third third Flashcards
Necissity common law
choice of evils
The actor must be faced with a choice of evils or harms and he must choose to commit the lesser of the evils
Reasonable Belief: necessity
- The harm that D seeks to prevent must be greater than the harm he reasonably expects to cause
- Balancing of harm is conduct by the judge or jury; D’s belief that he is acting properly is not sufficient.
• In determining whether D chose the lesser of two evils
a reasonable person in D’s shoes, at the moment of decision, would have believed was the better choice.
o The after-the-fact unforeseeable reality is not relevant.
→ Don’t need proof that greater harm is averted, only that it
is REASONABLE that greater harm will be averted.
CL D justified in violating law if:
(1) Necessary (no adequate alternative)
(2) Immediate and clear harm averted (Dire)
(3) Significant harm averted [D believes he can abate harm. Harm must be significant]
(4) No effective legal way to avert harm [no purposeful killing of another]
(5) Reasonable belief that factual conditions for defense exist
[(6) Correct value judgment that harm believed to be averted is greater than that believed to be caused by conduct]
(7) W/o Fault- Not to blame for creating need for act
***Possible to not meet elements, as long as you reasonably believe that act is necessary and averted harm is greater, immediate, and significant.
MPC – §3.02 “CHOICE OF EVILS” JUSTIFICATION
a) The actor believes that the conduct is necessary to avoid harm to himself/another;
(b) The harm sought to be avoided is greater than the harm of the offense
(c) A statute does not say you can’t (legislative intent to exclude the justification)
If the actor was reckless or negligent in bringing about the emergency, the defense is unavailable
• Recklessness or negligence prove the actors guilt
Unlike CL, MPC does not say reasonably believed
If you made a mistake or brought about the situation yourself then the defense has limited application, but is not a complete bar.
Elements/Requirements of the defense: Necessity
- “Clear and imminent danger/harm” – actor must be seeking to avoid imminent harm, i.e., harm that appears likely to occur immediately.
a. This rule is strictly enforced: if there is sufficient time to seek a lawful avenue, the actor must take that. - Casual element—the actor must reasonably believe that his actions will abate the threatened harm
- Reasonable belief that the harm to be caused is less serious than the harm he seeks to avoid
- Actor is blameless—some jurisdictions require actor is not at fault in creating the necessity
Limitations to CL Necissity
- Unclear but probably NOT a defense to homicide
- Must be a situation created by nature forces (not due to actor’s fault or negligence)
- Only for protection of person/property
§3.02(1) → Compare specific harm avoided to abstract harm that would come from intended actions [up to finder of fact]
• Allowed if D actually BELIEVE preventing greater harm
o Must be right about which is greater harm
o Can be reasonably mistaken about certain facts
o Ex: how big lifeboat is or if the town will burn
§3.02(1)(b)+(c): Defense unavailable where specific situation has been addressed by code or legislature
§ 3.02 Limitations to Necessity
- Actor must believe conduct necessary to avoid evil.
- Nec. must arise from attempt by avoid greater harm/evil- equal or lesser harm≠ necessity.
- Balance of evils- determined by jury. (Even if genuine believe $> others life. Question for jury.
- No defense if issue of competing values already decided
§3.02(2) D does not automatically lose benefit of defense if he was at fault in creating the necessitous situation.
Ex: Reckless or negligent in belief that conditions are present → liable for acts w/ recklessness or negligence as culp but DEFENSE for crimes of P/K
• Ex: Statute says reckless; you drive recklessly and get run out of the road → not allowed to use defense b/c situation brought about in reckless manner
• “as the case may” = if you are negligent then you are charged with negligence but if you are reckless then you are both reckless and negligent
Nelson v. State—
— D convicted of reckless destruction of personal property and joyriding. D’s truck got stuck in a marshy area off of the highway in the middle of the night and he was afraid it would tip over. He took 2 vehicles from the Highway Dept. w/out permission. He damaged them trying to free his truck. He had no success and just went to sleep until he was found. Held: The defense of necessity may be raised if D’s actions (though unlawful) were necessary to prevent an even greater harm from occurring.
Three essential elements: of necessitt
) the act charged must have been done to prevent a significant evil;
2) there must have been no adequate alternative;
3) the harm caused must not have been disproportionate to the harm avoided.
D is correct that defense is available if person acted in reasonable belief that emergency existed and there were no alternatives even if that belief was mistaken. There is no reasonable belief that this was an emergency here—D had alternatives and he knew it.
The Queen v. Dudley and Stevens
3 men and a 17 year old youth were stranded on a lifeboat. After about 3 weeks (during most of which time they were without food or water) 2 of the men killed the youth, who was very sick, so that the survivors could eat his remains in order to survive. The two men who participated in the killing were prosecuted for murder. The court rejected their necessity claim. Court said, “it is not suggested that in this particular case the deeds were ‘devilish,’ but it is quite plain that such a principle, once admitted, might be made the legal cloak for unbridled passion and atrocious crime.” Public policy~ people might use this defense in the future to hide behind when they have in fact committed an atrocious crime.
Argument for Partial Defense Even If No Belief
- Persons, who try to do wrong, but do not, shouldn’t be punished as much as those who actually do wrong. (Attempts punished less than completed offenses).
