force to protect the defendant’s habitation, if the defendant reasonably believes that someone is entering the habitation with the intent to commit a felony, or with the intent to cause bodily harm. A habitation may include any place that the defendant is then occupying, such as a motel room. 1. Duty to retreat: There is no duty to retreat

before justifiably defending one’s habitation. However, the defendant may not lie in wait outside the dwelling to ambush a would-be attacker.

V. Law enforcement: Defenses related to law enforcement, or crime prevention, may justify the use of force. A. Preventing crime: A law enforcement officer

or a private citizen may use reasonable, non-deadly force to prevent a crime if the actor reasonably believes that someone is committing, or about to commit, a felony or a misdemeanor breach of the peace. Deadly force may only be used to prevent a felony that involves a significant risk of death or serious bodily injury.

B. Arrest and escape: Arrests by police officers are subject to the Fourth Amendment requirement that the use of force be reasonable. Thus, an officer may use no more force than is reasonably necessary to make the arrest.1. Police officer with warrant: A police

officer may arrest someone pursuant to a valid warrant.

2. Police officer without warrant: At common law, a police officer may make a

warrantless arrest (1) if the officer reasonably believes that the arrestee has committed a felony outside the officer’s presence, or (2) if the arrestee has committed, or is about to commit, either a felony or a misdemeanor breach of the peace in the officer’s presence. Many jurisdictions also allow warrantless arrests for any misdemeanor, regardless of whether it was committed in the officer’s presence.

3. Deadly force by police officer: An officer may use deadly force to make an arrest or prevent an escape only if: (1) the officer reasonably believes deadly force is necessary, (2) the officer has probable cause to believe that the suspect poses a significant threat of death or serious bodily injury to the officer or others, and (3) the officer gives the suspect some warning, if feasible, before using deadly force.

4. Private citizen: A private citizen may use reasonable, non-deadly force to arrest someone if (1) the person arrested has actually committed a felony outside the citizen’s presence, and the citizen reasonably believes that the arrestee is the perpetrator; or (2) the person arrested has committed either a felony or a misdemeanor breach of the peace in the citizen’s presence. a. Deadly force: A citizen may use deadly

force to make an arrest in the same circumstances as a police officer. However, the citizen is only justified if the person against whom force is used is actually the perpetrator of the underlying crime.

b. Mistake not permitted: Unlike a police officer, a citizen is not justified in making a reasonable mistake as to the identity of the person arrested.

5. Citizen assisting at officer’s direction: A citizen who assists a police officer in making an arrest, at the police officer’s direction, is justified in using force to the same extent as the officer would be if the arrest were lawful. A citizen who assists the officer in good faith will be justified even if the officer’s behavior is later deemed to have been unlawful.

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VI. Parental and supervisory authority: A parent, stepparent, or guardian may use reasonable force toward a minor child in the course of disciplining, restraining, or caring for the child. Such force must not be intended or likely to cause bodily injury, excessive pain, or unusual mental distress. A. Other authorities: A schoolteacher may use

reasonable force toward a child to maintain discipline and facilitate the child’s education. Some jurisdictions, and the MPC, recognize other authorities who may use reasonable force toward persons in their care or custody. These authorities include doctors, guardians of incompetent persons, correctional officers, and common carriers.

VII. Public duty: A public official may use reasonable force toward persons or property when taking some official action that is authorized by a court order, a statute, or some other source of law. Some jurisdictions provide a defense only if the official reasonably believes that the action is lawful, while others provide a defense so long as the official actually believes that the action is lawful.

EXCUSE DEFENSES: Under an excuse defense, the defendant argues that he should not be held criminally responsible because of some special circumstance. Excuse defenses include duress, entrapment, consent, and automatism.I. Duress: Duress is a defense if the defendant acts

(1) under threat of imminent death or serious bodily harm (2) to himself or another, and (3) the defendant reasonably believes that the harm will occur if the defendant does not perform the act. A. No reasonable alternative: A defendant may

only claim duress if the defendant did not have any reasonable alternative to performing the criminal act.

B. Threats to property: Threats to property are usually not sufficient for duress. However, some jurisdictions allow the defense when property is threatened, as long as the harm avoided is greater than the harm caused.

C. Defendant’s fault: The defense is not available to a defendant who recklessly (or, in some jurisdictions, negligently) placed himself in a situation where he was likely to experience duress.

D. Intentional homicide: Duress is generally not allowed as a defense to intentional or attempted homicide. A few jurisdictions allow duress to

reduce what would otherwise be murder to the lesser crime of voluntary manslaughter.

II. Entrapment: Both the common law and the MPC recognize entrapment as a defense when the government induces the defendant to commit a crime. There are two principal tests for entrapment.A. Predisposition test (subjective): The majority

rule finds entrapment if the police induce a person to commit a crime, when that person was not predisposed to do so.

B. Police conduct rule (objective): The police conduct rule finds entrapment when the police use methods that create a substantial risk that the crime will be committed even by persons other than those who are ready to do so. This is substantially the approach of the MPC.

C. Limitations: (1) The entrapment defense is normally limited to non-violent crimes. (2) The defense does not apply to inducement by private parties who are unconnected with the government. However, some courts will recognize derivative entrapment if the defendant was induced by a private citizen who in turn was induced by a government actor.

III.Consent: Consent is a defense if either (1) lack of consent is an element of the crime (e.g., rape), or (2) the victim’s consent negates an element of the offense.A. Consent to bodily harm: Some jurisdictions

allow a consent defense to crimes involving bodily harm, but only if the harm to which the victim consented was not serious, or (in some cases) if the defendant consented to medical treatment. Consent to bodily harm may also be recognized when the victim voluntarily participates in a generally accepted and lawful athletic contest, and the harm sustained was a reasonably foreseeable hazard of the victim’s participation.

B. Defendant’s perception counts: The consent provided may not need to be genuine, so long as the defendant reasonably believes, in light of the victim’s behavior and the surrounding circumstances, that the consent is genuine.

C. Limitations: Consent is not effective if: (1) the consenter is legally incompetent; (2) the consenter cannot make a reasoned judgment on the matter because of mental disease or defect, intoxication, or similar factors; (3) consent is induced by force, duress, or deception; or (4)

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the law will not permit the consenter to give effective consent (e.g., statutory rape).

IV. Automatism: Involuntary conduct, or automatism, is a defense to a crime. A person who has acted unconsciously has not committed a voluntary act; thus, there is no actus reus. The courts have recognized automatism resulting from sleepwalking, hypnosis, epilepsy, and brain injuries.

