1. The Act Requirement: a. States can determine what constitutes a criminal act as long as it expresses the crime i.e.

overt actb. Common law

i. Recognizes a crime only when the individual commits a voluntary, overt act causing or threatening some harm in the sense of advancing some criminal purpose

c. MPC material elements:i. Conduct – physical behavior

ii. Circumstance – objective fact or condition that exists in the real world when engaging in conduct

iii. Result – consequence or outcome caused by conduct.d. Passive acts: must be an overt act which flows from unlawful purpose as an overt

expression of intenti. Proctor v. State : “keeping of a place” with intent to commit illegal acts in the

future does not qualify as an overt act.e. Omissions (passive acts): law can punish for failure to act only when there is a legal duty:

i. Breach of legal duty exists when:1. Statute mandated2. Certain status relationship (e.g. mother)3. Contractual duty4. Voluntarily assumed care that isolates helpless person 5. Creation of peril or risk (Levesque – negligence of the parties; not

necessary to have purpose to create harm)ii. Jones v. United States : Jones convicted of involuntary manslaughter when kid in

her house died of malnutrition. Court found jury must be instructed to decide if Jones had a legal duty to provide care.

f. Possession: an act that can be made a crime when the thing possessed is dangerous or harmful, or incriminating, like stolen property; describes relationship of a person to the thing rather than some active bodily movement

i. Actual vs. constructive (removed from the item)1. Actual: physical dominion or control over the item, such as having it in

one’s hand or pocketa. Actually possesses a container – can possesses everything in the

container2. Constructive: the ability to exercise dominion and control over the item

coupled with the intent to do soa. United States v. Maldonado : defendant found guilty of possession

because of ability to exercise control over drugs knowingly kept in hotel room defendant had access to

b. Usually fact based issueii. Intent of possession is separate from mens rea element

iii. Factors include:1. How close is the actor to the item? Geography important.2. Where did the item come from? History of item.3. How did it get into the actor’s proximity?

4. Who owns the item?5. Did someone have exclusive control over the item at the time?

Relationship of other people to the item.iv. Failure to terminating possession once becoming aware of illegal item is

considered an omission in face of the legal duty and constitutes possessionv. More than one person can possess an item at one time

vi. Possession of items in cyberspace – must also exercise control1. State v. Barger : unknowingly having child pornography on cache files on

computer is not possession – simply viewing child porn on a webpage does not constitute the ability to exercise control over child porn even though you exercise control over the computer

g. Requirement of harm: the act must cause or threaten harmi. The state has the ability to define harm. This defense only applies when a

constitutional liberty is infringed by statute1. Lawrence v. Texas : adults with full and mutual consent engaging in

normal (homosexual) conducted are constitutionally entitled to respect for private lives

h. Voluntariness: movement of the human body that is, in some minimal sense, willed or directed by the actor; conscious control over actions

i. Habit or inadvertence as long as individual could have behaved differently ii. Must be at least one voluntary act but not all acts leading up to crime must be

voluntary 1. Deciding to behave recklessly could be considered an act

iii. Involuntary Acts: no conscious control (i.e. sleepwalking or unconsciousness, being pushed by someone else, reflex or convulsion)

1. Martin v. State : drunk man taken to public place by police officers and then arrested for being drunk in a public place – involuntarily in public because taken there by someone else

2. Automatism: person capable of action but is not conscious of what he is doing

a. Not considered insanityb. People v. Grant : struck police officer and claimed automatism due

to seizure; hard to prove to juryi. Status: the law may not punish the actor for who he is but only for what he does

i. Cannot punish without proof of actii. Propensity to do something or a desire to do an illegal act does not substitute for

act itself 1. Robinson v. United States : being addicted to use of narcotics is perhaps a

disease and cannot punish people for being diseased (cruel and unusual punishment); addict didn’t have control over the addiction

a. Dissent: addiction means previous illegal use and should be allowed to convict based on evidence that proves he was an addict

2. Powell v. Texas : convicted for act of getting drunk in public not status of being an alcoholic

a. Homeless alcoholic? Getting drunk still an act, but not trying to appear in public

j. Legality: there must be a law in existence defining the actor’s conduct as a crime.i. Ex post facto applies only to legislatures

ii. Court cannot create an offense by enlarging a statute by adding or deleting words or by giving the terms false or unusual meanings