- Those who engage in prohibited conduct but, unbeknownst to them are justified, have tried to do wrong, but have not.
Therefore, they should be punished less
MPC necessity is a defense to murder..
but only when need for killing is to prevent greater harm (can’t have equal alive and dead) → Cannot take 1 life to save another 1 life.
Necessity no defense to murder [Dudley and Stephens]
“Double effect”
some cases of causing the death of one to save another is acceptable; you can’t act with the intent or purpose of taking an innocent life but you can act in a way that will result in that effect so long as it is not your purpose
• Goal is to kill (murder) vs. Death is known side effect (involuntary) = same result but can’t have purpose of killing innocent.
• Distinguishes between purpose and knowledge
• Ex: dropping bombs in town to destroy factory vs. trying to destroy people
Interpretations: Never justifiable at CL to
kill an innocent person een to save a greater number of lives
Conjoined Twin Case and Roman Catholic “double effect”
- One should not cause effects that are directly evil even if they are thought to be a necessary means to a greater good
- if the purpose is to do something permissible or good, even if the effect is death→ the death is permitted, not intended, and is not itself a means to save someone, but rather an unintended side-effect.
- This explains the conjoined twin case—the intent was to save Jodie (not kill Mary). Mary’s death was a side-effect
Where killing of innocent is reasonably believed necessary to save more than one life:
- Murder (traditional CL)
- Murder only is sufficiently possible that privilege will be abused (CL-policy argument)
- Murder only if killing is part of plan/purposeful (CL-conjoined twins)
Neciessity limitations in some states
- Situations created by natural forces [ex: tornado]
- Does NOT apply to homicide cases
- Only for protection of persons and property
- If at fault for bringing about situation, NO defense.
Excuse Defenses (SEE NEXT PAGE)
• Admit that act may be wrong, but excuses actor b/c conditions suggest that actor is not responsible for act
• Negates moral blameworthiness of actor for causing harm
• Human force (opposed to necessity defense: natural force)
General defense; applicable to all offenses even though elements of offense are satisfied
VIEW 2 “Majority view”:
DURESS
- No fair opportunity to comply with law (no free choice)
- It would be hypocritical to send you to jail; we would have done the same in your shoes.
- Retributivists: It was wrong but the actor is not responsible for his action
- Utilitarians: It was wrong, but punishment will not do any good (no deterrence
CL: excuse if yielded under imminent threat of death of SBH
MPC: excuse yielded if threat greater than person of reasonable firmness could handle.
Causation Theory
person should not be blamed for her conduct if it was caused by factors outside her control. Not blamed for being mentally ill or victim of coercion.
Choice theory
people should be punished for bad choices. Where people act based upon pressure of duress, it’s not a standard bad choice b/c person has not had a fair opportunity to practice his free will. Need fair opportunity to (1) understand facts (2) appreciate violation of societal mores (3) conform conduct to law
Duress CL
- Another person threatened imminent serious bodily injury or death to her/another
a. threat must be deadly
b. lesser threat, such as to cause minor physical injury or to cause economic or reputational harm, will not suffice
c. deadly force threatened must be “present, imminent, and impending.”
i. (must be operational on the actor’s will at the time of the criminal act”
d. no reasonable lawful alternative to acceding to the threat - reasonable belief/fear that the threat will be carried out
a. coercer is serious
b. coercer has the capacity to inflict the harm immediately - no reasonable opportunity to escape the threatened
Duress mental element
reasonable belief that if you don’t act in a particular way you’ll be subject to bodily harm
[Limitation: threat must be to you or close [family] member; only applies to body integrity; limited to threats of unlawful force, not applicable to coercion from natural sources]
§2.09(1) It is an affirmative defense Duress
because he was coerced to do so by the use of, or a threat to use, unlawful force against his person (or another), that a person of reasonable firmness in his situation would have been unable to resist.
• No defense for recklessness
MPC duress treats duress as
an excuse defense. Must show that:
(a) he committed an offense because he was coerced to do so by another person’s use, or threat to use, unlawful force against him/another; and
(b) a person of reasonable firmness would have committed the offense.
MPC Duress is
1) “deadly threat” and imminency requirements of CL do NOT apply
2) permits duress claim to be based on prior use of force and not simply a threat of future harm
3) threat of force must be unlawful (like in CL)—limited to human caused coersion
4) The force used or threatened need not be deadly, as required at CL. Any form of physical harm will suffice.
5) But, like in CL economic threats or threats to reputation will not suffice
6) A person of reasonable firmness in D’s situation would have been unable to resist the coercion.
7) No bar to use of duress for homicide
United States v. Contento-Pachon SUFFICIENT EVIDENCE OF DURESS FOR JURY—not necessity
D charged w/ unlawful possession of cocaine w/ intent to distribute. Sought necessity and duress defense due to alleged threats against him (kill his family) by his employer if he did not follow orders. HELD: Necessity defense cannot apply b/c D’s acts were coerced by human, not physical forces nor did he act to promote general welfare to society. Duress defense DOES apply.