JURISDICTION: Jurisdiction is the power to make and to enforce criminal laws. I. State jurisdiction:

A. Subjects of state jurisdiction: The state governments have a general police power, which is a broad power to provide for the general welfare of the state and those who live there.

B. The reach of state jurisdiction:1. Crimes committed within the state—the

situs rule: At common law, a state has jurisdiction over crimes committed within that state. If a crime is defined by particular conduct, then a state has jurisdiction when the conduct occurs in that state. If a crime is defined by a particular result, then a state has jurisdiction when the result occurs in that state. The state having jurisdiction is sometimes called the situs of the crime.

2. Statutory expansions of jurisdiction: Many states have passed statutes that expand their common-law jurisdiction. a. Attempt, solicitation or conspiracy

within the state: A state can have jurisdiction over conduct inside the state that amounts to an attempt, solicitation, or conspiracy to commit a crime in another jurisdiction. The target crime must be an offense in both jurisdictions.

b. Elements of crime occurring within the state: A state can have jurisdiction if an element of the crime occurs within the state, even when the crime is completed elsewhere.

c. Attempt, solicitation or conspiracy outside the state: A state can have jurisdiction over conduct outside the state that amounts to an attempt, solicitation, or conspiracy to commit a crime within the state. In a conspiracy

case, many states also require some overt act within the state.

d. Omissions: A state may have jurisdiction when the crime is based on an omission; that is, a failure to do something that the state requires. Such jurisdiction can exist no matter where the omission occurs.

II. Federal jurisdiction:A. Subjects of federal jurisdiction: The federal

government has no general police power outside the United States Territories and the District of Columbia. Instead, federal jurisdiction must be based on identifiable grants of power under the U.S. Constitution. Examples include the power to regulate interstate commerce and the power to coin money.

B. The reach of federal jurisdiction:1. Crimes committed within the United

States: The federal government has jurisdiction over crimes committed anywhere within the United States, so long as the federal government has the power to regulate the underlying conduct. a. Concurrent jurisdiction: The federal

and state governments can exercise concurrent jurisdiction over certain crimes if the same conduct violates both a federal law and a state law. A defendant may be tried and punished for violating both laws without implicating the Double Jeopardy Clause of the Fifth Amendment. [See U.S. Const. amend. V.]

2. Federal enclaves: The federal government has jurisdiction over federally owned land and facilities, such as post offices, military bases, and federal prisons. The federal government has general police powers in the Territories and the District of Columbia.

3. Admiralty and maritime: Federal jurisdiction extends to (1) American-flagged ships and aircraft, wherever they may be, and (2) vessels of any nationality in American territorial seas, i.e., within 12 nautical miles from the shore.

4. U.S. citizens abroad: Federal jurisdiction extends to the activities of U.S. nationals in foreign countries.

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5. Foreign nationals abroad—national security: The federal government can have jurisdiction over the acts of foreign nationals, outside the United States, if those acts threaten U.S. national security.

HOMICIDE: Homicide includes: (1) common-law murder, (2) common-law manslaughter, (3) statutory degrees of murder, and (4) MPC homicide. Felony murder is also included in this section.I. Common law murder: Common-law murder is

(1) the unlawful killing of (2) another human being (3) with malice aforethought. A. Malice aforethought: Malice aforethought

requires: (1) intent to kill, (2) intent to cause serious bodily harm, (3) reckless indifference to the value of human life (depraved heart), or (4) imputed mens rea, when a death results from the commission of a felony (the felony murder rule). Malice aforethought does not require hatred or ill will, nor does it require premeditation.

B. Actus reus—a human being: At common law, a person was a “human being” from the moment of birth, and the killing of an unborn child was not homicide. Many states now criminalize the unlawful killing of a fetus, either as part of their homicide statutes or by creating separate statutory crimes for fetal killings.

C. Actus reus—death: Historically, death occurred when a person’s heart stopped beating. Most jurisdictions now also recognize cessation of brain activity as a form of death.

D. Causation: Some jurisdictions provide that the death must occur within a year and a day of the act, or else the defendant will not be liable for murder.

II. Statutory degrees of homicide: Statutes often classify murder as first-degree murder or second-degree murder.A. First-degree murder: First-degree murder is

(1) murder committed with (A) malice aforethought and (B) premeditation and deliberation; (2) murder committed by enumerated means, such as torture or chemical weapons; or (3) (in many jurisdictions) any felony murder.1. Premeditation: The law does not specify

any particular length of time for premeditation. Premeditation generally

requires some appreciable period of reflection and thought before the killing.

B. Second-degree murder: Second-degree murder is the killing of another human being with malice aforethought; i.e., any murder that is not first-degree murder.

III.Felony murder: A felony murder is a killing that occurs during the commission of, or flight from, a felony. A. Underlying felonies: Most jurisdictions limit

felony murder to (1) inherently dangerous felonies, such as kidnapping, robbery, rape, arson, or burglary. Other jurisdictions apply the rule to (2) any felony, or to (3) any felony committed in an inherently dangerous manner.

B. Foreseeability: Most jurisdictions require that the death be a foreseeable consequence of the underlying felony, but courts tend to construe foreseeability broadly. A few jurisdictions do not require foreseeability.

C. In-furtherance test: Most jurisdictions require that the death occur either during the course of the underlying felony, in furtherance of the felony, or while the felon is fleeing the scene after completing the felony. The felony murder rule does not apply if the death occurs after a fleeing felon reaches a place of temporary safety.

D. Accomplice liability: A defendant and a co-felon may both be charged with felony murder, even if only one of them actually committed the killing, and even if one was unaware of the other’s actions.

E. Death of a co-felon: In most jurisdictions, a defendant is not liable for felony murder if a co-felon is killed by a victim, a bystander, or a police officer.

F. Deaths caused by third parties: There are two approaches to liability when a death is caused by someone other than the defendant or a co-felon. Example: A bystander is accidentally killed by a security guard.1. The agency theory: A felon is liable only

for deaths caused by the felon or by someone acting as the felon’s agent, such as an accomplice.

2. The proximate cause theory: A felon is liable for any death in the course of a felony, no matter who caused the death.

IV. Common-law manslaughter: Common-law manslaughter can be voluntary or involuntary.

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A. Voluntary manslaughter: Voluntary manslaughter is (1) the intentional killing of another human being, (2) in the heat of a sudden, intense emotional state, caused by (3) an adequate provocation, if the killing occurs (4) before a reasonable cooling-off period has elapsed. Voluntary manslaughter is sometimes invoked by a defendant to reduce what would otherwise be murder to the lesser charge of voluntary manslaughter.1. Adequate provocation: The provocation

must be such that a reasonable person would be provoked to act similarly under the circumstances (e.g., finding a spouse in the act of adultery). A defendant’s special sensitivities are not considered. Mere words are not adequate provocation.