1. Common law is important: (1) allows for predictability, (2) parent of law in the US as definitions in statutes are drawn from the common law, (3) common law principles rely on the constitution

iii. Must provide fair warning: criminal penalties attached to previously deemed legal acts violates due process right of fair notice

1. Interpreting statute: Keeler v. Superior Court: man not found guilty of murder when he kicked fetus to death because murder is defined as killing a “human being,” meaning person born alive. Fetus not born alive, therefore not human, therefore crime doesn’t fall within the statute of murder.

iv. Only overturn common law rule and apply it retroactively when new rule is not unexpected or indefensible

1. Applying common law not found in statute: Rogers v. Tennessee: overturning common law rule of requiring victim dies within a year and a day is not unexpected or indefensible because (1) rule was not express part of statute nor used in the state as a defense and (2) stabbing someone is not a previously deemed legal act

k. Vagueness: language that is unclear may violate the due process clause because it fails to give notice of what its terms prohibit

i. Vague statute is one that would cause “persons of common intelligence to necessarily guess as to its meaning and differ as to its application”

1. Chicago v. Morales : loitering statute found vague because it did not give fair notice to citizens about what constituted loitering (no apparent purpose) and dispersal requirement was vague and placed unjustified impairment of liberty

ii. Factors are (1) fair notice and (2) guide to enforcement:1. Fails to provided notice to citizens which violates due process2. Too much discretion in law enforcement agents and may encourage

arbitrary and discriminatory enforcementiii. Analyzing words of the statute themselves – not fact based

2. Requiring Mens Rea (the guilty mind): the actor must have some blameworthy state of mind at the time the act is committed in order to justify punishment; insures that only the guilty are punished and also allows for some measurement of the degree of blame

a. Intent for one crime does not transfer to intent for actual resulti. Regina v. Faulkner : A prisoner/seaman was convicted of burning up the ship he

was on while trying to steal rum. Faulkner was not liable because he didn’t knowingly or intentionally burn the ship (only intended to steal rum)

b. Mens rea applies to each element of the crime1. People v. Ryan : must prove Ryan knew the amount of the controlled

substance (psilocybin) he was attempting to possess; carry “knowingly” through to the end of the sentence, mens rea attached to every element of

the crime unless made clear otherwise (NY-MPC)c. Strict liability: exception to common law requirement of mens rea - criminal punishment

without needing proof of a culpable mental statei. Issue arises when statute contains no language defining a mens rea element

ii. Courts must look to the language of the statute and the legislature’s intent in passing the law

iii. Indications or factors showing that the legislature intended for the statute to be strict liability:

1. The measure is regulatory in naturea. Intended to protect people who are unable to protect themselves

from some danger by imposing a duty on a person in a position to prevent the harm

2. No serious punishment (e.g. felony, jail time, or stigma attached) otherwise unconstitutional via due process

a. United States v. Wulff : charged with felony of selling migratory bird parts where statute does not specify intent

i. Felonies require intent otherwise violates due process via US constitution

3. Would not criminalize a broad range of apparently innocent conduct4. Dangerous situation or inherently dangerous subject matter can put

defendant on noticea. Highly regulated subject matter can indicate that defendant should

have known about the lawb. People v. Dillard - convicted of carrying a loaded weapon in public

place even though he didn’t know the gun was loaded (i.e. should’ve checked gun)

5. Statute does not include levels of culpability iv. Unconstitutional strict liability statutes

1. Severe punishment can mark a violation of due process2. Notice and unfairness: unfair to punish someone when there is no act and

no probability of knowledge of the duty to acta. There must be no probability of knowledge of the duty to act

i. Lambert v. California : did not know of duty to register as felon upon entering LA

d. Mental state definitionsi. General intent: mental element attached to the act which constitutes the offense

1. Some awareness of wrongdoing expressed in the criminal act2. Words associated with general intent: maliciously, feloniously, knowingly,

etc.ii. Specific intent: an added mens rea beyond the intent attached to the act

1. Will be added phrase “with intent to”a. Or “knowing” used in added phrase

2. Only words: intentionally and purposely3. Constitutes an aggravation of the crime

a. Makes punishment more seriousb. Eliminates unknowing parties by requiring additional mens rea

iii. Model Penal Code: evaluate conduct, attendant circumstance, and result; Model Penal Code is not the law in any jurisdiction but used in most; created by educators, lawyers, and judges over 50 years ago, adopts 4 mental states:

1. Purpose: with respect to material element of an offense if it is his conscious object to engage in conduct of that nature or to cause such a results; if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes they exist