Intolerable Prison Conditions
• originally courts did not permit inmates to raise prison conditions as a defense to their escapes
• today it is recognized as a limited defense
o some courts require the escapee to turn herself in after the escape or the defense is automatically lost
o other courts are more lenient and treat an escapee’s failure to turn herself in as just one factor to be considered by the jury in determining whether escapee should be acquitted (People v. Unger)
People v. Unger NECESSITY APPLIED TO PRISON ESCAPE CASE
People v. Unger NECESSITY APPLIED TO PRISON ESCAPE CASE
D escaped confinement after threats by an inmate with a knife to engage in homosexual activities. D did not report the incident to the authorities out of fear of retaliation. D had already been assaulted and sexually molested by 3 inmates. On the day of his escape, he received a call on an institution phone and the caller threatened his life if he reported the assault to prison authorities. D claims that he left the prison to save his life and planned to come back after he could get someone to help him. HELD: Necessity defense, rather than duress, applies to the prison escape case. D was not deprived of free will of imminent physical harm, but rather, was forced to choose b/w 2 evils (escaping prison or sexual assault).
Duress & Murder Defense?
• Full Affirmative Defense?
o No
• Negate Malice aforethought, so manslaughter?
o No – misdirected retaliation doctrine.
• Defense to premeditated murder?
o Yes, if it negates premeditation
• Felony Murder?
o Yes, if defense to felony will disable FMR
• Depraved heart murder?
o Possibly, if it negates conscious indifference to the risks
People v. Anderson~ when confronted with an apparent kill an innocent person or be killed situation
a person can always choose to resist. The law should require everyone to seek an alternative to killing—even if the result is your own death
Duress is usually
Duress is NOT an affirmative defense to murder [Anderson] (However, CL- may still raise a FOP claim)
• M1 = Duress may negate premeditation – if it results in the killing not being premeditated
-case by case analysis
- gun to head and say Kill right now, if not
that immediate would still have time to
reflect and then no defense.
• Intent-to-kill murder = not an affirmative defense. Does not negate malice aforethought.
• M2 = Duress WON’T reduce it to manslaughter. -
• But could make a failure of proof claim (no malice) and get reduced that way.
• Depraved heart murder = Duress may negate anti-social motive; lack of justification; if are acting to save own life –may not have wanton disregard [footnote i p.599]
o Defense insofar as it may negate consciousness or bad motive
• FMR = Duress may be defense to felony if it negates the underlying felony → disable FMR
Involuntary intoxication can be a defense:
Lack of mens rea: As the result of involuntary intoxication, the actor lacked the requisite mental state of the offense for which he was charged. Here, involuntary intoxication is a valid failure of proof claim to crimes of specific intent AND general intent.
Four circumstances where Intoxication is involuntary (MPC 2.08(5)(c)):
- Coerced intoxication (such as forced at gunpoint)
- Innocent mistake resulting in intoxication (such as spiked food)
- Unexpected intoxication from prescribed medication, perhaps due to an allergic reaction
- “Pathological intoxication” (the actor’s intoxication is “grossly excessive in degree, given the amount of intoxicant, to which the actor does not know is susceptible.”)
Actor at the time of his conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] due to involuntary intoxication. MPC 2.08(1)
• A person is not guilty of a specific-intent offense, if as the result of voluntary intoxication,
he lacked the capacity to form the specific mental state required for the crime, however, voluntary intoxication does not exculpate for general-intent offenses.
Intoxication and Homicide:
In many jurisdictions, where first degree murder includes “willful, deliberate, premeditated” killing, and D introduces evidence that because of intoxication he did not meet these requirements, crime may be reduced to second-degree murder. Felony Murder (see Graves)
Commonwealth v. Graves FALIURE OF PROOF
They claimed that they should not be liable b/c they were intoxicated. Held: if evidence indicated they were so intoxicated that they did not have the intent, then they could not be convicted. Here, intoxication was a failure of proof defense. Robbery is a specific intent offense. If D is so intoxicated that he does not form the specific intent to rob, he is not guilty of robbery and therefore not guilty of felony-murder.
MPC §2.08 INTOXICATION
Does not distinguish b/w “general intent” and “specific intent”. Voluntary Intoxication is a defense to any crime if it negates an element of an offense. MPC 2.08
MPC intoxication exception
Exception: If recklessness suffices to convict, if the defendant’s actual culpability is that of negligence —she should have been aware that her conduct created a substantial and unjustifiable risk of harm, she can be convicted of offenses requiring recklessness (which usually requires actual awareness) if the reason for her failure to perceive the risk is her self-induced intoxication. MPC 2.08(2)
Recklessness in getting intoxicated is transferred to the offense.
INCHOCATE OFFENSES—ATTEMPT
After formation of MR, before attainment of goal; unfinished crime; allows police to arrest before crime is actually committed
An attempt occurs when a person
with the intent to commit a criminal offense, engages in conduct that constitutes the beginning of the perpetration of, rather than mere preparation for, the target offense.
Where do you draw the line for an “overt act” ?