2. Actual provocation: The defendant must actually be provoked.

3. Cooling off: Cooling off is the subsiding of the sudden and intense passion. A killing is not voluntary manslaughter if it occurs either (1) after a reasonable person would have cooled off, or (2) after the defendant has actually cooled off. There is no legally standard cooling-off period; cooling-off is usually a jury question.a. Minority view: A few jurisdictions ask

only whether the defendant has actually cooled off, and do not apply a reasonableness standard.

4. Other grounds for voluntary manslaughter: Some jurisdictions apply voluntary manslaughter in cases of imperfect self-defense, where the defendant kills another in the honest, but mistaken, belief that the use of deadly force is justified. A few jurisdictions also recognize voluntary manslaughter when the defendant kills under duress.

B. Involuntary manslaughter: Involuntary manslaughter is divided into (1) criminal-negligence manslaughter and (2) unlawful-act manslaughter. 1. Criminal-negligence manslaughter: An

unintentional killing resulting from the defendant’s creation of (1) an unreasonable and high risk of (2) death or serious bodily injury. In some jurisdictions, the defendant must (3) know of the risk and (4) consciously disregard it. This crime usually

requires greater culpability than civil negligence.a. Negligent homicide distinguished:

Some jurisdictions distinguish involuntary manslaughter from negligent homicide. In those jurisdictions, involuntary manslaughter occurs when the defendant consciously disregards a known risk. Negligent homicide occurs when the defendant fails to perceive an unreasonable risk of death or injury.

2. Unlawful-act manslaughter: Unlawful-act manslaughter is a killing that results from (1) a misdemeanor, (2) a felony that is not serious enough to trigger the felony-murder rule, or (3) a civil wrong, such as a tort.

3. Foreseeability: The death must be a reasonably foreseeable consequence of the unlawful act.

V. MPC homicide (MPC § 210.1): Criminal homicide under the MPC is the purposeful, knowing, reckless, or negligent killing of another human being.A. Murder: Murder is the killing of another

human being: (1) purposely, (2) knowingly, or (3) recklessly and with extreme indifference to the value of human life.1. Felony murder: The MPC does not use the

term “felony murder.” However, the MPC presumes that the defendant is sufficiently reckless for murder if the death occurs in the course of committing, attempting, or fleeing after robbery, rape, forcible deviant sexual intercourse, arson, burglary, kidnapping, or felonious escape.

B. Manslaughter: Manslaughter is the killing of another human being (1) recklessly (but without an extreme indifference to the value of human life), or (2) under the influence of an extreme mental or emotional disturbance for which there is a reasonable explanation or excuse (compare voluntary manslaughter, supra). The MPC evaluates reasonableness from the defendant’s subjective point of view, unlike the majority approach to voluntary manslaughter.

C. Negligent homicide: Negligent homicide is the killing of another human being caused by (1) a failure to perceive a substantial and

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unjustifiable risk of death (2) in a gross deviation from a standard of reasonable care.

PROPERTY CRIMES: Property crimes include: (1) larceny, (2) robbery, (3) extortion, (4) embezzlement, (5) receiving stolen property, (6) false pretenses, (7) forgery, and (8) burglary. I. Larceny: Larceny is the (1) trespassory (2) taking

and (3) carrying away of (4) the personal property (5) of another, (6) with intent to deprive the owner permanently of the property.A. Trespassory taking: A taking is the

defendant’s exercise of dominion and control over the property. A trespassory taking is a taking without privilege or consent. A trespassory taking violates another’s superior right of possession.1. Possession v. ownership: Someone can

rightfully possess property without owning it, e.g., as a bailee. Thus, larceny can include a taking from someone other than the actual owner of the property.

2. Possession and proximity: Someone can possess property without being physically near the property, so long as the possessor has the right to control the property. Thus, larceny can include a taking that does not occur in the victim’s presence or proximity.

3. Defendant in possession at time of taking: If the defendant is in rightful possession of the property when he appropriates it for himself, there is no larceny, because there is no trespassory taking. However, such a taking may constitute embezzlement, infra.a. Possession v. custody: Custody is a

lesser form of control than possession. One example of custody is stewardship of an employer’s property by low-level employees. A defendant’s mere custody of property does not insulate the defendant from liability for larceny.

4. Larceny by trick: A defendant who gains possession of property by fraud, deceit, or trick satisfies the trespassory-taking requirement.

B. Carrying away (asportation): The defendant must carry the property away for any distance, however slight, so long as every portion of the property has moved. Note: some jurisdictions

only require that the defendant assume dominion and control over the property.

C. Personal property: The property must be tangible and movable.1. Severance from real property: At

common law, larceny did not apply to items that first had to be severed from real property, such as timber or minerals, if the severance and taking were one continuous act. Such takings were instead treated as trespass. Most jurisdictions no longer follow this rule.

2. Intangibles: At common law, larceny did not apply to intangibles. Most modern jurisdictions apply larceny to the taking of documents or other papers that represent intangible rights, such as stock certificates.

3. Utilities: Most modern jurisdictions apply larceny to the taking of utilities, such as gas or electricity.

4. Services: At common law, the theft of services did not constitute larceny. Many modern jurisdictions either include services in the definition of larceny, or define theft of services as a separate crime.

D. Property of another: The property must belong to another at the time of the taking.1. Shared ownership: At common law, it

was not larceny to take property that belonged to both the defendant and a co-owner. Most modern jurisdictions will impose liability if another person has some interest in the property that the defendant is not entitled to infringe, even if the defendant also has an ownership interest in the property.

2. Security interests: If the defendant has handed over property to someone else as security for a debt, the defendant can commit larceny if he takes that property during the term of the security interest without the interest holder’s consent.

3. Contraband: Larceny applies to property that is contraband, or which a person otherwise possesses unlawfully. Thus, it can be larceny to steal stolen property from a thief.

E. Intent to deprive permanently: A defendant must have the specific intent to deprive the rightful owner of possession permanently.

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1. Borrowing: Borrowing, defined as taking property with the bona fide intent to return it after use, is not larceny.

2. Claim of right: Larceny does not occur if the defendant believes in good faith that she is entitled to possession of the property, even if the defendant is mistaken.