2. Knowledge: defendant is aware his conduct is of this nature or that the circumstances exist; and if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result

3. Recklessness (default): consciously disregards a substantial and unjustifiable risk. The risk must be of such a nature and degree that its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

4. Negligence: should be aware of (fails to recognize) a substantial and unjustifiable risk. This failure to recognize the risk, given defendant’s purpose and the circumstances known to him, involves a gross deviation from the standard of care a reasonable person would observe.

a. Criminally used only for homicidee. Mistake of fact: generally a defense

i. General intent: mistake must be both reasonable and honestly held1. Unless crime is strict liability

a. Regina v. Prince : taking of a girl under age of 16 from her father without permission; act in itself found to be wrong; statute in a group of statutes meant to protect girls so mens rea surrounding the age wasn’t important

ii. Specific intent: mistake must be honestly heldiii. No general intent in MPC, so mistake must be honestly held

f. Mistake of law: generally not a defensei. Mistake about the legal definition/implication of some fact (mistake of law treated

as mistake of fact)1. People v. Bray: defendant did not know if he was considered a felon

under CA law and therefore found not eligible to own a gun; Bray didn’t know if law applied to him because he was mistaken about legal definition of facts

ii. Mistake about existence or reach of the law is not an excuse (ignorance of the law is no defense):

1. United States v. Baker : Baker claimed he didn’t know trafficking in counterfeit goods was a criminal act because congress changed the penalty; Baker should’ve known act was wrong regardless of penalties

2. Exception:a. Lambert – violate law without acting and no reasonable knowledge

to know about requirement to actb. Reasonably relying on official interpretation given by authority in

the law (very narrow: MPC and MA)

i. Commonwealth v. Twitchell : son died via spiritual treatment and relied on attorney general’s statements surrounding right to religious based treatment and not being held criminally liable

g. Intoxicationi. Defense available: extreme or prostrating drunkenness of the type that would

erase mens rea1. Under MPC: can negate purposely or knowingly but not recklessly if so

drunka. Recklessly: can’t consciously disregard the risk because you were

too drunk2. Under common law:

a. Specific: yes, if so drunk so as to not be able to form requisite mens rea

i. State v. Cameron : 2nd degree aggravated assault and 4th degree resisting arrest requires purposeful conduct but Cameron was not drunk enough to requisite jury instructions on intoxication as a defense

ii. Degree of intoxication becomes an issue – must be prostrating drunk

b. General: noi. State v. Cameron : Intoxication not a defense when mens

rea requires “recklessly” (consciously disregarding risk)h. Diminished capacity

i. Specific intent: is a complete defense to the crime1. Hendershott v. People : court found defendant allowed to try to prove adult

minimal brain dysfunction as a mens rea defense for 3rd degree assault against girlfriend

2. Same under MPCii. General intent: only a defense in the affirmative (i.e. claim insanity)

1. Insanity defined as: as a result of a mental disorder, the defendant was unable to appreciate the nature and quality of his acts or he did not know that what he was doing was wrong

i. Legislatures are allowed to define and determine elements of crime and requirement of proof can be shifted to the defendant as long as defendant’s rights to due process are not violated

i. Montana v. Egelhoff : Montana law removed voluntary intoxication from mens rea inquiry found not to violate due process; not an issue of excluding relevant evidence if the evidence is not needed

ii. Clark v. Arizona : state allowed certain types of evidence to be heard for rebutting mens rea vs. proving insanity at the time of crime

3. Causation: will only arise in connection with homicide (no body dies? No issue of causation)a. Did the defendant cause the death of the victim?

i. Common law: incident of the act requirement, the necessary connection between the defendant’s act and the victim’s death

ii. MPC: primarily as an aspect of mens rea, the death as an extension of the

defendant’s guiltb. Issue of fact for the juryc. Cause-in-fact (the “but for” test) e.g. “but for the act of the defendant the victim would

not have died at the time that he did”i. Could have caused does not equate to did cause

1. Regina v. Martin Dyos : victim died from two blows to the head either of which could’ve cause death and could tell which blow came from the defendant

ii. Others contributing to death is not an excuse to also having caused death1. R. v. Benge : foreman, flag man, and train engineer all contributed to

accident; foreman still found guiltyd. Legal Cause: remote results and intervening causes; different jurisdictions define legal

cause differentlyi. Common law: killing act is a cause which in the natural and continuous

sequence produces the death and with which the death would not have occurred at the time that it did – “proximate case”

