CRIMINAL LAW OUTLINE Professor DeWolf Fall 1991 By: Kell Bodholt Jeff Alexander Javan Bernstein Table of Contents I.Purposes of Punishment: 1 A.Retribution 1 B.Deterrence/Utilitarian 1 C.Incapacitation 1 D.Rehabilitation 1 II.The Vagueness Doctrine 1 III.Actus Reus 2 IV.Minimum Conduct Requirements and Voluntaryness 4 A.Must distinguish voluntary acts from involuntary acts. 4 B.Involuntary Acts 5 C.Involuntary acts combined with voluntary acts 5 V.Mens Rea 5 A.Culpability 5 B.Ignorance or Mistake of Fact 10 C.Ignorance or Mistake as to Criminality 11 D.The Significance of Intoxication 11 E.Attempt 12 VI.Liability for the Conduct of Another 13 A.Complicity 13 B.The Conduct Required For Complicity 14 C.The Culpability Required for Complicity 14 D.Guilt of the Principal (Accomplice Liability) 15 E.Conspiracy 16 VII.JUSTIFICATION AND EXCUSE 18 A.Justification 18 B.EXCUSE OR DURESS 22 VIII.CRIMINAL RESPONSIBILITY 22 A.Immaturity 22 B.Insanity Defense 23 C.The Federal Standard 26 D.The Insanity Defense and Intoxication 26 E.Abolition of the Insanity Defense 27 IX.SUBSTANTIVE OFFENSES UNDER THE MPC 27 A.PRELIMINARY 27 1.ARTICLE 1. PRELIMINARY 28 2.ARTICLE 2. GENERAL PRINCIPLES OF LIABILITY 28 3.ARTICLE 3. GENERAL PRINCIPLES OF JUSTIFICATION 28 4.ARTICLE 4. RESPONSIBILITY 28 5.ARTICLE 5. INCHOATE CRIMES 29 6.ARTICLE 6. AUTHORIZED DISPOSITION OF OFFENDERS 29 B.OFFENSES INVOLVING DANGER TO THE PERSON 29 1. ARTICLE 211. ASSAULT; RECKLESS ENDANGERING; THREATS 29 2.ARTICLE 212. KIDNAPPING AND RELATED OFFENSE; COERCION 29 3.ARTICLE 213. SEXUAL OFFENSES 29 C.OFFENSES AGAINST PROPERTY 30 1.ARTICLE 220 - ARSON, CRIMINAL MISCHIEF, AND OTHER PROPERTY DESTRUCTION 30 2.ARTICLE 221 - BURGLARY AND OTHER CRIMINAL INTRUSION 30 3.ARTICLE 222 - ROBBERY 30 4.ARTICLE 223 - THEFT AND RELATED OFFENSES 30 5.ARTICLE 224 - FORGERY AND FRAUDULENT PRACTICES 30 I. Purposes of Punishment: 1.Retributive 2.Utilitarian A. Retribution 1.It ought to be punished - two views a.Blameworthiness b.Proportionality B. Deterrence/Utilitarian 1.Cost of penalty outweighs burden on person willing to accept the penalty. a.Special Deterrence: Deterring a particular criminal from repeating his crime. b.General Deterrence: Deterring others from committing the crime. C. Incapacitation 1.Admission of failure of the system a.Death b.Incarceration D. Rehabilitation 1.Make criminal more productive members of society. II. The Vagueness Doctrine A. Definition: A statute on its face or in its application must give fair and adequate notice of what conduct is prohibited so that person of average intelligence may conform their conduct accordingly. Fair warning should be provided as to what is considered a crime. 1.Facial Challenges: Standing to challenge for others. A person who knows, but since others may not know, the courts grant review to determine if void on its face. 2.Application: Levy; Didn't know it applied to you. III. Actus Reus A. Definition: Requirement of a voluntary act. Distinguished from; (1) thoughts and words, states of possession, (2) involuntary acts, e.g., sleep walking, and (3) omissions. B.Conduct Must be in the Definition of the Offense 1.Depends upon the statutory construction (strict or liberal). See Keeler, and Sobiek. a.MPC  1.02 - Purpose (1)Fair impart of the terms. (2)Further the purpose of the code. Reassure freedom from arbitrary prosecution. C. Omissions 1.Definition: A completely distinct effect of the actus reus requirement is to prevent criminal liability from arising from most omissions to act (as distinguished from affirmative actions). 2.Omissions arise in several different circumstances which give rise to a "Legal Duty" (mere moral obligation will not do): a.Statutory duties (1)MPC  220.1(3): Arson; Statutory duty for failure to put out a fire. b.Status relationships (1)Regina v. Instan: Niece had duty to aid aunt when living with her enjoying house and food. (2)Duration of relationship is important (drunk, pump and dump). Court held no legal duty because of one nightstand relationship. c.Contractual Obligations (1)Jones v. U.S.: Baby sister liable for babies death from malnutrition when hired by mother. d.Creation of the Risk e.Voluntary undertaking the rescue. 3.Possession a.Its an act and also an omission. Acquisition, possession, failure to get rid of it. b.MPC  2.01(4): provides that, "possession is an act . . . if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession." 4.Attempt as an Act a.MPC Approach: MPC  5.01(1); "An overt act" going beyond preparation of the crime and takes a "substantial step" strongly corroborative of the actors criminal purpose. b.Common Law Approach (1)The Last-Proximate-Act Doctrinea)The Last Act Doctrine: The person does all they can do to complete the act in order to accomplish the crime. (2)The Physical-Proximity Test: Physical proximity of the actor's conduct to the completed offense. The focus here is not on what has already been done but on what yet remains to be done to complete the crime. (3)The Indispensable-Element Test: Under this view,no attempt can be committed if the actor has yet to acquire control over an indispensable element of the criminal endeavor. (a)No attempt when required cooperation by third persons had not taken place. (4)The Dangerous-Proximity Test: The issue of the actor's nearness to completion of the offense is subsumed in a broader inquiry that also encompasses the gravity of the harm threatened, the degree of apprehension aroused, and the probability that the conduct would result in the intended offense. (a)"Dangerous proximity to success" in the actor's conduct. (5)The Res-Ipsa-Loquitur Test: Looks to what the actor has done, rather than what remains to be done. (a)Focus is on the dangerous propensities of individuals. A criminal attempt is an act which shows criminal intent on its face. The conduct must show "unequivocal evidence" of the actor's blameworthiness. IV. Minimum Conduct Requirements and Voluntaryness A. Must distinguish voluntary acts from involuntary acts. B. Involuntary Acts 1.Physically Coerced Movement: A pushes B into C who is hit by a car. B has engaged in no "act" at all, for the "act" is attributed to A, not B. B is not liable. 