Attempt Actus Reus Policies:
Advantages of earlier line:
• Permits earlier decisive intervention
• Deter persons from “testing waters”
Advantages of later line:
o More evidence of culpability
o Provide greater chance to change mind
o Maximize liberty
- Punish offenders who intend to commit a crime, and act to implement that intent but do not achieve their goal
- Complete but imperfect
actor performs all acts set out to do but fails to attain criminal goal (firing gun at A but missing)
• Incomplete – actor does some of acts to achieve criminal goal, but quits or is prevented from continuing (police arrive before completion of attempt)
Grading of Offense: most states treat criminal attempt as
a lesser offense than the target crime—generally punished about ½ as severely as the target offense
“Last Step” Test
A criminal attempt occurs only when a person performs all of the acts that she believes are necessary to commit the target offense. (This is undesirable b/c it makes it impossible for the police to prevent the target offense). Today, general agreement is that attempt occurs at least by the time of the last act, but no jurisdiction requires that it reach this stage on all occasions.
Commonwealth v. Peaslee – an application of last step test—`
D was convicted of an attempt to burn a building with intent to injure the insurers. D arranged combustibles and a candle in a building so that it could be lit and the building would set on fire. He offered to pay an employee to light the candle and set the building on fire, but he refused. Later D and the servant drove towards the building, but, about a quarter of a mile before he got there, D changed his mind, and they turned back. Rule/Holding. Last-step test failed b/c he turned around.
“Physical Proximity” Test
Conduct must be the first or some subsequent step in a direct movement to the commission of the offense after preparations are made. It needs to go so far that without the interruption of any external factors (and not something within the actor’s control), the step taken will result in the commission of the crime it was designed to effect.
“Dangerous Proximity” Test
More flexible than the physical proximity test. A person is guilty of attempt when her conduct is in dangerous proximity to success or when an act is so near to the result that the danger of success is very great. The more serious the offense, the less close the actor must come to completing the attempted offense.
3 factors that courts consider to find proximity:
1. the nearness of the danger that there was a reasonable likelihood of its accomplishment
2. the greatness of the harm
3. the degree of apprehension felt
People v Rizzo- an application of dangerous proximity test—
Four armed men drove around looking for V, whom they expected would be withdrawing a large sum of money from the bank. They entered various buildings looking for V. Suspicious, 2 police officers placed the men under surveillance. Finally, the suspects were arrested when one of them entered another building. V was not present where the arrest occurred. Held: The victim was not in sight or even found so they were not dangerously close to success, and therefore, not guilty of attempted robbery.
“Indispensable Element” Test
Variation on proximity tests but emphasizes the indispensable element over which the actor has not yet acquired control (i.e., ballot- for ballot fraud). No attempt if the actor has not yet obtained control of an indispensable feature of the criminal plan. (i.e., Does not have the weapon yet).
Pros: easier to apply than the dangerous proximity test
Cons: arbitrary. The presence or absence of indispensable elements often says little about the actor’s culpability or firmness of intentions.
Probably desistance test
The actor has proceeded past “the point of no return.” The point past which an ordinary person, with a criminal intent, is likely to abandon her criminal endeavor.
Unequivocally” Test (Res Ipsa Loquitur)
An act does not constitute an attempt until it ceases to be equivocal. An attempt occurs when a person’s conduct, standing alone, unambiguously manifests her criminal intent.
People v Miller Unequivocally
People v. Miller D threatened to kill V, whom D accused of harassing his wife. Later, D went armed with a rifle to a field where C, the local constable, and Vwere working. D walked in the direction of C and V, stopped loaded his rifle but did not aim it, and resumed his approach. At some point either before or after D loaded his weapon V fled at a right angle from D’s line of approach. Ultimately, C took possession of the rifle without resistance. Held: that D was not guilty of attempted murder, because “up to the moment a gun was taken from the D, no one could say with certainty whether he had come into the field to carry out his threat to kill V or merely to demand his arrest by C. “so long as the equivocal quality remains, no one can say with certainty what the intent of the D is.”
Abnormal Step
→ any step toward a crime is an abnormal one. Circular approach. Would a person think that at this point they have done more than they should? If they think they have done more than they should, that means they have done more than they should.
• Asks the jury, is this the type of thing that you would feel normal doing?
• A step taken that departs from the conduct of the normal citizen
5.01 Overt act requirement
1) how far come, how well established intent.
2) how well deserving of punishment from intent based perspective.
3) Future dangerousness.
4) Evidentiary function explicit: conduct must be evidence of the offense.
5) intended to cast net wider to catch more dangerous persons.
6) MPC focuses on what has been done and how far you’ve come [rather than what’s not been done yet which is focus of CL] Reeves
7) Must be strongly corroborative of actor’s criminal purpose. Includes (but not limited to):
5.01(2) examples of substantial steps:
a) lying in wait, searching for or following the contemplated victim of the crime;
(b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;
(c) recommending the place contemplated for the commission of the crime;
(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;
(e) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances;
(f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances.