1. Commonwealth v. Rhoades : deliberately setting fire in an apartment and causing the death of a fire fighter

2. Stephenson v. State : kidnapper and abuser found to have caused woman to take poison

3. Commonwealth v. Levesque : omission – failed to notify of fire when creating risk of said fire

a. Duty to act arises when creating a dangerous situationii. A voluntary, intervening act by the victim cuts liability

1. People v. Kevorkian : assisted suicide but victim did the final act2. Independent intervening cause: Commonwealth v. Root: victim

voluntarily drove car into oncoming traffic during car raceiii. An unforeseeable intervening circumstance cuts liability, unless circumstance is a

response or result of defendant’s conduct – was the occurrence of the intervening cause “reasonably foreseeable” at the time of the defendant’s act

1. Chain of causation: United States v. Hamilton: victim beaten badly in a fight with defendant and victim dies in hospital

2. Grossly negligent medical care is not foreseeable but regular negligence is allowed

iv. Was the way in which the victim died reasonably foreseeable at the time of the defendant’s act?

1. Massachusetts standard v. MPC: the actual result is not too remote or accidental in its occurrence to have

a just bearing on the actor’s liability or on the gravity of the offense1. Consider the remoteness of the defendant’s act and 2. Weirdness/accidental way the result occurred

4. Homicide: a study in mens rea: murder (intentional) and manslaughter (unintentional)a. Murder (with malice aforethought)

i. Purpose or intent to kill1. First degree murder: decision to kill and some reflection on that decision

before the killing act is done

a. Factors indicative of premeditation:i. Motive

ii. Preparationiii. Origin of murder weaponiv. Prior hostilities between parties

ii. Intent to inflict grievous bodily harm (common law) – some jurisdictions1. May not apply depending on jurisdiction (manslaughter instead)

iii. Unintended killing that manifests extreme indifference to the value of human life1. Depraved heart murder = reckless murder = intent to kill

a. Extreme form of recklessness2. Distinguished from manslaughter by the degree of risk – death is

probable rather than only possible (reckless plus)a. More than a gross deviation from normal law abiding person +

conscious disregard of risk = murderb. Mayes v. People : throw beer glass in wife’s direction

3. Actor must understand the risk and disregard or a reasonable person would have been aware of the risk

4. Intoxication defense unavailableiv. Felony murder

1. Extends to any death occurring during the commission of (or attempted commission of) a felony and makes all co-felons equally guilty of murder

2. Extends to “inherently dangerous” feloniesa. Must be dangerous in the abstract, not as applied to the facts of the

caseb. Analyze whether felony can be committed without such dangerc. Robbery, rape, arson, burglary, and kidnapping are classic

“inherently dangerous” crimes3. Merger rule: felony must be independent of assaultive conduct which

results in deatha. State v. Shock : man beat boy and boy died death not guilty of 1st

degree murder (maybe manslaughter)b. E.g. voluntary manslaughter is a felony but can’t be used as felony

for felony murder conviction; however rape is an independent felonious purpose

4. Death must occur during felony or immediate flight therefroma. Factors:

i. Physical and temporal proximityii. Reaching temporary safety

iii. Still in possession of the fruits of the crimeb. People v. Gladman : shot police officer after robbery while fleeing

scene of crime before reaching safety5. Must show death is not too remote or accidental in occurrence (proximate

cause)a. State v. Martin : whether lighting fire in a lobby of apt building

caused the death of a drunk girl passed out in aptb. Must be logical nexus between felony and killing

i. People v. Cavitt : woman tied up and placed face down on bed during robbery and suffocated to death; defendants guilty

c. Some jurisdictions, felons guilty of any death that occurs during felonious acts

i. People v. Hickman : police officer killed by other police officer while chasing felons after robbery

b. First degree murder requires:i. Premeditation: decision to kill

ii. Deliberation: reflection on decision to kill (premeditation)1. Factors to show reflection:

a. Motive (revenge)b. Time (cooling off period)c. Planning activityd. Weapon’s origin

2. US v. Watson : had time between having gun and shooting police officer to decide not to shoot = premeditation and deliberation

iii. Specific intent crime: mental disease and intoxication are a defense to 1st degree murder

c. Manslaughter (lacking malice)i. Murder mitigated by a defense

1. Malice aforethought = reason; passion = deaf to voice of reason therefore less intent to kill aka less culpable or blameworthy