2.Reflex Movements 3.Muscular Contraction or Paralysis Produced by Disease a.Disorders of the central nervous system, i.e., epilepsy and chorea, stroke. 4.Unconsciousness: Ordinarily involves a cessation of most motor functions, i.e., stroke, epilepsy, narcolepsy, or other neurophysiological disturbance. 5.Forms of Impaired Consciousness a.Concussion b.Somnambulism c.Hypnosis and Hypoglycemia 6.MPC  2.01: Must be a voluntary act or omission to perform an act which person is physically capable of performing. C. Involuntary acts combined with voluntary acts may not preclude criminal liability. Ex: People v. Decina, D had epileptic seizure while driving and kills kids. Held liable for negligent homicide. V. Mens Rea A. Culpability 1.Definition:Requirement of a "guilty mind" or "mens rea" is essential predicate for the imposition of criminal liability. The act is not guilty unless the mind is guilty. 2.Material Elements of an Offense must be Proved Beyond a Reasonable Doubt. a.MPC: The mental state required as to each element of offense, may not all be the same. (1)MPC  2.02(3): Where the culpability sufficient to establish a material element of an offense is not prescribed by lay, such element is established if a person acts purposely, knowingly, or recklessly with respect thereto. (Reckless is the default setting if language does not state specific intent required). b.Common Law: Single state of mind is required for all elements of the offense. (1)General v. Specific Intent: Mens rea requirements are either general,specific, or negligence. (2)General Intent: "All that must be shown is that the defendant desired to commit the act which served as the actus reus." Ex. Simple assault. (3)Specific Intent: "The defendant in addition to desiring to bring about the actus reus must have desired to do something further." Ex. Burglary c.Significance of Distinction: Intoxication and mistake of law or fact may negate a specific intent crime for failure to have ability to form specific intent but still have the ability to form the specific intent to commit the crime. 3.Presumptions of Intent a.Definition: the jury is permitted beyond a reasonable doubt to infer from "basic facts" the presumed fact. Since it is often quite difficult to prove beyond a reasonable doubt that a defendant did something with a particular state of mind, judges allow these. b.Common Law (1)Boiler Plate Jury Instruction: presumption that a man intends the natural and probable consequences of his acts. (a)Natural and Probable Consequences: can be interpreted either of two ways: i)Evidentiary Test - looks at the offenders state of mind with a presumption of culpability. Will hear testimony and consider other evidence to determine the offenders state of mind. ii)Non-evidentiary Test - does not look to the offenders state of mind. Only looks at the act done, and if the offender had the capacity to commit such a crime. Then hold strictly liable. 4.Culpability and Different State of Mind under the MPC  2.02. a.Four Distinct States of Mind that may give Rise to Culpability. (1)Purposely (2)Knowingly (3)Recklessly (4)Negligently b.Each term is defined in relation to each objective element of an offense, i.e., conduct, attendant circumstances, or result. 5.Purposely - MPC  2.02(2)(a) a.Definition: a person acts purposely with respect to a particular element of a crime if it is his conscious object to engage in the particular conduct in question, or to cause the particular result in question. Can act purposely with respect to attendant circumstances if the offender is aware of their existence or believes or hopes they exist. b.Distinguished from Intentionally (1)Pre-code statutes use the word intentionally instead of purposely. Intentionally means a desire to bring about the results or result is certain to follow. c.Distinguished from Malice (1)Malice has always been used to denote intentional plus reckless conduct,i.e., conduct taken in disregard of a known high probability of risk. Most decision have held that neither negligence of the fact that the defendant was engaged in some other unrelated crime is enough to establish that he acted maliciously with respect to the harm that in fact occurred. See Regina v. Cunningham and Regina v. Faulkener. d.Conditional Intent (1)MPC  2.02(6)f: The defendant may intend to commit a particular act only upon a certain condition. If so, shall he be deemed to have "intended" that act? The MPC, in  2.02(6), provides that the existence of such a condition is irrelevant, "unless the condition negatives the harm or evil sought to be prevented by the law defining the offense." 6.Knowingly a.Definition: Distinguish between acting "purposely" and merely "knowingly." A person acts "knowingly" under the Code, with respect to the nature of his conduct or the surrounding circumstances, if he is "aware" that his conduct is of a certain kind or that certain circumstances exist. If the crime is defined with respect to a certain result of the defendant's conduct, the defendant has acted knowingly if he was "aware that it is practically certain that his conduct will cause" that result. MPC 2.02(b). b.Willfully: Statutes sometimes us "willfully." The MPC holds that a person to have acted willfully, it is not necessary that he acted "purposely"; it is sufficient if he acted "knowingly," unless the statute indicates otherwise MPC  2.02(8). c.Subjective Test: The MPC imposes a subjective test for determining the defendant's knowledge. That is, the test is whether the defendant actually knew or believed something, not merely whether a reasonable person in the position of the defendant would have had that knowledge or belief. Effect is that defendant can show he was stupid or gullible, and may escape having knowledge imputed to him. d.Presumption of knowledge: A statutory/judge made presumption may be used to prove "knowingly." Example: D charged with possession of stolen bonds. Statute requires that D knew the bonds were stolen. Presumption is that mere possession infers the D knew that it was stolen. 