(g) soliciting an innocent agent to engage in conduct constituting an element of the crime
State v reeves substantial step
State v. Reeves SUBSTANTIAL STEP
Two 12-year old girls tried to kill their teacher with rat poison. Word of their plan reached principal. When the girls’ teacher walked into the room, the girls were leaning over her desk giggling. Shortly after, they were called to principal’s office where sheriff found rat poison in one of girls’ purse. Held: delinquent, guilty of attempted second-degree murder. When an actor possesses materials to be used in the commission of a crime, at or near the scene of the crime, and where the possession of those materials can serve no lawful purpose of the actor under the circumstances, the jury is entitled, but not required to find that the actor has taken a “substantial step” toward the commission of the crime if such action is strongly corroborative of the actor’s overall criminal purpose. *****
Dual Intent: Mens Rea attempt
1) The actor must intentionally commit the act that constitutes the actus reus of an attempt,
a. EX— he must perform an act that brings him in dangerous proximity to commission of the target offense
2) The actor must commit the actus reus of an attempt with the specific intent to commit the target offense (this is the critical mens rea issue in attempt prosecutions)
a. An attempt may require a higher level of mens rea than is necessary to commit the target offense
b. Attempt is a Specific Intent offense even if the target crime is general-intent (i.e., rape is general intent but attempted rape is specific intent)
Attendant Circumstances- it is unclear what mens rea, if any, an actor must possess regarding an attendant circumstance to be guilty of attempt. Courts split
- Some courts hold that a person may be convicted of a criminal attempt if he is at least reckless with regard to an attendant circumstance
- Other courts believe that it Is sufficient that the actor is as culpable regarding an attendant circumstance as is required for that element of the target offense.
People v. Gentry – NO ATTEMPTED MURDER; NO INTENT TO KILL
D spilled gasoline on girlfriend’s body and it ignited when she went near a stove. D smothered the flames but girlfriend was already severely burned. Jury convicted D of attempted murder. The trial court, in its jury instruction, provided a definition of attempt and then a definition of murder which included alternative states of mind in the definition of murder. D appealed, arguing that the trial court erred in its jury instruction by including various mental states of murder in its definition of the crime. Held: conviction reversed. The intent necessary for attempted murder is the specific intent to kill—which the evidence in this case did not support.
Bruce v. State Three men walked into a shoe store. One of them, Bruce (D), masked and armed with a handgun, ordered the owner to open the cash registe
. Bruce demanded to know where the money was and, pointing a gun to his head, said that he was going to kill him. The owner tried to get out of the way, bumped into Bruce, and Bruce shot him in the stomach. A jury found D guilty of attempted murder, guilty of robbery with a deadly weapon, and guilty of two handgun charges. On appeal, D argued that attempted felony murder was not a crime in Maryland. The Court of Appeals reversed. Held: Criminal attempt is a specific intent crime and a conviction of felony murder requires no specific intent to kill. Therefore, attempted felony murder is not an offense (in this jurisdiction, as in the majority).
To secure a conviction for first degree under the felony murder doctrine,
State must prove specific intent to commit the underlying felony; it is not necessary to prove a specific intent to kill or to demonstrate the existence of willfulness, deliberation or premeditation.
Note: we cannot have attempted involuntary manslaughter
b/c you don’t have the specific intent required for murder (if any crime at all it would be a reckless endangerment).
MPC MENS REA ATTEMPT
person must act w/ the culpability otherwise required for commission of crime.
AND
(a) purposely engage in conduct that would constitute the crime if the AC were as he believed them to be
OR
(b) does or omits to do anything w/ purpose of causing or w/ belief that it will cause such result w/out further conduct on his part
OR
(c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
MR for attendant circumstances: must be at least that level of culpability as required in underlying crime (Statutory rape that requires a mens rea of recklessness to the AC of age would require a mens rea of recklessness for attempt).
Impossibility
Issue: actor presumably has the requisite mens rea and has done everything in his power to commit the target offense, but the outcome will definitely fail b/c the circumstances make it impossible for the actor to succeed in committing the offense.
Factual Impossibility
not a defense
→ person’s intended end constitutes a crime, but she fails to consummate the offense b/c of an attendant circumstance unknown to her or beyond her control.
Ex. Pickpocket putting hand in pulling the trigger of an unloaded gun aimed at a person with intent to shoot them.
Inherent” Factual Impossibility – (may be a defense)
o Method to accomplish the crime was one that a reasonable person would view as completely inappropriate to the objectives sought.
o Ex. Trying to sink a battle ship with a popgun./voodoo
o Objectivist view: the law should recognize inherent-impossibility as a defense If conduct would appear harmless to a person of normal understanding, no societal apprehension will occur, and therefore, punishment is unjustified (also, no tangible harm occurred).
o Subjectivist view: actor is no less morally blameworthy because she has chosen an inherently impossible way to consummate the offense so inherent-impossibility should not be a defense
Legal Impossibility – defense (most jurisdictions don’t recognize).
• Occurs when the actions which the D performs or sets into motion, even if fully carried out as he desires, would not constitute a crime.
Pure Legal Impossibility – (a defense)
- When the law does not proscribe the goal that the D sought to achieve.
- Ex. D attempts to sell “bootleg” liquor after the repeal of prohibition, so she is not guilty of an attempt even though she thinks what she is doing is illegal.
- Reasoning: we should not punish people for conduct that does not constitute the charged offense at the time of the action.
Hybrid Legal Impossibility – (a defense; typically , but trend to abolishment)
- Exists if the actor’s goal is illegal, but commission of the offense is impossible due to a factual mistake regarding the legal status of some attendant circumstance that constitutes an element of the charged offense.
- Ex. shooting already dead person (A mistake about the fact but relates to a legal status)
- Any case of hybrid legal impossibility can be reasonably characterized as factual impossibility.
- Subjectivist view: defense should be abolished b/c the actor’s dangerousness is revealed in these cases.