2. Victim’s actions play a role into making crime “less wrong”ii. Voluntary manslaughter:

1. Killed in the heat of passion upon sudden and adequate provocation (common law)

a. Adequate as both objective and subjective standardi. Objective: would a reasonable person under the

circumstances lose control?ii. Subjective: was the defendant sufficiently provoked?

b. People v. Walker : fight result of victim harassing defendant to gamble; defendant stabbed victim with his own knife

c. Adequate provocation includes:i. Male rage

1. Rowland v. State : caught wife in bed w/ another man and killed wife even though trying to kill man

2. Must witness or assume based on actions; hearing not enough

ii. Physical attackiii. Mutual combativ. Witnessing adulteryv. Attack on a close relative

vi. Such as would give rise to the heat of passion in the reasonable person under the same circumstances

d. Sudden means before the point at which the reasonable person

would have regained control (“cool-down”) and not the simmering build-up of a prolonged period of provoking events

i. Ex Parte Fraley : killed victim because victim killed his son 9-months previous; seeing victim incited passion not compelling; revenge is opposite of heat of passion

e. No “re-ignition” of passion once cooled down unless adequate events culminating in person reasonably losing it

i. People v. Barry : killed wife after she sexually and mentally tormented him; she started screaming right before he killed her

ii. Seeing is not enough; smirking may be enough, saying something about provoking action may be enough

f. Under common law: words alone are not enough to incite adequate provocation; conveying information not enough; epithets not enough

2. MPC: Heat of passion (more subjective)a. Killing must be under the influence of an extreme emotional

disturbance for which there is a reasonable explanation or excuse

b. No provocation is necessary (although may be sufficient) nor restricted to particular type of emotion

c. No requirement that the cooling down period be measured against an objective standard

3. Definition of “Reasonable person”a. A reasonable person shares the defendant’s demographics, but not

his emotional makeupb. Circumstances same as defendant encountered them

iii. Involuntary manslaughter: unintended killing based on negligence or recklessness (mitigation of unintended killing that manifests extreme indifference to the value of human life)

1. Common law: wanton or reckless conduct – grave danger to othersa. A willful and dangerous act resulting in death that involves a high

degree of likelihood that substantial harm will result to anotheri. Commonwe alth v. Welansky : fire exits blocked and over

500 people died; owner guilty for omissionb. No disregard of the risk is required – defendant could have failed

to perceive that risk when a reasonable person would havei. Objective standard: would a reasonable people have

understood risk?ii. State v. Williams : child died from tooth infection when

parents refused to take child to doctor – did not use subjective standard (parents = undereducated, afraid of authority taking their children as Indians)

2. MPC: reckless conducta. Conscious disregard of substantial and unjustifiable risk of death;

and

b. Conduct must have been a gross deviation from the standard of the normal law-abiding person

c. A person who fails to perceive that degree of risk cannot be guilty of manslaughter under the MPC

i. Subjective standard: defendant understood the degree of risk

5. Attempt: intending to but failing in commission of crimea. Mens rea

i. Purpose to commit the crime or engage in the proscribed conduct to achieve the proscribed result = specific intent

1. State v. Lyerla : impossible to intend reckless murder by shooting gun at car full of people

ii. Focused attention with intent to kill – line between extreme indifference and attempt to kill

1. People v. Stone : shooting into crowd of people is enough to show intent to kill

iii. Attempt requires same mens rea as needed for the substantive offense1. If the crime of assault and battery on a police officer includes an element

of knowledge that the victim is a cop, then a charge of attempted assault and battery on a police officer requires proof of knowledge or belief of that element

b. Act of attempt: how close to crime?i. Common law: dangerous proximity test; how much left to be done?

1. Analyze: a. The nearness of the danger (uncertainty of result), b. The greatness the risk of harm (gravity of the offense), and c. Degree of apprehension of the community/seriousness of

threatened danger2. Preparation vs. attempt: People v. Murray: calling magistrate is not same

as attempting wedding3. Not merely how close to committing the crime but how likely is the

successful commissiona. People v. Rizzo : only prep when they can’t find man they are

trying to rob4. Abandonment likely not a defense

a. Once you’ve gone far enough, you can’t go back: People v. Staples: drilling holes into floor of office above bank

ii. MPC: substantial step test; what has been done already?1. Attempt at point of substantial step toward the commission of the

offense, a step that corroborates the actor’s criminal purposea. Multiple acts can combine to corroborate the actor’s purposeb. Even acts in preparation can be a substantial stepc. Question for the juryd. Easier test to satisfy