7.Recklessly a.Definition: A person is said to act 'recklessly," under the MPC when h "consciously disregards a substantial and unjustifiable risk ..." Substantial and unjustifiable risk is were the risk "must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation." MPC  2.02(2)(c). (1)MPC applies Subjective Standard: Where actor must be aware of the high risk. (2)Others - Objective Standard: Actor behaves extremely unreasonable, disregard the high risk of harm, even where actor was unaware of the high risk of harm. 8.Negligently a.Definition: A person is negligent when he should be aware of substantial and unjustifiable risk. The risk must be of such a nature and degree that the actor's failure to perceive it considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. 9.Strict Liability a.Definition: These are crimes for which no culpable mental state at all must be shown; it is enough that the defendant has performed the act in question, regardless of his mental state, e.g., statutory rape and bigamy. b.The issue often arises whether the legislature intended strict liability or omission of an mens rea requirement. (1)Morisette v. U.S.: D took empty bomb shell casing, in order to sell. Not a strict liability offense because common-law larceny included an intent element. (2)If strict liability is imposed as to any material element of an offense, the offense can only be a "violation" under MPC  1.04(5) is a minor offense, does not constitute a crime, may be punished only by fine or forfeiture. B. Ignorance or Mistake of Fact 1.Definition: Ignorance or mistake of fact is a defense if, and only if, it shows that the defendant did not have the mens rea required for an element of an offense. 2.Common Law a.General Intent - defendant must show that his mistake was both honest and reasonable. b.Specific Intent - defendant only had to show that his mistake was reasonable. (1)US v. Short - honest mistake as to consensual sex, no matter how unreasonable, was a defense to a specific intent crime of assault with intent to commit rape. c.Burden of Proof (1)Common Law Issues: (a)defendant must prove conduct was reasonable, or honest and reasonable. (b)distinction between MPC's mens rea of recklessness and the common law general intent requirement. Under the MPC the prosecution must show a gross deviation from the reasonable person. (2)MPC (a)prosecution must show that the defendants conduct satisfied the mens rea required for the offense. (b)defendants burden under the MPC is to show that he was unaware of the risk. (c)MPC  2.04 - mistake as to fact is a defense if it negative purpose knowledge, belief, recklessness, or negligence required to establish a material element of the crime. C. Ignorance or Mistake as to Criminality 1.Common Law - No excuse a.Should have an innate sense of right and wrong. b.To allow a defense as to ignorance or mistake would encourage ignorance (Holmes). 2.MPC  2.04 - mistake as to criminality is a defense if it negative purpose knowledge, belief, recklessness, or negligence required to establish a material element of the crime. 3.MPC  2.02(9) - mistake as to criminality is not an element of the crime unless specifically provided in the code. The prosecution does not have to prove knowledge of existence, meaning or application of the law. D. The Significance of Intoxication 1.Whether a defendant's intoxication should be taken into account when determining the mens rea of the offense and whether it can be determined a defense. a.Voluntarily Induced - may argue: (1)that he would not have committed the crime if he had not been intoxicated and therefore that he should not be punished merely because her was drunk. (2)intoxication prevented him from having the requisite mens rea for the crime. (3)did not know right from wrong, and should therefore be treated like an insane person. b.Involuntarily Induced - may argue (1)the fact that the state generally was not foreseeable, even though the ingestion was intended, prevents the intended commission of the act and therefore exculpates him from the crime. 2.Common Law a.General Intent Crimes - intoxication has no exculpatory value. Majewski. b.Specific Intent Crimes - may negative specific intent to commit the crime. (1)Restrictive - defense is only available in cases of murder. Chittum (2)Evidentiary - drunkenness may affect ability or capacity to form specific intent. (3)Defendant's Burden c.Dangerous Intoxication Offense - suggested as a separate offense. Test would be: Would the defendant be aware of the risk if he had not been voluntarily intoxicated. 3.MPC  2.08 - Intoxication is not a defense unless it negatives an element of the crime. E. Attempt a.Evolution of Attempt Doctrine - "all offenses of a public nature, that is, all such acts or attempts as tends to the prejudice of the community, are indictable" as misdemeanors. However a misdemeanor could be punished severely. b.Attempt in the US - statutes making specific attempted conduct criminal. The early statutes graded attempt at about half of the completed offense. Assault with intent statutes added to available punishment. c.MPC  5.05(1) - treats all attempts as severely as the completed offense, except for 1st degree attempts, which are punishable as 2d degree felonies. Eliminates the need for assault with intent crimes. Also retains inchoate crimes such as robbery, larceny, etc. 1.Mens Rea of Attempt a.Thacker - "an attempt to commit a crime is composed of two elements: (1) the intent to commit it; and (2) a direct, ineffectual act done toward the its commission. The intent is just as necessary to be proven as the act itself, must be found as a matter of fact before conviction can be had. b.Rationale: (1)goal directed behavior (2)some behavior is not dangerous in itself, but is only a portent of dangerous things to come. c.MPC - distinguishes between conduct, circumstances and results. The common law had a problem with the circumstances part. It required a defendant to have knowledge of the circumstances whereas the code makes the