- Objectivist view: defense should not be abolished. The acts appear innocent on their face so there is no societal apprehension caused by the conduct. When conduct is objectively innocent, it is more difficult to infer criminal intent.
People v. Thousand: NO ATTEMPT; HYBRID LEGAL IMPOSSIBILITY. D
. D enters an Internet chat room and “converses” with V, who D believes is an underage female but who is actually an undercover adult male decoy. He can’t be convicted of distributing obscene materials to a minor since V was not a minor.
“If the actor’s goal is illegal but commission of the offense is impossible due to a factual mistake regarding the legal status of some attendant circumstance that constitutes an element of the charged offense.
Abandonment
when the actor crosses the line from preparation to perpetration of an offense but abandons the criminal conduct before consummation of the target offense.
Abandonment as a defense today
What must you do?
to the extent that it is recognized today, it applies only if the D voluntarily and completely renounces her criminal purpose.
→ voluntary = result of repentance of a genuine change of heart
→ involuntary = motivated by unexpected resistance
→ can’t claim abandonment as a defense, even if the actor’s desistance is motivated by genuine remorse and is complete, once she has preformed the last act necessary to commit the offense.
- Unclear if recognized as affirmative defense
- Fact of abandonment may be evidence of lack of MR or AR (Faliure of Proof Claim)
- Some support for can’t abandon after last act
Commonwealth v. McCloskey ABANDONMENT: FALIURE OF PROOF
D made a prison break but changed his mind and never left the detention facilities. Majority states that D did not have the MR or AR necessary to commit the offense. Concurring opinion held that D abandoned his attempted breakout and this was an affirmative defense and therefore D is not guilty. Voluntary abandonment of an offense can be a failure of proof defense or affirmative defense to an offense
Renunciation (Abandonment) §5.01(4)
• an affirmative defense
• a person is not guilty of an attempt if:
o (1) she abandons her effort to commit the crime or prevents it from being committed; and
o (2) her conduct manifests a complete and voluntary renunciation of her criminal purpose.
• Available only for result crimes [not conduct - once D has completed conduct, harm has been done and there is nothing left to abandon]
MPC not voluntary if
partially or wholly motivated by “circumstances, not present or apparent at the inception f the actor’s course of conduct, that increase the probability of detection or apprehension of that make more difficult the accomplishment of the criminal purpose.
MPC Abandon completely does not mean that you will never take up crime again. Just means at that
time, you do not plan to pursue the crime on anyone else at another place or on another person. (You may abandon at point A and then take up the same crime at time B, still have complete abandonment).
• -Renunciation under MPC can be abandonment in whole or part
Accomplice Liability
→ person who does not actually commit a crime may be held accountable for conduct of another if he intentionally assists in that conduct (derivative liability)
→ one who intentionally assists in an offense is, by way of accomplice liability law, guilty of the offense in which he assisted.
• A person may be held accountable for conduct of co-conspirator who commits a crime in furtherance of their agreement.
• S = accomplice of P in commission of an offense if intentionally assists P to engage in conduct that constitutes crime
• Assist = aiding, abetting, encouraging, soliciting, advising, and procuring the commission of the offense.
Accomplice Liability mens rea
(1) Intent to aid or encourage Principal (P) to commit the crime. AND
(2) MR required by definition of the offense to be committed
Does intent mean Purpose/Knowledge?:
• some courts say purpose
• others say if purpose, may be inferred from knowledge plus.
• Most courts hold that person not an accomplice in commission of offense unless he shares criminal intent of the principal; must be a community of purpose in the unlawful undertaking. [ex: phone service for prostitutes; he is not trying to further their business = no purpose)
Negligence v. Recklessness: Accomplice Liability
• Minority: legally impossible to intend crime of R or N.
o Exception: The prosecutor does not have to prove that A intended a crime of recklessness to occur; enough that A was reckless in regard to the ensuing harm; same for negligence
• Majority: can convict if :
(1) intent to assist; AND
(2) mental state required by crime are present.
Attendant Circumstances MR: AL
To satisfy AC MR requirement, you must have:
(1) Purpose to assist in conduct; AND
(2) MR required by result; AND
(3) MR(AC) required by underlying offense
Natural and probable consequences doctrine
A person encouraging or facilitating the commission of a crime may be held criminally liable not only for that crime, but for any other offense that was a ‘natural and probable consequence of the crime aided and abetted: w/in normal range of outcomes that may be expected to occur if nothing unusual intervened.
State v. Linscott (Natural and Probable Consequences Doctrine)
D agrees to rob a drug dealer with other defendants who had guns. He agreed to break window for co-d to stick a shotgun through the window to scare drug dealer. Instead, co-d shot and killed drug dealer. D was charged with murder under accomplice liability. Rule/Holding. There is a four step process the jury must use to decide whether the CL natural and probable consequences doctrine applies in a particular offense.
Four step process
- Primary party committed target offense?
- If so, jury determines complicity to that offense?
- If so, primary party committed another crime?
- Whether the latter crime(s)—though not originally contemplated—were natural-and-probable consequences? (reasonably foreseeable?)
Jury’s 4 Questions
- Did D1 commit target crime? If yes….
- Was D2 an accomplice in target crime? If yes…
- Did D1 commit any other crimes? If yes….
- Were those crimes reasonably foreseeable? If yes…
o D2 is accomplice to other crimes.