3. Continual takings: The rule of continual taking applies when (1) the defendant commits a trespassory taking (2) without the intent to deprive permanently, but (3) later forms the intent to deprive permanently. In such cases, most jurisdictions regard the initial taking as continuing until the defendant forms the intent to deprive. At that point, the defendant is guilty of larceny. Note: this doctrine does not apply if the initial taking is technically trespassory, but innocently motivated (such as a mistaken belief in consent).

4. Misdelivered property: One special problem in larceny is the keeping of misdelivered property. There are four scenarios:a. If the defendant knows that the property

is misdelivered, and at that moment intends to keep the property, then the defendant is guilty of larceny.

b. If the defendant initially does not intend to keep the property, and only later decides to keep it, there is no larceny, because upon taking possession the defendant lacked the intent to deprive the rightful owner permanently.

c. If the defendant initially believes that the property was correctly delivered, and only later learns that the property was misdelivered, there is no larceny, because there is no trespassory taking.The defendant receives a container that mistakenly includes unexpected property. The results are mixed, and often turn on whether the taking is deemed to occur upon receiving the container or upon discovering the contents.

5. Lost or mislaid property: This is another special larceny problem, with three scenarios:

a. If the defendant (1) knows who the owner is, or has reason to think that the owner can be found, and (2) intends to keep the property upon finding it, then the defendant is guilty of larceny.

b. If the defendant does not intend to keep the property upon finding it, but later decides to keep it, there is no larceny, because the intent to deprive does not coincide with the taking.

c. If the defendant initially has no reason to think that the owner can be found, but later learns who the owner is, there is no larceny if the defendant decides to keep the property, because the initial taking was not trespassory.

6. Abandoned property: Abandoned property has no owner, and therefore cannot be a basis for larceny.

II. Robbery: Robbery is larceny in which the property is taken (1) from the person or presence of another (2) by force or intimidation. A. Person or presence of another: The property

must be close enough to the victim that the victim could have prevented the taking if the defendant had not used force or intimidation.

B. Force or intimidation: Force is the physical action used to overcome the victim’s resistance.1. Sudden snatching: A sudden snatching is

not sufficient force for robbery unless the victim has time to resist. Any resistance by the victim will turn the snatching into sufficient force.

2. Retention of property: Robbery occurs if the defendant uses force to retain the property after the taking.

3. Intimidation: Intimidation occurs when the victim reasonably apprehends imminent bodily injury or death. Apprehension does not mean fear. Instead, it means a realization or understanding that that the harm will occur unless the victim surrenders the property. In addition, the harm apprehended must be imminent, meaning that it will occur without delay. Threats of future harm are not sufficient for robbery.a. Threats to others: Threats constituting

intimidation are sufficient if made to

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the victim, the victim’s family, or someone in the company of the victim.

b. Treats to property: Threats to property usually do not suffice for robbery.

C. Claim of Right: Unlike larceny, a taking under a claim of right is not a defense to robbery.

D. Armed robbery: Robbery carries heightened penalties if carried out with a deadly weapon.

III.Extortion: Extortion is the (1) obtaining or attempting to obtain (2) property or some pecuniary benefit (3) by threat of future physical, financial, or legal harm if the victim fails to comply with some demand. In most jurisdictions, it does not matter whether the defendant is able to make good on the threats.

IV. Embezzlement: Embezzlement is the (1) fraudulent (2) conversion of (3) property (4) of another, by (5) a person who is in lawful possession of the property. Embezzlement often applies to takings by someone who has been entrusted with another’s property (e.g., an agent or employee).

V. Receiving stolen property: Receiving stolen property is (1) the receipt of stolen property (2) that the defendant knows was stolen by another, when (3) the defendant intends to deprive the rightful owner of possession permanently.A. Receipt: A defendant receives property by

taking it into his dominion and control. Receipt may occur if the property is placed in a location over which the defendant has control, or if the defendant directs the disposition of the property by another person.

VI. False pretenses: False pretenses is (1) the obtaining of title to (2) another’s property (3) by misrepresenting a past or present material fact, (4) with knowledge of the misrepresentation and (5) intent to defraud. A. Reliance (Causation): The victim relies on the

misrepresentation if the misrepresentation is a cause of the victim’s handing over the property. A misrepresentation that is irrelevant to the victim’s action is not a basis for false pretenses.

B. Past or present material fact: Statements or promises about future facts or events generally do not support liability. However, some courts hold that a defendant who makes a promise with no intention of keeping it does make a

misrepresentation of a present fact, i.e., the fact of the defendant’s present intentions.

C. Intent to defraud: The intent to defraud is an intent to obtain something permanently to which the defendant is not entitled. Thus, a defendant lacks the intent to defraud if he believes that the property is actually his, or if he both intends and is able to return the property.

VII. Forgery: Forgery is (1) the creation or alteration of (2) a false writing or document, with (3) intent to defraud. At common law, presenting a forged document to someone was the separate offense of uttering a forgery, which consisted of offering a forged instrument as if it were real with the intent to defraud.

VIII. Burglary: The definition of burglary has evolved from the common law to modern times.A. Common-law burglary: Common-law

burglary is the (1) breaking and (2) entering of (3) another’s dwelling (4) at night, with (5) intent to commit a felony therein.

B. Modern burglary: A typical modern definition is the (1) unlawful entry of (2) a building or structure, with (3) intent to commit any crime therein.

C. Breaking: The breaking can be actual or constructive.1. Actual breaking: This historically required

physical damage to the property. Most modern jurisdictions no longer require a breaking. Those that do tend to define a breaking as using any force, no matter how slight, to create or enlarge an opening, e.g., raising a partially open window.

2. Constructive breaking: A constructive breaking occurs when the defendant obtains entry through fraud, conspiracy, or threat of violence.

D. Entering: Entry occurs when (1) any part of the defendant’s body, or (2) any part of a tool used by the defendant, crosses the threshold of a building.1. Unlawful: An entry is unlawful when

made without privilege or consent. This may include entering a portion of a building where a defendant is not privileged to go. It may also include remaining in a building with intent to commit a crime.

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E. At night: At common law, this was defined as the time during which another person’s face could not be seen by natural light. Most jurisdictions no longer require this element.

F. Intent to commit a felony or crime therein: The intent to commit a felony or crime must exist when the defendant enters the building. In jurisdictions that recognize remaining in a building as a basis for burglary, the intent must occur during the act of remaining.