2. Abandonment can be a defense; must have:a. Voluntary (not precipitated by others) and complete renunciation

of criminal purposei. Stop crime

ii. Renounce criminal purposec. Impossibility as a defense to attempted crimes

i. Common law: 1. Legal impossibility is a defense under common law

a. Underlying act is not a crime even if the actor believes it to be soi. Booth v. State : attempted to buy a “stolen” coat that was

recovered and therefore no longer stolenb. Did everything to complete the crime but crime not committed;

finished job but no crime committed2. Factual impossibility is never a defense

a. Interrupted attempt: can’t complete the crime because some fact actor is unaware of makes him unable to complete crime

3. Hybrid legal impossibility (focus here): even if completes the crime he intends to commit, he cannot commit it because one of the elements is missing and he’s mistaken about that element of the crime

a. Talk about completed offenseb. Legal definition of element of crimec. May be a defense depending on the jurisdictiond. Not a defense under MPC: focus on what actor believed at the timee. People v. Dlugash : shot at dead man – mistake of fact for an

element of the crime; jury could believe that he believed the victim to be alive at the time victim was shot

ii. MPC: impossibility not a defense1. Care about what the actor believes the facts to be at the time; cares

about culpabilitya. People v. Thousand : distributed obscene material to an undercover

police agent posing as a minor (legal impossibility) – still guilty even though there was no minor because they use MPC

6. Complicitya. Being an accomplice is not a crime, it is a theory of culpability

i. Accomplice is punished the same as the principle and guilty of the same crimeb. Accessorial act: aid and abet

i. Common law: act does not have to help much, but must actually assist1. State v. Ochoa : mob brought down sheriff, aiding in keeping deputy away

from protecting the sheriff2. State v. Tally : Judge sent telegram which disrupted the victim from

receiving warning of killers in pursuitii. MPC: aid, attempt to aid, agreeing to aid are all sufficient acts

iii. Mere presence is not sufficient without more – must do something or presence somehow aids in commission of the crime

iv. Can be liable for attempt of the crime if principle does not commit crimec. Mens rea (intent – specific mens rea)

i. Two mens rea elements:1. Purpose to facilitate the commission of the offense

a. Different than merely aiding perpetratorb. Only accomplice to crimes having purpose to assist

2. Share the mens rea of the perpetrator for the substantive crimea. Wilson v. People : setting up friend for burglary so that friend

would get caught – had intent to aid but not the intent for the underlying crime of burglary

ii. Question for the jury – knowledge plus assistance is enough to give rise to an inference of purpose

1. People v. Beeman : knowledge that friends were intending to rob his sister-in-law was not enough because he didn’t have the underlying mens rea for the crimes committed

iii. MPC provides for accomplice liability for unintended results (e.g. negligent or reckless mens reas); the common law does not

1. State v. Etzweiler : gave drunk friend keys to his car and friend killed people via diving recklessly due to intoxication

a. Common law – not guilty: can’t intentionally aid principle in crime he doesn’t know he is committing

b. MPC – only required to aid in the conduct that causes the result, must be accomplice to act which causes the death

d. Accomplice liability problemsi. If the perpetrator is not liable because he had an affirmative defense,

1. Liable if the defense was an excuse (e.g. insanity) 2. Not liable if the defense was a justification (e.g. self-defense)

ii. If the perpetrator is not guilty (aka innocent) because some element of the crime is missing, then no accomplice liability (there was no crime!)

iii. Perpetrator by means – a person who uses another as an unwitting agent to commit a crime is seen as a perpetrator

1. The conduct of the person assisting must be a factual and legal cause of the commission of the offense

iv. Accomplice can be guilty of a crime of greater or lesser culpabilityv. Which crimes are you liable for? (Spreads liability… not as greatly as conspiracy)

1. Common law: natural and probable consequences rulea. An accomplice to a crime can be liable for other crimes committed

by the perpetrators if they are the natural and probable consequences of the crime which he had the purpose to facilitate

i. Was the crime a foreseeable consequence of the assisted offense?