additional penalty a strict liability crime. d.Explanation of the MPC:  (1)(a) and 1(b) should be read separately from (1)(c). (a) and (b) cover cases where the actor engages in all of the planned behavior; (c) concerns cases where the actor stops or is interrupted before the planned behavior is completed. Together, (a) and (b) requires a specific intent to engage in conduct punished as criminal. (1)(a) requires purpose for conduct elements of the object offense, and (1)(b) requires purpose for result elements of the object offense. VI. Liability for the Conduct of Another A. Complicity 1.Common Law a.Principles - divided into first degree (actual perpetrator) and second degree (present for the crime). b.Accessories - could be (a) before the fact (aiding, commanding, encouraging) or (b) after the fact (assisting felon to avoid apprehension, trial, or punishment). c.Common law rules have turned to everyone being principles, but the evidentiary aspects may remain that in order to prove that one is an accomplice it must be shown that someone has actually committed a crime. 2.MPC  242.3 - Distinction between accessories before the fact and principles has been abrogated by statute while principles and accessories after the fact have remained. No such thing as an accessory after the fact. It is hindering prosecution under the code. B. The Conduct Required For Complicity 1.Common Law - If a person present at the commission of a crime . . . shows his assent to such commission he is guilty as a principle, and . . . the lack dissent may sometimes show assent. Rex v. Russell C. The Culpability Required for Complicity 1.The defendant himself must have some association with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed." US v. Peoni and Backun v. US. 2.MPC  2.06 - For Liability the aider must have "the purpose of promoting or facilitating the commission of the offense." [Stake Required]. a.Criminal Attempts MPC 5.01(3): A person who's conduct aids or abets another to commit a crime which establishes his complicity under 2.06, and the other committed the crime, your guilty of an attempt to commit the crime. b.N.Y. is in between the MPC limitations creating a new crime, "criminal facilitation.": "believing it is probable" that another will commit a felony, he provides "means or opportunity" which aids in the commission. 3.Aiding and abetting: "To be an abettor the accused must have instigated or advised the commission of the crime or been present for the purpose of assisting in its commission. He must share the criminal intent with which the crime was committed." People v. Durham. 4.Natural and Probable Consequences a.Common law; "The liability of an accomplice includes the natural and probable consequences of the criminal endeavor that he meant to aid or encourage." b.MPC; abandons the Common Law and states; "for accomplice liability, the accomplice must have " the purpose of promoting or facilitating the commission of the offense." D. Guilt of the Principal (Accomplice Liability) 1.Abandonment of Derivative Liability: "Whatever the merits of the matter, " the approach in Cogan is becoming the prevailing view: "the mens rea of the primary actor is irrelevant to the liability of a secondary participant in criminal conduce....Obviously this amounts to a rejection of the common- law tradition of regarding the liability of secondary parties as derivative from the quilt of the primary actor." [Don't fall into trap of thinking that accessories can't be convicted if principals are not?] COMMON LAW: Since B is not guilty of any crime, A cannot be guilty on an accomplice theory. he might, however, be a principal in the second degree, since he was "present" at the scene. He could also be charged with attempt. There would be an impossibility problem, however. Question of whether it's factual or legal impossibility. MPC: A might be guilty as an accomplice to burglary. He is an accomplice under 2.06(3)(a)(i) and (ii). (i) provides accomplice liability for solicitation; and (ii) for attempting to aid another person in planning or committing the offense. One might think that since there is no crime committed by B, no accomplice liability. However, the opining sections of 2.06 refer to being liable for "the conduct of another person." It is the accomplice's mental state that supplies the mens rea; the actus reus is supplied by the other." Here the entry of the building [but with purpose to commit a crime?] was accomplished by B; A had the mental state, and so could be found guilty. He is guilty of attempt under 5.01(a), since he "purposely engaged in conduct which would constitute the rime if the attendant circumstances were as he believed them to be." He might also be guilty under (c), since he "purposely did something which under the circumstances as he believed them to be was an act or omission constituting a substantial step in a course of conduct planned to culminate in he commission of the crime." [But is it his commission of the rime? Yes, because as an accomplice he would be guilty.] 2.Limits of Accomplice Liability a.Legislature must intend the accomplis be liable. The act must create the offense of being an accomplis. Ex: Rape statute was to protect women from men. Regina v. Tyrrell. E. Conspiracy 1.Introduction: Definition of "conspiracy": The common-law crime of conspiracy is defined as an agreement between two or more persons to do either an unlawful act or a lawful act by unlawful means. At common law, the prosecution is required to show the following elements: a.Agreement: An agreement between two or more persons. b.Intent: Intent to enter into the agreement and an objective to carry out an act which is either unlawful or which is lawful but to be accomplished by unlawful means; c.Mens rea: a culpable intent on the part of the defendant. ( In some situations, this requirement means that even if the defendants intended to carry out an act which is in fact unlawful, they cannot be convicted of conspiracy unless it is shown that they had an "evil" or "corrupt" motive. 