OTHER CRIMES: Additional substantive crimes include (1) battery, (2) assault, (3) kidnapping, (4) rape, (5) arson, and (6) possession offenses. I. Battery: Battery is (1) harmful or (2) offensive (3)

physical contact with another.A. Mens rea: Battery can be committed either

with specific intent to harm the victim, or with general intent to cause physical contact that happens to result in unintended harm.

B. Physical contact: The physical contact can include (1) directly contacting the victim’s body, (2) causing some object or instrumentality to contact the victim’s body, or (3) contacting something intimately connected with the victim’s person, such as an object that the victim is holding.

C. Harmful or offensive: Harmful contact is that which results in pain or injury to some part of the victim’s body. Visible injury is not required. Offensive contact is any touching that occurs in a rude, angry or insolent manner, or that is an affront to the victim’s dignity.

D. Degrees of battery: Ordinary battery is usually a misdemeanor. Most jurisdictions treat more severe forms of battery as felonies. A felony battery is sometimes called aggravated battery, or aggravated assault. Felony batteries are typically those that result in especially serious bodily injury, those that are carried out by using a deadly weapon, or those carried out with an especially harmful intent, such as an intent to kill, or an intent to maim.1. Deadly weapons: A deadly weapon is (1)

an object or device that is designed to cause physical harm, such as a knife or a gun, or (2) any object that is used in a manner that can cause death or serious bodily injury.

E. Consent: Consent can sometimes be a defense to battery, if (1) the physical contact is slight and not physically harmful, such as a kiss, (2)

the contact involves medical treatment, or (3) the contact occurs as a normal and expected part of a sporting event.

II. Assault: Assault is defined in one or both of two ways, depending on the jurisdiction: (1) an attempted battery, or (2) conduct that (A) intentionally (B) places the victim in reasonable apprehension of (C) an imminent battery. A. Attempted battery: Assault of this type

requires a substantial step toward completion of the battery. [See Attempt, infra.]

B. Apprehension of imminent battery:1. Intent: The defendant must intend to instill

apprehension in the victim. The defendant need not intend to carry out the battery.

2. Apprehension: Apprehension is not fear, but an expectation or awareness that a battery will occur.a. Reasonableness: The victim’s

apprehension must be reasonable.b. Apparent ability to batter: It does not

matter whether the defendant has the ability to carry out the battery, as long as the defendant has the apparent ability to do so.

3. Imminent battery: Imminent means that the battery is about to occur, without delay. Anticipation or threat of a future battery is not sufficient.

4. Conditional assault: Conditional assault occurs when the defendant threatens to batter the victim unless the victim complies with some unlawful demand (e.g., “your money or your life”). Such a threat constitutes assault even if the victim complies to avoid the harm.

III. Rape: The definition of rape has evolved from the common law to modern times.A. Common-law rape: Common-law rape is: (1)

carnal knowledge (2) of a woman (3) without her consent, (4) by means of force or threat of force, (5) by a man who is not her husband.

B. Modern rape: A more modern definition of rape is: (1) sexual intercourse (2) with another person (3) without that person’s consent.

C. Actus reus: At common law, the actus reus of rape was genital intercourse, defined as any penetration by the (male) defendant, no matter how slight. Many modern statutes include anal and oral penetration, by appendages and objects other than the male sex organ. Rape

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liability is no longer limited to male perpetrators or to female victims.

D. Mens rea: Rape is often considered a general intent crime, requiring an intent to perform the prohibited act, but not intent that consent be absent. 1. Mistake as to consent: A defendant will

sometimes seek to avoid liability by claiming a mistake as to the victim’s consent. Some jurisdictions reject this defense entirely, others allow the defense unless the defendant was negligent as to consent, and still others allow the defense unless the defendant was reckless as to consent.

E. Without consent: 1. Physical resistance: The common law

required the victim to resist physically in order to manifest nonconsent. Most jurisdictions have now abandoned this requirement.

2. Manifesting nonconsent: A person can manifest nonconsent through physical resistance (though this is no longer required), through verbal expression, or through other conduct. In some jurisdictions, statutes provide that a person’s silence cannot be deemed to manifest consent. Other jurisdictions do not address this issue.

3. Lack of capacity to consent: A person might lack the capacity to consent if that person is sleeping, unconscious, or otherwise physically unable to give consent.

4. Lack of competence to consent: a. Mental and cognitive conditions: A

person whose is insane, mentally disabled, or otherwise mentally incompetent is deemed incapable of giving consent.

b. Age: Persons below a certain age are deemed incompetent to give consent as a matter of law. [See Statutory Rape, infra.]

c. Voluntary intoxication: A person who voluntarily becomes intoxicated is not necessarily deemed incapable of giving consent. However, if the intoxication is so severe that the person is effectively incapacitated or rendered incompetent,

then the person may be incapable of giving consent.

F. Intrinsic and extrinsic force: Intrinsic force is the force needed to accomplish the act of penetration itself. Extrinsic force is any other force used to overcome resistance or otherwise impose upon the victim. Most jurisdictions require a showing of extrinsic force, though intrinsic force will suffice in a few jurisdictions.

G. Threat of force: A threat must place the victim in fear or apprehension of imminent bodily harm. Historically, some courts required that the victim’s fear be reasonable, though many modern courts do not. Express threats are always sufficient for liability, while implied threats are sufficient in some jurisdictions.

H. Fraud: 1. Fraud in the factum: At common law,

fraud in the factum occurs when the defendant deceives the victim as to whether intercourse is actually taking place. This is sufficient for liability. (Example: doctor has intercourse with a patient while tricking the patient into thinking that the act is actually a medical procedure.)

2. Fraud in the inducement: Fraud in the inducement occurs when the defendant tricks the victim into giving consent; for example, a doctor who falsely persuades the victim that intercourse with the doctor is a necessary medical treatment. At common law, fraud in the inducement would not support rape liability. Some modern jurisdictions have expanded liability to include (1) fraud induced by defendants in positions of trust, or (2) fraud of any kind.

I. The marital exemption: At common law, by definition, a husband could not commit rape against his wife. Some jurisdictions now allow marital liability in all circumstances, while other jurisdictions limit liability to cases where there is evidence of force or threat, or where the husband and wife are living apart from one another.

J. Statutory rape: A defendant may be strictly liable for sexual intercourse with a minor below the age of legal consent. 1. Strict liability and mistake: Most

jurisdictions treat statutory rape as a strict 16

liability crime, and hold that a defendant’s honest mistake or reasonable belief that the victim was over the age of consent is not a defense. A minority of jurisdictions do allow a defense if the defendant reasonably believed that the victim was over the age of consent. The MPC takes a compromise position, allowing the defense of mistake unless the victim is below the age of 10.