MPC Cupabilitt
Purpose of promoting or facilitating the commission of the offense §2.06(3)(a)
Knowledge not enough
2.06(4) Negligence v. Recklessness:
When causing a particular result as an element of a crime, a person is an accomplice in the commission of the offense if:
(1) he was an accomplice in the conduct that caused the result; and
(2) he acted with the culpability, if any, regarding the result that is sufficient for commission of the offense.
Accomplice Liability [see §2.06]
§5.01(3) –person may be convicted of criminal attempt, although crime was neither committed nor attempted if:
• purpose of conduct is to aid another in commission of offense; and
• assistance would have made D an accomplice in commission of crime under code’s complicity statute
Attendant Circumstances MR: To satisfy AC MR requirement,
(1) Purpose of AC; OR
(2) MR(AC) required by underlying offense.
(purposefully ambiguous—resolution to be left to the courts)
Riley v. State (MPC) (MPC adopted and Echols standard rejected)
Charged w/1st Assault; recklessly causing serious injury under accomplice liability. In general, a defendant cannot be held criminally liable for the other persons conduct unless the state provides that the defendant acted “with intent to promote or facilitate the common of the offense.” However, underlying offense defined on unintended results.Rule/Holding. aa
Under MPC 2.06(3)(a) To be an accomplice the person must act
“with the purpose of promoting or facilitating the commission of an offense” Same result
Summary - How to be liable for an offense:
• As a principle
o Through own conduct
o Through conduct of innocent agent [Δ causes X to engage in conduct that he is aware of]
• As an accomplice
o Through solicitation of principle
o Aiding, agreeing, or attempting to aid principal
o Having a legal duty to prevent commission of offense and failing to do so w/ intent to facilitate offense, or
o Conduct is expressly declared by law to establish complicity
Assist, solicits, or encourage (or fail to perform legal duty)
TYPES OF ASSISTANCE:
(1) Assistance by physical conduct
(2) Assistance by psychological influence
-incitement, solicitation, encouragement
-mere presence not enough (UNLESS coupled with encouragement)
• If S incites/solicits/encourages P to commit crime [includes prior agreement to assist, and presence at the scene; even if no assistance at actual scene]
• Knowledge and mere presence at crime scene could NOT support conviction for accomplice liability b/c ≠ sufficient affirmative act to satisfy AR requirement of accomplice liability [Vailancourt – attempted break in]
• Peripheral Assistance [presence coupled w/ very little else] will justify a finding of accomplice liability based on psychological encouragement [Wilcox v. Jeffery – saxophonist]
(3) Assistance by omission
(assuming duty to act: failing to prevent a crime, failure to report to police, property owner, parent, etc.)
Assistance attempt is
NO enough. Assistance must be effectual. Words of encouragement must be heard
Causation → it does not matter how trivial the assistance.
The assistance does not need to be “but for” cause. An accomplice can be liable even if the offense would have been committed anyway. (Wilcox)
CL Innocent Instrumentality: A person is the principal if
w/ MR required for commission of the crime he uses a non-human agent or dupes an innocent/non-culpable human agent to commit the crime.
CL Acquittal of P
OLD RULE: Accessory (A) cannot be convicted of crime until P is convicted of crime.
OLD RULE: Accessory (A) cannot be convicted of crime until P is convicted of crime.
→ Jury finds crime never occurred and acquits P→A acquitted (no guilt to derive)
→ Jury acquits P on grounds that he was justified → A acquitted b/c she aided in a justified (proper) act U.S. v. Lopez
→ Jury acquits P on grounds of an excuse→A may still be liable (P’s excuse claim is personal to him)
HOMICIDE: P & A may be convicted of differing degrees.
CL Degree of Punishment : OLD RULE: A could not be convicted of more serious offense/higher degree of an offense than P.
EXCEPTION: A could be convicted of a higher degree of criminal homicide than P.
People v. McCoy~MUST CONSIDER MENS REA SEPARATELY FROM P
McCoy/other D were convicted of 1st degree murder for a drive by shooting. McCoy appealed on the basis of a claim of imperfect self-defense. D’s murder conviction was then reversed on the basis that an accomplice cannot be convicted of a higher degree of an offense than P. The People appealed and court ruled that once it is established that P caused an actus reus, the liability of each of the secondary parties should be assessed according to his own merits. Even though the actus reus is the same the individual levels of guilt may be different.
Both make the following point - both illustratic accomplice liability in that they both involve a P who didn’t want to do it and an accomplice who didn’t want it. Secondary requirement has a higher mens rea than the primary party. Even if no intent in the usual sense, it was intent plus the usual offense
MPC: Conduct §2.06 (3)(a)(i-iii) Purpose of promoting/facilitating commission by:
(1) Soliciting commission of offense
Attempting to solicit ≠ complicity
(2) Aiding, agreeing to aid, or attempting to aid in
planning/commission
Agreeing to aid = complicity even if S does not fulfill promise.