2.MPC  5.03(1): The MPC unilateral approach to conspiracy instead, of common law approach, makes it possible for A to be convicted of conspiracy. Under 5.03(1) liability is established with respect to any given actor, in contrast to the traditional approach of requiring agreement between two or more persons. 3.Most modern codes, as does the MPC, define conspiracy in terms of single actor agreeing with another, rather than as an agreement between two or more persons. Such an approach is justified in that a man who believes that he is conspiring to commit a crime and wishes to conspire to commit a crime has a guilty mind and has done all in his power to plot the commission of an unlawful purpose. 4.The MPC departs from the traditional view of conspiracy as an entirely bilateral or multilateral relationship in favor of a unilateral approach. The Code definition of conspiracy requires agreement by the defendant but not agreement between two or more persons, and one consequence of this is that an inconsistent disposition or verdict in a different trial will not affect a defendant's liability. 5.For conspiracy, as for attempt, it is useful to distinguish among CONDUCT, RESULT, AND CIRCUMSTANCE ELEMENTS. CONDUCT: The state of mind required by conspiracy for the conduct elements of the underlying substantive offense is rarely in dispute. An agreement to engage in certain conduct necessarily includes the intention that the conduct be completed. RESULTS: It is possible to agree to engage in conduct that would cause a forbidden result without specifically intending that result occur. It is well settled that conspiracy requires an actual purpose to cause a proscribed result, even where the underlying substantive offense would allow conviction on proof of lessor culpability. CIRCUMSTANCES: The only real issue in this area is whether the inchoate offense of conspiracy imposes special mens-rea requirements with respect to the attendant circumstances of an actor's conduct. The implication is that conspiracy should require that the actor be aware of the attendant circumstances of the contemplated conduct, even where the completed offense would require no such awareness. THE ALTERNATIVE ANSWER IS DERIVED FROM THE MPC APPROACH TO THE MENS REA OF ATTEMPT. UNDER 5.01 CIRCUMSTANCES ELEMENTS REQUIRE ONLY the kind of culpability otherwise required for commission of the crime. RENUNCIATION AND WITHDRAWAL: The MPC has proposed that renunciation be recognized as a defense to conspiracy on similar terms as it is for attempt. 5.03(6) of the MPC provides a defense if the "actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under the circumstances manifesting a complete and voluntary renunciation of his criminal purpose. WITHDRAWAL: Does not exculpate the actor from liability for the conspiracy, but it would limit the actor's liability for substantive offenses committed by co- conspirators after the actor's participation had ceased. CONSPIRACY AND ATTEMPT are two separate offenses according to the MPC. LAURIA: COMPLICITY => The intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal activity connected with the use of his supplies may be established by (i) direct evidence that he intends to participate, or (ii) through an inference that he intends to participate based on (a) his special interest in the activity, or (b) the aggravated nature of the crime itself. PINKERTON: One conspirator may be guilty of accomplice liability by aiding and abetting crimes committed by the other conspirators. In addition, however, a separate doctrine called the Pinkerton rule provides that each conspirator is liable for the crimes of all other conspirators if 2 requirements are met: 1. The crimes were committed by one conspirator in furtherance of the objectives of the conspiracy; and 2. The crimes were a "natural and probable consequence" of the conspiracy, i.e., foreseeable to the non-acting conspirator. Pinkerton was rejected by the MPC in that under Pinkerton you can be held liable for both the underlying substantive crime as well as the conspiracy and under the MPC only the conspiracy if you did not aid or abet in the substantive offense. VII. JUSTIFICATION AND EXCUSE Introduction: If justification is proved, conduct which would otherwise be a crime is not crime at all, e.g., killing in self-defense or assault pursuant to lawful authority. Excuse is essentially a limitation on conduct. The conduct is still a crime, but the circumstances are such that punishment is inappropriate. A. Justification 1.Elements: a.An emergency, which is; b.so imminent and compelling as to raise a reasonable expectation of harm; c.there is not reasonable opportunity to avoid the injury; and d.the injury must be of sufficient seriousness to outmeasure the criminal wrong. 2.MPC 3.01 and 3.02 3.Effect of Mistake to Justification a.The effect of a mistake (1)Common Law; (a)Reasonable mistake will not negate the privilege. (b)Unreasonable mistake will negate all justification defenses. (2)MPC 3.09 (a)MPC requires to all defenses that the defendant really believe (whether reasonably or not) that the facts are such that the defense is merited. The only exception to this rule is that; if the defendant is prosecuted for an act that may be committed "recklessly" or "negligently, " he will lose the defense if the mistake was reckless or negligent. 4.Necessity a.Greater harm: The harm sought to be avoided is greater than the harm committed (or, in any event, the harm which the defendant thinks he is committing). b.No alternative; There is no third alternative that would also avoid the harm, and would be non-criminal or a less serious crime. c.Imminence; The harm is imminent, not merely future. d.Situation not caused by the defendant. The situation has not been brought about by D's carelessly or recklessly putting himself in a position where the emergency would arise e.Nature of Harm; Harm sought to be avoided is not usually req. to be seriously bodily harm. May be non-serious bodily harm or even property damage. 