2. MPC: liable for crime perpetrator committed and accomplice intended to aid

e. Renunciation: accomplice can remove liability after providing assistance by: i. Terminating his assistance and wholly depriving it of effectiveness

1. State v. Formella : simply leaving duty agreed to perform is not sufficiently abandoning the complicity; must wholly deprive aid of its effectiveness

ii. Providing a timely warning to law enforcementiii. Otherwise making a proper effort to prevent the commission of the offense

7. Conspiracy (separate crime, not a theory of liability)

a. Act: agreement with another to commit a crime and the commission by one of the co-conspirators of an overt act in furtherance of the conspiracy

i. Common law: bilateral agreement – two or more people agreeing e.g. if one is a police officer, no conspiracy

ii. MPC: unilateral – only one actor e.g. one is police officer, still conspiracyiii. Agreement may be implied (by jury) but there must be an actual meeting of the

minds upon a common criminal object1. Griffin v. State : assaulted police officers called to scene of car accident,

acted in concert with other people there even though no express agreement laid out

2. Under MPC: in addition to agreement, there must be some overt act, but doesn’t have to be much; acting together alone is not enough to say agreement exists

3. Misdemeanors require act to show agreement but felonies do notiv. Termination of the conspiracy: ends when the criminal objective is achieved

(MPC & common law)1. US v. Reico : truck of drugs was apprehended by the police, but the

conspiracy still continued in order to catch co-conspirators; conspiracy may still exist and be punished whether or not the substantive crime ensues

b. Mens reai. Intent/purpose to agree = specific intent crime

ii. Purpose to commit the crime or achieve the criminal object of the agreementiii. Chamber of commerce defense: as long as the merchant does not have a stake in

the venture of the crime he knows is going to be committed and the crime is not a serious one, he is not a conspirator

1. People v. Lauria : knew his messaging service was used for prostitution but no indicated he agreed to further the crime

2. Factors to look for implied agreement (same for complicity):a. Stake in the businessb. No legitimate use for the goodsc. Volume of business disproportionate to legitimate demand

c. Liabilityi. Pinkerton Rule – federal & minority rule

1. Each co-conspirator is liable for all criminal acts committed by every other co-conspirator which are in furtherance of the conspiracy and reasonably foreseeable

2. US v. Diaz : defendant middle man between cocaine supplier and undercover police officer; other guy brought gun and defendant found guilty of the weapons possession charge as well

d. Withdrawal – can remove liability from crimes committed by other members of the conspiracy after the point of withdrawal

i. Remove from Pinkerton liability by notifying co-conspirators with direct statement of withdrawal or act likely to notify conspirators

ii. Not a defense, only removes liability for further actsiii. MPC allows complete defense if actor thwarts success of the conspiracy (actually)

– not often used8. Self-defense

a. Use of deadly forcei. Common law: reasonable and actual belief of imminent death or serious bodily

harm, amount of force used necessary to prevent harm or confront the danger1. If belief is unreasonable, than defense can mitigate murder to

manslaughter2. People v. Lavoie : defendant confronts 4 man who rear-ended his car and

shoots them; victim was lawless and disregarding defendant’s lifeii. MPC: actual belief that use of force is immediately necessary to prevent the harm

1. Mistake is reckless = manslaughter2. Mistake is negligent = negligent homicide

iii. Aggressor loses right to self defense1. People v. Gleghorn : defendant assaulted victim and lit fire under his bed,

victim shot back with arrow and defendant responded by beating victim badly; defendant lost right to use deadly force

2. Exceptiona. Abandoning confrontation made clear to other party but other party

pursuesb. If non-deadly force is confronted by deadly force by victim

b. Reasonable self defenderi. Subjective reasonable person – person must actually and reasonably believe that

the conditions exist which give rise to a claim of self-defense1. Put jury in the shoes and mind of the self-defender

a. State v. Leidholm : defendant and husband drinking and arguing, husband pushing her to the ground, defendant stabbed husband while he was sleeping

ii. Objective reasonable person – reasonable person under the circumstances1. Circumstances include prior experiences2. People v. Goetz : previously mugged man shot 4 unarmed boys because he

thought they were going to mug him on the subwayc. Duty to retreat

i. Common law: no duty to retreat in own home except when victim lives there tooii. MPC: no duty to retreat in own home or place of business

d. Law enforcement subject to constitutional limitationsi. Excessive force may be a violation of the 4th amendment: using deadly force to

stop a fleeing felon unless felon constitutes danger to officers or other people1. Tennessee v. Garner : shot kid robbing house in the back while he was

escaping; killing constituted illegal seizure; felon is not to be construed broadly