(3) Omitting when there is a legal duty to prevent commission
(w/ purpose of promoting or facilitating commission of offense)
MPC permits greater liability than CL
→only need to agree to aid (need to actually aid under CL)
→A is liable if he tries to aid but fails to aid (would not be under CL)
Attempting to aid is enough
MPC Innocent Instrumentality
A person is guilty of an offense that she did not personally commit if, acting with the requisite mens rea, she “causes an innocent or irresponsible person” to commit the crime. MPC 2.06(2)(a). THIS IS EQUIVALENT TO CL INNNOCENT INSTUMENTALITY RULE.
MPC Degree of punishment
Accomplice may be convicted of a different crime or different degree than P. (2.06(7)) But if there has been no offense or P was justified then A is not liable
§2.06(6) Not accomplice in offense committed by another person if:
a. He is victim of that offense [ex: parent of kidnapped child who pays ransom]
b. Offense is so defined that his conduct is inevitably incident to its commission [ex: purchaser of narcotics is not an accomplice in commission of sale or delivery of controlled substance]
c. Δ terminates complicity prior to commission of offense and
o Wholly deprives it of effectiveness in commission of offense;
o Gives timely warning to law enforcement; or
o In some manner attempts to prevent commission of crime
MR required to be accomplice in regard to AC
o Deliberately ambiguous - -either purpose or MR of underlying offense
o Expect Courts to resolve ambiguity as it arises.
State v. V.T. [868] (CL) (must be an active participant to be an accomplice—mere presence does not suffice)
CL: AR: aiding and abetting
State v. V.T. [868] (CL) (must be an active participant to be an accomplice—mere presence does not suffice)
Facts. V.T. and other co-d went to a relatives house. Items were stolen from the relatives house and pawned at a local pawnshop. There was footage from a stolen camcorder showing V.T. and other co-d discussing pawning the stolen camcorder. V.T. never spoke or gestured during any of the footage. V.T. was found guilty of theft in juvenile court under accomplice liability. Appealed.
Issue. Whether “mere accompaniment” is sufficient to establish actus reus requirement for crime?
Rule/Holding. “Crime necessitates some active participation by the accomplice … presence alone does not satisfy affirmative acts requirement”
Rules of aiding and abetting
2 Rules: (1) mere presence (nothing additional) is not enough as a matter of law (2) Insofar as your presence may encourage or lend some moral support, then you CAN be liable as an accomplice
Wilcox v. Jefferey AIDING AND ABETTING FOUND/OMISSION
Facts. Wilcox was charged with violating the Aliens Order act of 1920. A Coleman Hawkins came to the UK to perform (saxophone player). Wilcox did not arrange his visit, but he greeted him at the airport, went to his performance, paid for the performance, and applauded. He also wrote an article in his newspaper about him. He arguable encouraged the criminal offense by paying for the performance and applauding.
Rule/Holding. Wilcox had the actus reus (presence + payment as encouragement) and mens rea (he knew that Hawkins was in violation of the Aliens act)
Bailey v. Commonwelth INNOCENT AGENT DOCTRINE
Bailey (D) purposely agitated Murdock, then told him to get his handgun and wait outside on his porch for Bailey (D) to come over and injure or kill him, Murdock was shot by the police after D called them to report a man on Murdock’s porch waiving a gun around. HELD: One who effects a criminal act through an innocent unwitting agent is a principal in the 1st degree.
NOTE: No accomplice liability here b/c (1) lack of liability to derive by the police (2) lack of common scheme or goal.JUSTIFICATION OF POLICE DOES NOT GET IMPUTED TO BAILEY: HE DOES NOT GET ADVANTAGE OF IT b/c HE SET UP THE WHOLE SITUAITON.
Person innocent?
Agent?
→ If yes, his conduct gets imputed to your conduct + your mens rea.
CL/MPC: 3 ways to Be Liable for Innocent Party Doctrine
Principle:
-you satisfy AR requirement MPC sec. 2.06(1), or
-your innocent agent satisfies AR requirement, MPC sec. 206(2)(a)
Accomplice:
-your culpable agent satisfies AR Requirement, MPC sec. 206(3) &(4)
DEFENSES: A person is NOT and accomplice if:
(1) S is the member of a class for whom the statute prohibiting the conduct was enacted to protect. (Legislative Exemption)
(2) A abandons criminal endeavor and can avoid subsequent acts P. Spontaneous and unannounced withdrawal is not enough. A must communicate his withdrawal to P and make bona fide efforts to neutralize the effect of his prior assistance.
GAP PLUGGED MPC § 2.06(3)(2)(a)(ii) and 5.01(3):
Conduct designed to aid another in commission of a crime→ guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person. Liability for Genoa.
State v. Foster MENS REA
When D and Cannon went out looking for the man who had raped Foster’s (D’s) girlfriend, the found Middleton, who was later fatally stabbed by Cannon, using a knife D gave Cannon to guard Middleton. HELD: A person may be liable as an accessory to a criminally negligent act if he has the requisite culpable mental state for the commission of the substantive offense and he intentionally aids another in the crime.
DEFENSES: A person is NOT and accomplice if:
(1) S is the victim of the offense (Legislative exemption like in conspiracy) 2.06(6)(a)
(2) S’s conduct is “inevitably incident” to the commission of the offense 2.06(6)(b)
(3) Abandonment: S terminates participation before crime is committed AND
(A) neutralizes his assistance, OR
(B) gives timely warning to the police of the impending offense, OR
(C) in some way prevents commission of the crime 2.06(6)(c)