5.Self Defense (Defense against Aggression) a.Generally: Right to defend one's self against use of unlawful force. Defense maybe by means of deadly or at other times non-deadly force. The defense is complete - can result in acquittal of homicide, assault, attempted murder, assault and battery, etc.. b.Elements (1)Resist unlawful force; Defendant must have been resisting the present or imminent use of unlawful force. (2)Force must not be excessive; The degree of force used by the defendant must not be more than is reasonably necessary to defend against the threatened harm. (3)Deadly force; The force used by the defendant may not be deadly (i.e., likely to cause death or serious bodily injury, unless the danger being resisted was also deadly force). (4)Aggressor; Defendant must not have been the aggressor, unless; (a)He was a non-deadly aggressor confronted with the unexpected use of deadly force. (b)He withdrew after his initial aggression and the other party continued to attack. (5)Retreat; Defendant must not have been in a position from which he could retreat with complete safety, unless; (a)The attack takes place in defendants dwelling or by the modern view, his place of work; or (b)The defendant uses only non-deadly force. c.MPC 3.04 (1)Use of deadly force; 3.04(2)(b): Deadly force is not justified unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse. (2)Effect of Mistake: So long as he reasonably believes the use of deadly force was necessary he will be protected. d.Common Law Treatment: Reasonable fear of bodily harm would justify the use of deadly force. e.Effect of Mistake: If the defendant makes a reasonable mistake about the unlawful status of force being used against him, he will nonetheless be protected. 6.Defense of Property a.Generally; One has a limited right to use force to defend one's property against wrongful taking. b.Elements; (1)Non-deadly force; Non-deadly force may be use to prevent a wrongful entry upon ones real property and the wrongful taking of ones personal property. (2)Limited to reasonable degree; The degree of force used must not be more than appears reasonably necessary to prevent the taking. (3)Subsequent use of deadly force; If one begins using a reasonably degree of non-deadly force and the wrong doer responds with a personal attack, then the rules governing self defense come into play. Thus it may be permissible to use deadly force to protect ones self. Crawford v. State. c.MPC  3.06 (1)The use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary: (a)to prevent or terminate an unlawful entry or other trespass...., or (b)to effect an entry or re-entry upon land or retake property.... (2)Use of Deadly Force is not justifiable unless requirements of  3.06(2)(d) are found. 7.Defense of Others a.Generally; Defendant must meet the following requirements to assert a claim of defense of others. b.Elements; (1)Danger to other; He reasonably believes that the other person is in imminent danger of unlawfully bodily harm. (2)Degree of force; The degree of force used by the defendant is no greater than that which seems reasonably necessary to prevent the harm. (3)Belief in another persons right to use force; The defendant reasonably believes that the party being assisted would have the right to use in his own defense the force that the defendant proposes to use in his assistance. c.MPC 3.05 B. EXCUSE OR DURESS 1.Generally; A defend can be said to have committed a crime of duress if; (1) he performed it because of a threat of, or use of, force by a third person sufficiently strong that the defendant's will was overborne. The term applies to force placed upon the defendants mind not his body. 2.Elements; a.Threat; A threat by a TP. b.Fear; Which produces a reasonable fear in the defendant. c.Imminent danger; That he will suffer immediate or imminent d.Bodily harm; Death or serious bodily injury. 3.MPC 2.09(1); Whether the threat was sufficiently great that "a person of reasonable firmness" in [the defendant's] situation would have been unable to resist." VIII. CRIMINAL RESPONSIBILITY A. Immaturity 1.Common Law a.Under 7: Children under 7 are conclusively presumed to have no criminal capacities. b.7 - 14: Presumed to have no criminal capacity, but this presumption maybe rebutted by a showing of malice or awareness of the wrongfulness of the conduct (eg., attempting to conceal a crime). c.Over 14: Treated the same as adults for purposes of criminal capacity. 2.Legislation/Juvenile-Court Movement: (1) They have raised the age as high as 16; (2) JV courts have established crimes otherwise punishable committed by adults are handled by sending juveniles to reformatories (rehabilitation). a.Magic age is between 14-18; adult jx. is barred below 14, and JV court jx is barred above 18. The critical question is whether they are amenable to treatment. 3.Mens Rea: Most courts hold that no requirement of capacity need be shown, but rather a showing of mens rea and actus reus. 4.MPC 4.10: Immaturity excluding criminal conviction; Transfer of proceedings to JV Court. a.Under the age 16 he can't be convicted unless JV court has no jx or JV court has waived its jx. When the court determines that a criminal proceeding is bared, it will transfer the case including all papers and processes relating to the case to criminal court. B. Insanity Defense Introduction: If the defendant can show he was insane at the time he committed the criminal act, he may be entitled to the verdict "not guilty by reason of insanity." Its justification is that were the defendant's mental disease has prevented him from distinguishing between right and wrong, or from controlling his conduct the punishment and deterrence object of the criminal law would not be served by convicting. 