K. Rape shield laws: Many jurisdictions have statutes that prevent a defendant from introducing at trial any evidence of a rape victim’s prior sexual conduct.

IV. Kidnapping: Kidnapping is the (1) unlawful taking and (2) movement or confinement of another.A. Taking: A taking is unlawful when it is

accomplished by force, threat of force, deception, or other means of seizing a person against that person’s will.

B. Movement or confinement: In most jurisdictions, either movement or confinement of the victim is sufficient for liability.1. Movement: At common law, any

movement, no matter how slight, was sufficient. Many states now require that the movement be more than incidental to the commission of another crime. Relevant factors may include the duration and distance of the movement. Also relevant is whether the movement increased the danger to the victim, either by exposing the victim to harm while in transit, or by taking the victim to a secluded or otherwise dangerous location.

2. Confinement: Many courts require that the confinement be more than incidental to some other crime. Most jurisdictions do not specify a particular time or place of detention that constitutes confinement. The focus is usually on whether the confinement substantially isolates the victim from society or from communication with others.

V. Arson: Arson is the (1) malicious (2) burning or exploding (3) of a dwelling or building (4) of another.A. Malice: Malice typically means that the

defendant must have acted intentionally or recklessly in causing the result. As in the law

of murder, malice does not require that the act was done with ill will or some evil motive.1. Intent to defraud: At common law, it was

not arson to burn the defendant’s own house in order to collect the insurance proceeds. Many criminal codes now impose liability in this situation.

B. Burning or exploding: At common law, burning was satisfied by the charring of any portion of the structure. Some jurisdictions still follow the charring requirement, while in others, any form of damage will suffice, such as smoke damage or blistered paint. Most jurisdictions now extend arson to damage caused by explosions, as well as by fire.

C. Dwelling or building: At common law, arson applied only to dwellings. Modern arson statutes extend to buildings of any kind, and sometimes to other forms of property, such as cars.

D. Of another: At common law, arson applied only to a dwelling in the possession of someone other than the defendant. Modern statutes usually extend liability to any building in which someone other than the defendant has an interest with which the defendant has no right to interfere. This is true even if the defendant shares a possessory or ownership interest in the building.

VI. Possession: Possession can be actual or constructive. A. Actual possession: Possession is actual when

(1) the defendant has actual physical control over something, and (2) the defendant is aware of this control for long enough to enable the defendant to terminate the possession.

B. Constructive possession: Possession is constructive when (1) the defendant has the right or the power to exercise dominion and control over something, and (2) the defendant is aware of this control for long enough to enable the defendant to terminate the possession.

C. Deliberately avoiding awareness: If a defendant deliberately avoids learning information that would make the defendant aware that the defendant possesses something, then many courts will impute such awareness to the defendant.

D. Knowledge of nature or characteristics of item possessed: Possession typically does not

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require that the defendant know the exact nature or characteristics of the thing possessed (e.g., need not know that a white powder is an illegal drug). However, the legislature may impose such a requirement by including it in the relevant statute.

E. Joint possession: Possession does not require exclusive control of the thing possessed. Multiple people can jointly possess a single item.

INCHOATE OFFENSES: Inchoate offenses are anticipatory or preparatory in nature (as opposed to being completed crimes). Inchoate offenses include: (1) attempt, (2) conspiracy, and (3) solicitation.I. Attempt: Attempt occurs when a defendant, (1)

with the intent to commit the substantive crime, (2) engages in a course of conduct that is in furtherance of the crime, but which (3) does not result in the successful completion of the crime.A. Mens rea: The defendant must have the specific

intent to commit the substantive crime. 1. Recklessness or negligence: If a crime

requires unintentionally causing a particular result, then it is normally not possible to attempt to commit that crime. It is illogical to say that a defendant intended to bring about an unintended result.

B. Actus reus: The act must involve conduct in furtherance of the crime that amounts to more than mere preparation to commit a crime. The courts typically use one of three approaches to determine what acts are sufficient for attempt: (1) substantial step, (2) proximity, and (3) probable desistance.1. Substantial step: The act must (1) be a

substantial step in a course of conduct intended to culminate in the commission of a substantive crime, and (2) strongly corroborate the firmness of the defendant’s criminal intent (e.g., lying in wait, enticing, reconnoitering, unlawfully entering, possessing, or soliciting). Note: the MPC and most jurisdictions follow the substantial-step approach.

2. Proximity: The defendant must commit an act that comes dangerously close to the completion of the crime. Some courts require the act to be indispensable to the success of the crime, while others require an act that brings the actor physically close

or close in time to the completion of the crime.

3. Probable desistance: This approach asks whether the defendant has reached the point at which a typical person with the defendant’s intent would voluntarily change his mind and give up the attempt. Another way of putting this is whether the defendant has reached the point at which the crime will occur unless some external force intervenes to stop it. This approach tends to overlap with the proximity approach.

C. Attempt as a lesser included offense: If a defendant is charged with a crime, and the facts tend to show that the crime was completed, then the defendant can be convicted of either the attempt or the completed crime. In that case, the attempt is regarded as a lesser included offense of the primary crime. However, the defendant cannot be convicted and sentenced for both the attempt and the completion.

D. Defenses to attempt: The primary defenses to attempt are (1) impossibility and (2) abandonment.1. Impossibility: Impossibility can be either

factual impossibility or legal impossibility. a. Factual impossibility: The defendant

has the specific intent to commit a crime, but unknown circumstances render him unable to complete the crime (e.g., attempt to kill with an unloaded gun). Factual impossibility is not a defense to attempt.

b. Legal impossibility: What the defendant attempted to do is not actually a crime under the law. True legal impossibility is a defense to attempt at common law, though some modern jurisdictions reject the defense. Note: courts sometimes find legal impossibility when the defendant attempted to perform a lawful act that would have been a crime if circumstances were as the defendant believed them to be (e.g., buying property that the defendant mistakenly believes is stolen). It is questionable whether these are cases of true legal impossibility.

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2. Abandonment (renunciation): Abandonment requires (1) either (A) abandonment of all efforts to commit the crime, or (B) other action to prevent the crime from occurring, with (2) circumstances manifesting complete and voluntary renunciation of the criminal objective. Abandonment is not voluntary if the defendant is deterred by unexpected difficulties, fear of detection, or the desire to wait for a better opportunity to commit the crime. Most courts do not recognize the abandonment defense.