1.M'Naghten "right-wrong" Rule: The defendant should be presumed to be sane, unless he proves that, at the time he acted he was laboring under such a defective reasoning, from disease of mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. a.To establish the M'Naghten Defense must show: (1)mental defect or disease; that he suffered a mental disease causing a defect in his reasoning powers; and (2)Result: as a result either; (a)he did not understand the nature and quality of his act; or (b)He did not know his act was wrong. b.What is a mental disease: The fact the defendant is a psychopathic or sociopath does not mean that he has the requisite mental disease. These terms refers to a history of criminal behavior and do not mean that a defendant has different mental functions than a normal person. Courts have refused to allow a mere history of repetitious acts to be considered as a kind of mental disease. Otherwise the insanity defense will swallow up the criminal justice system. c.Meaning of to "Know": Courts have not made it clear whether to "know" was used solely in the cognitive sense or in the emotive sense as well. (1)Emotive Sense/Volitional: Defendant did not understand the wrongfullness of his conduct even though he may have a rational awareness that society condemns it, i.e., when murderer could show that he believed that god told him to kill he could claim the insanity defense. (2)Cognitive: A much stricter requirement; Defendant knew he was killing the victim, but didn't know it was against the law and the mental disease caused him to it was not against the law. d."Nature and quality of his act": A defendant cannot be said to appreciate the nature and quality of his act if he does not know the physical consequences that will result from his act. Ex: If defendant knew that pressing the trigger would discharge a bullet, which might cause death, then he would appreciate the nature and quality of his act and would not be entitled to the insanity defense. e."Knowledge that the act is "wrong": If the defendant realizes that the conduct is legally prohibited he will also realize that society regards it as morally wrong, so the question is whether the defendants own belief that the conduct is morally acceptable meets the M'Naghten test. f.Criticism of M'Naghten Test: The test is too narrow, and that the law should regard as insane not only those defendants who do not "know right from wrong", but also those who might have such knowledge, but who are incapable of obeying the law anyway. This has led 50% of jx's to accept the insanity defense for the latter group. Basically, the MN rule does not allow a finding of insanity if the defendant understood the difference between right and wrong, but was unable to control his conduct. 2.Irresistible Impulse Test (a/k/a Control Test): Generally, it has been sufficient that the defendants ability to control himself was substantially impaired and that the defendant lost his ability to chose. 3.Durham "Product" Test: A defendant would be entitled to an insanity acquittal "if his unlawful act was the product of mental disease or defect." This has basically been abolished because of the difficulty if defining "product." a.Definition of Product: Issues is whether the standard for deciding whether the act was a "product" of the disease or defect. A "but for test", under which the act is a product of the disease if it would not have occurred but for that disease. 4.MPC Test 4.01(1): A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. a.The defendant is entitled to an insanity verdict if he can show; (1)A lack of understanding for the wrongfulness of his conduct (the "cognitive" prong); and (2)An inability to control his conduct (the "volitional" prong). b.Volitional Prong: MPC explicitly provides that merely substantial capacity, not total capacity, to exercise control must be lacking. (1)Even acts of brooding and deliberation may qualify for the defense (i.e., sitting around and thinking about it). c.Cognitive Prong: It is sufficient for meeting cognitive portion of the MPC test (i.e., that the defendant lacks the substantial capacity to "appreciate the criminality" of his conduct) that the defendant is unable to have an emotional, effective, understanding of the wrongfulness of his conduct. The word "appreciate" as opposed to "to know" is used for this reason. 5.MPC 4.01(2): The terms mental disease or defect do not include the abnormality manifested only by repeated criminal or otherwise anti-social conduct. Mere evidence of repeated criminal history is insufficient because it gives no explanation of the cause of the abnormality. 6.Under the code argue that the impulse was so overpowering that he lacked substantial capacity to conform to the requirements of law, i.e., he lacked control. C. The Federal Standard: The introduction of the guilty but mentally ill verdict. States such as Mt have adopted it. 1.18 U.S.C. 20: Except where interference with knowledge or appreciation of act or wrongfulness, "mental disease or defect does not constitute a defense." 2.The insanity defense is only allowed if the defendant as a result of severe mental disease or defect was unable to appreciate the nature or quality for the wrongfulness of his acts at the time of the offense. The fact that the defendant was unable to conform his conduct to the requirements of law (volitional prong of the MPC standard) is not a basis for assertion of the defense under the new federal statute. a.Burden is upon the defendant of proving his insanity by clear and convincing evidence. b.Current Law: The MPC does not represent the prevailing law any longer. The only question has become whether the defendant was unable to "know" or "appreciate the nature or wrongfulness of his conduct." D. The Insanity Defense and Intoxication 1.Introduction: Generally, a defendant who at the time of a criminal act was intoxicated, either from alcohol or drugs, may make several different kinds of arguments as to why his intoxication should constitute a defense. Two distinctions between: (a) voluntary and involuntary intoxication (the latter providing an excuse, the former not; (b) temporary and permanent loss of faculties (the latter providing an excuse, the former not). These two distinctions have been universally followed. 2.Intoxication is only relevant in terms of an insanity defense when it can be shown that its effect has either caused or exacerbated a physical or emotional defect that is of a permanent nature. 3.MPC  2.08 - Intoxication - does not give clear guidance because it deals with self induced intoxication. In any case under MPC  2.08(4) if the intoxication is not self induced or is pathological then it can be raised as an affirmative defense. 4.In the area of intoxication be prepared to bullshit about the interplay between MPC  4.01 and 2.08. E. Abolition of the Insanity Defense 1.Approaches to Abolition a.Sentencing (1) Ignore the defense in guilt; consider it only for sentencing b.Mens Rea (1)Evidence of Abnormality would be excluded unless relevant to the mens rea of the offense. Traditionally, sanity has not been considered a part of the mens rea inquiry. (2)The abolition of the insanity defense would be in favor of only looking at the mens rea analysis. This would effectively shift the focus and wold eliminate the control test. The only relevant inquiry would be awareness and purpose questions. c.Under Any Model For Abolition - the people who would normally take advantage of the insanity defense would either: (1) be acquitted outright instead of by reason of insanity; (2) some would be convicted despite not being exactly normal. IX. SUBSTANTIVE OFFENSES UNDER THE MPC A. PRELIMINARY 1.ARTICLE 1. PRELIMINARY a.1.02 - Purposes; Principles of Construction - p.10 b.1.04 - Classes of Crimes; Violation - p.12 c.1.05 - All Offenses Defined by Statute; Applications of General Provisions of the Code - p.12 d.1.07 - Method of Prosecution When Conduct Constitutes More Than One Offense - p.13 e.1.13 - General Definitions - p.17 2.ARTICLE 2. GENERAL PRINCIPLES OF LIABILITY a.2.01 - Requirement of Voluntary Act; Omission as a Basis of Liability; Possession as an Act - p.18 b.2.02 - General Requirements of Culpability - p.18 c.2.03 - Casual Relationship Between Conduct and Result; Divergence Between Result Designed or Contemplated and Actual Result or Between or Probable or Actual Result - p.20 d.2.04 - Ignorance or Mistake - p.21 e.2.05 - When Culpability Requirement are Inapplicable to Violations and to Offenses Defined by Other Statutes; Effect of Absolute Liability Introducing Grade of Offense to Violation - p.21. f.2.06 - Liability for Conduct of Another; Complicity - p.22 g.2.07 - Liability of Corporations, Unincorporated Associations and Persons Acting, or Under a Duty to Act, in their behalf - p.23 h.2.08 - Intoxication - p.24 i.2.09 - Duress - p.25 3.ARTICLE 3. GENERAL PRINCIPLES OF JUSTIFICATION a.3.01 - Justification as an Affirmative Defense; Civil Remedies Unaffected - p.26 b.3.02 - Justification Generally; Choice of Evils - p.27 c.3.04 - Use of Force in Self Protection - p.27 d.3.05 - Use of Force in Protection of Other Persons - p.27 e.3.06 - Use of Force in Protection Property - p.29 4.ARTICLE 4. RESPONSIBILITY a.4.01 - Mental Disease of Defect Excluding Responsibility - p.35 b.4.10 - Immaturity Excluding Criminal Conviction; Transfer of Proceedings to Juvenile Court - p.40 5.ARTICLE 5. INCHOATE CRIMES a.5.01 - Criminal Attempt - p.41 b.5.02 - Criminal Solicitation - p.42 c.5.03 - Criminal Conspiracy - p.42 d.5.04 - Incapacity, Irresponsibility or Immunity of Party to Solicitation or Conspiracy - p.43 e.5.05 - Grading of Criminal Attempt, Solicitation of Conspiracy; Mitigation of Cases of Lesser Danger; Multiple Convictions Barred - p.44 f.5.06 - Possessing Instruments of Crime; Weapons - p.44 g.5.07 - Prohibited Offensive Weapons - p.45 6.ARTICLE 6. AUTHORIZED DISPOSITION OF OFFENDERS a.6.01 - Degrees of Felonies - p.45 b.6.02 - Sentence in Accordance With Code; Authorized Dispositions - p.45 c.6.03 - Fines - p.46 B. OFFENSES INVOLVING DANGER TO THE PERSON 1. ARTICLE 211. ASSAULT; RECKLESS ENDANGERING; THREATS a. 211.1 - Assault - p.62 b. 211.2 - Recklessly Endangering Another Person - p. 62 c. 211.3 - Terroristic Threats - p.62 2.ARTICLE 212. KIDNAPPING AND RELATED OFFENSE; COERCION a.212.1 - Kidnapping - p.63 b.212.2 - Felonious Restraint - p.63 c.212.3 - False Imprisonment - p.63 d.212.4 - Interference with Custody - p.63 e.212.5 - Criminal Coercion - p.64 3.ARTICLE 213. SEXUAL OFFENSES a.213.1 - Rape and Related Offenses - p.64 b.213.2 - Deviate Sexual Intercourse by Force or Imposition - p.65 c.213.3 - Corruption of Minors and Seduction - p.66 d.213.4 - Sexual Assault - p.66 e.213.5 - Indecent Exposure - p.66 f.213.6 - Provisions Generally Applicable to Article 213 - p.67 C. OFFENSES AGAINST PROPERTY 1.ARTICLE 220 - ARSON, CRIMINAL MISCHIEF, AND OTHER PROPERTY DESTRUCTION a.220.1 - Arson and Related Offenses - p.67 b.220.2 - Causing or Risking Catastrophe - p.68 c.220.3 - Criminal Mischief - p.68 2.ARTICLE 221 - BURGLARY AND OTHER CRIMINAL INTRUSION a.221.1 - Burglary - p.69 b.221.2 - Criminal Trespass - p.69 3.ARTICLE 222 - ROBBERY a.222.1 - Robbery - p.70 4.ARTICLE 223 - THEFT AND RELATED OFFENSES a.223.1 - Consolidation of Theft Offenses; Grading; Provisions Applicable to Theft Generally - p.71 b.223.2 - Theft by Unlawful Taking or Disposition - p.72 c.223.3 - Theft by Deception - p.72 d.223.4 - Theft by Extortion - p.72 e.223.5- Theft by Property Lost, Mislaid, or Delivered by Mistake - p.73 f.223.6 - Receiving Stolen Property - p.73 g.223.7 - Theft of Services - p.73 h.223.8 - Theft by Failure to Make Required Disposition of Funds Received - p.74 i.223.9 - Unauthorized Use of Automobiles and Other Vehicles - p.74 5.ARTICLE 224 - FORGERY AND FRAUDULENT PRACTICES a.224.1 - Forgery - p.74 b.224.2 - Simulating Objects of Antiquity, Rarity, etc. - p.75 c.224.3 - Fraudulent Destruction, Removal or Concealment of Recordable Instruments - p.75 d.224.4 - Tampering With Records - p.75 e.224.5 - Bad Checks - p.75 f.224.6 - Credit Cards - p.75 g.224.7 - Deceptive Business Practices - p.76 h.224.8 - Commercial Bribery and Breach of Duty to Act Disinterestedly - p.76 i.224.9 - Rigging Publicly Exhibited Contest - p.77 j.224.10 - Defrauding Secured Creditors - p.77 k.224.11 - Fraud in Insolvency - p.77 l.224.12 - Receiving Deposits in a Failing Financial Institution - p.77 m.224.13 - Misapplication of Entrusted Property and Property of Government or Financial Institution - p.78 n.224.14 - Securing Execution of Documents by Deception - p.78