II. Conspiracy: Conspiracy is (1) an agreement (2) between two or more people (3) to commit a crime, or (4) to commit a lawful act by criminal means, combined with (5) (in some jurisdictions) at least one overt act in furtherance of the agreement. A. Mere preparation sufficient: Unlike attempt,

mere preparation usually suffices for conspiracy.

B. An agreement: An agreement for conspiracy can be explicit or implicit. Words or conduct can suffice to show agreement.

C. Two or more people: 1. Bilateral v. unilateral: At common law, a

conspiracy had to be bilateral, with at least two parties in actual agreement. The MPC and some modern jurisdictions follow a unilateral approach, which requires only one person’s agreement. Under the unilateral approach, a defendant can be liable for conspiracy for agreeing with someone who is only feigning agreement, such as an undercover police officer.

2. Acquittal of co-conspirators: In most jurisdictions, a defendant cannot be convicted of conspiracy if everyone with whom he allegedly conspired has been acquitted. This rule is rejected by the MPC, and by a minority of jurisdictions, based on the same logic as the unilateral approach to conspiracy, supra.

3. Husband and wife: At common law, a husband and wife could not be convicted of conspiring with one another. This rule is no longer followed in most jurisdictions.

4. Corporations: A corporation can be a party to a conspiracy. However, some courts will not recognize conspiracy between a corporation and an agent of the

corporation, or between two or more agents of the same corporation.

5. The Wharton rule: The Wharton rule bars a defendant’s conviction for conspiracy to commit a crime that by definition can only be committed by two or more culpable participants. Examples of such crimes include bigamy and dueling.a. Exception—surplus participants: The

Wharton rule does not apply if the conspiracy includes more participants than necessary to complete the crime.

b. Exception—conspiracy with persons not liable for target crime: The Wharton rule does not apply when a person conspires to commit a crime for which that person cannot be liable. Unless the non-liable party is a member of a legislatively protected class, then all parties involved can be liable for conspiracy. [See Conspiracy with member of protected class—no liability, infra.]

c. Conspiracy with member of protected class—no liability: Despite the previous exception, a person cannot be convicted of conspiring with a person who is in the class of people that the statute was designed to protect.

D. Intent to commit a crime: At common law, the unlawful goal of a conspiracy could include certain non-criminal matters. Modern law generally requires that the goal be either the commission of a crime, or the achievement of some lawful goal by criminal means.1. Shared intent required: In order to be

liable as co-conspirators, the parties must share the intent to commit the target crime. Anyone who does not share this intent is not guilty of conspiracy.

2. Mental state for target crime required: The conspirators must have any special mental state that is required for the target crime (e.g., intent to deprive permanently for larceny; intent to commit a crime therein for burglary).

3. Supplying goods or services to the conspiracy: A person who supplies goods or services to a conspiracy is normally not liable for conspiracy based solely on the supplier’s knowledge that the goods or

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services will be used to further an unlawful goal. Some intent to promote or to facilitate the conspiracy is required. Such intent may be inferred if the seller provides highly specialized goods, or makes an unusually large profit from the sale.

4. The corrupt motive doctrine: It is usually not a defense to conspiracy that the defendant was unaware that the goal of the conspiracy was unlawful. A few courts allow such a defense under the corrupt motive doctrine. These courts hold that a defendant is not liable for conspiracy unless the defendant is aware that the goal of the conspiracy is some illegal act. This doctrine is usually limited to crimes that are malum prohibitum; that is, acts that are made criminal for some reason other than their inherent danger.

5. Impossibility: Neither legal impossibility nor factual impossibility is a defense to conspiracy.

E. The overt act requirement: At common law, the crime of conspiracy is complete once the parties reach an agreement to commit a crime. However, the MPC and most states require that at least one party to the conspiracy complete an overt act in furtherance of the conspiracy. It is not necessary that the act be attributable to all members of the conspiracy; an overt act by a single conspirator will suffice.1. Nature of the overt act: In most

jurisdictions, an overt act does not need to be an element of the crime, nor does it need to be a sufficient step to constitute an attempt.

F. Scope of liability: 1. Crimes of co-conspirators: Generally,

each conspirator is liable for all reasonably foreseeable crimes committed in furtherance of the conspiracy by any co-conspirator.

2. Statements of co-conspirators: In many jurisdictions, a statement is not hearsay if it is made by a defendant’s co-conspirator, so long as the statement was made during the course of, and in furtherance of, the conspiracy.

3. Conspiracies involving multiple crimes: If the conspirators agree from the outset to engage in a course of conduct

encompassing multiple crimes, then the crimes are treated as part of a single conspiracy.

4. Conspiracies involving multiple groups: a. Chain conspiracies: A chain

conspiracy exists when a conspiracy’s goal requires successive activities by a series of participants. All of the participants are said to be links in this chain of events. Because the links are interdependent, the chain is typically treated as a single, large conspiracy.

b. Wheel conspiracies: A wheel conspiracy exists when a single conspirator, called the hub, has dealings with multiple co-conspirators, called the spokes. If the only connection among the spokes is their common relationship with the hub, then each hub-spoke relationship is treated as a separate conspiracy.

G. Ending the conspiracy: A conspiracy continues until the conspirators abandon the conspiracy or complete the goal of the conspiracy. 1. Abandonment: A conspiracy as a whole

will end if all of the conspirators abandon their conspiratorial goal. Abandonment is presumed if no member of the conspiracy has performed any overt act within the statute of limitations.

2. Achievement of conspiracy’s goal: A conspiracy also ends when the conspirators have achieved the goals of the conspiracy. Acts that occur after the target crime may be used as evidence that the conspiracy has continued. For example, selling stolen property might be considered a continuation of a conspiracy to steal.a. Concealment: The conspirators’

concealment of a crime is normally not considered a continuation of the conspiracy, unless the concealment was integral to the conspirators’ goals, or the act of concealment was an element of the underlying crime.

3. Government intervention: Generally, a conspiracy does not automatically end when government officials become involved.

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4. Withdrawal: An individual conspirator can limit his or her liability by withdrawing from the conspiracy. a. Requirements for effective

withdrawal: The defendant must perform some affirmative act that is sufficient to place a reasonable person on notice of the party’s withdrawal. This notice must be provided to every other member of the conspiracy, in time for them to abandon the conspiracy. The MPC also provides for withdrawal when the party notifies law enforcement of the existence of the conspiracy and the withdrawing party’s participation.

b. Effect of withdrawal: Withdrawal is not a complete defense to conspiracy, because the crime of conspiracy is complete once the conspirators agree. However, withdrawal may (1) cut off the withdrawing party’s liability for subsequent crimes committed by the remaining conspirators, (2) limit the co-conspirator statements that can be used in evidence against the withdrawing party, and (3) activate the statute of limitations as to the withdrawing party.

5. Renunciation: Unlike withdrawal, renunciation can be a complete defense to conspiracy. The MPC recognizes an affirmative defense of renunciation, which requires that (1) the defendant actually thwart the success of the conspiracy (e.g., by informing police), and (2) the circumstances manifest complete and voluntary renunciation of the defendant’s criminal purpose. Renunciation does not occur if a conspirator abandons the conspiracy because of fear of detection, or due to unforeseen obstacles to the commission of the target crime.

III.Solicitation: Solicitation occurs when the defendant (1) invites, requests, commands, encourages, or counsels (2) another (3) to commit a felony or a misdemeanor breach of peace (4) with the intent that the person solicited carry out the crime.A. Defenses:

1. Renunciation: Most jurisdictions do not recognize renunciation as a defense to

solicitation. Under the MPC, voluntary renunciation may be a defense if the defendant (1) persuades the solicitee not to commit the crime, or otherwise prevents its commission, (2) under circumstances manifesting a complete and voluntary renunciation of criminal purpose.

2. Solicitation by party not liable for crime: If the person soliciting the crime could not be guilty of the crime solicited, then criminal solicitation has not occurred.

3. Impossibility: It is not a defense to solicitation that the person solicited was incapable of committing the crime.

4. Accomplice Liability: If the person solicited goes on to commit the crime, then the solicitor will likely be liable as an accomplice. [See Parties to a Crime, infra.]

PARTIES TO A CRIME: The commission of a crime may involve: (1) principal actors, (2) accomplices, or (3) accessories.I. The common-law approach: The common law

recognized four kinds of parties to a crime: A. The principal in the first degree performs the

criminal act with the required mens rea. B. The principal in the second degree is actually

or constructively present at the commission of the crime, and aids, counsels, or encourages the principal in the first degree.

C. An accessory before the fact is not present at the commission of the crime, but aids, abets, or encourages the principal in the first degree.

D. An accessory after the fact assists the principal in the first degree in avoiding apprehension or punishment after the commission of the crime.

II. The modern approach: The modern approach streamlines the common-law categories and does away with many of the accompanying procedural technicalities. The important modern categories are those of principal and accomplice.A. Principal: A principal actor is one who

actually commits the actus reus, coupled with the requisite level of culpability.

B. Accomplice: An accomplice is someone who (1) knowingly provides aid, assistance or encouragement to the principal, (2) with the intent that the principal succeed in committing the crime.

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1. Scope of liability: An accomplice can be criminally liable to the same extent as the principal. a. Principal acquitted: An accomplice

can be liable even if the principal is acquitted of the crime, or if the principal has not been tried.

b. Natural and probable consequences: An accomplice can be liable for additional crimes committed by the principal in the course of committing the crime that the accomplice aided. The additional offenses must be (1) the natural and probable consequence of the crime aided, and (2) committed in furtherance of the crime aided.

2. Mens rea: The accomplice must both (1) intend to assist the principal, and (2) intend that the principal succeed in committing the crime. Thus, the accomplice must have the same mens rea as the principal toward the underlying crime. a. Knowledge of principal’s intent:

Generally, a person who assists a principal is not liable as an accomplice merely because that person knows that the principal intends to use the assistance to commit a crime. Most courts require that an accomplice have some greater interest in the commission of the crime, or some intent to promote or to facilitate the crime. Such intent may be inferred, however, if the seller provides highly specialized goods, or makes an unusually large profit from the sale.

b. Reckless or negligent crimes: Some jurisdictions reject accomplice liability for crimes involving recklessness or negligence, reasoning that the principal’s crime involves an unintended result, and therefore an accomplice cannot logically share the intent to cause an unintended result. However, some jurisdictions will impose accomplice liability if the accomplice provided assistance recklessly or negligently, as required for the principal’s crime.

3. Actus reus: The accomplice need not commit the actus reus of the crime.

a. Presence at scene: The accomplice need not be present at the scene of the crime. Likewise, mere presence at the scene is not by itself sufficient to impose accomplice liability. Some further aid or encouragement is required.

4. Withdrawal defense: Withdrawal is a defense to accomplice liability. Withdrawal requires the accomplice to undo or nullify any assistance provided up to that point, and to do so before the crime becomes inevitable. a. Warning law enforcement: Some

jurisdictions recognize an effective withdrawal if the accomplice warns law enforcement in time to prevent the principal’s crime.

b. Retrieving physical aid: If the accomplice has provided physical aid, such as weapons or tools, the accomplice typically must retrieve the aid before it can be used in the crime.

c. Intangible aid: If the accomplice has provided intangible advice or encouragement, as opposed to tangible tools or supplies, some jurisdictions require the accomplice to expressly communicate to the principal that the accomplice is repudiating any past assistance and will no longer aid or encourage the crime.

d. Limitations: Some jurisdictions do not allow a withdrawal defense if the accomplice withdraws because of fear of apprehension, unforeseen obstacles that make it more difficult to commit the crime, or a belief that circumstances are unfavorable for commission of the crime.

5. Exceptions to liability: a. Victims of crime: A victim of a crime

is generally not subject to accomplice liability for that crime.

b. Member of protected class: A person who is in the class of people that the statute was designed to protect cannot be liable as an accomplice to the violation of that statute.

c. Persons exempted as principals: If a crime requires multiple participants, but

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one of those participants is exempt from liability, then the exempt participant cannot be liable as an accomplice.

C. Post-crime assistance: Unlike accomplice liability, providing post-crime assistance is usually treated as a separate crime with a separate range of punishment. Thus, someone who provides such assistance is not liable for the crimes of the principal.1. Common law: At common law, an

accessory after the fact is one who provides assistance to the principal after the crime has been committed, for the purpose of helping the offender to avoid apprehension, detection, or prosecution.

2. Modern law: The term “accessory after the fact” is no longer widely used, but the underlying concepts are found in most modern criminal codes. The MPC prohibits the following acts, if the actor intends them to prevent or hinder the apprehension or prosecution of a criminal:a. harboring or concealing the offender;b. providing, or assisting the offender in

obtaining, weapons, transportation, disguise or other means of avoiding detection;

c. concealing or destroying evidence of the crime;

d. warning the offender of impending discovery or apprehension; or

e. giving false information to law enforcement. [MPC § 242.3.]

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