the law of crimes

Module 1: The Law Of Crimes
I. Requirements for Defining a Crime:
The Criminal Act
Actus Reus= 2 “Act” requirements=
1) conditioning of just punishment on the charge/proof of an actus reus; 2) particular actus reus the prosecution must charge and prove beyond a reasonable doubt in order to est. crim liability for spec. crime
7 Conditions for just punishment = past, voluntary, bad, conduct, specified, in advance, by statute.
MPC on Actus Reus:
Sec. 1.13(9)- Act reqmt has 3 elements = conduct, results, circumstances
Conduct- the physical activity in which the Def engages; can be an act, omission, or possession (2.01)
Act- an affirmative voluntary conduct sufficient to satisfy the def’n of the offense
Ommission- Crim liability if the def is physically capable of the act and if: 1) the omission is expressly made sufficient by the law defining the offense; or 2) a duty to perform the act is imposed by law [ 2.01(3)]
Possession- possession is sufficient act for Crim liability if the def’n of the offense provides so and if the item possessed was “knowingly procured or received” [ 2.01(4)]
Result- any consequence that must be caused by the Def’s conduct, most crimes don’t include a result element
i.e. “bodily injury” is the result element in Assault Offense (211.1(1b))
Circumstances- the external conditions that must exist when Def engages in the conduct;  
i.e. the circumstance elements in Rape = Def is male, victim female (not his wife); Theft elements = unlawfully take, unlawful control over…
Acts:
MPC 2.01 = Requirement of a Voluntary Act- One is not guilty of a crime under the MPC unless the charge is based on conduct of a voluntary act [MPC 2.01(1)]
Proctor v. State (Crim Ct App. Okla. 1918)- The charge attempts to est. a crime re: Def’s “keeping of a place, and the possession of an unlawful, unexecuted intent to sell liquor.” No overt act is charged.
Held: An intent to commit a crime is NOT indictable and even if the intent is in general the “very essence of a crime,” some overt act is the only suffice evidence of Criminal intent
Statue = Section 4 of Chapter 26, Session Laws 1913 (pp 97)
Keeping of a place w/an unlawful purpose or intent cannot be declared a crime—
Legislature didn’t have power to enact the statue applied here b/c the statute itself fails to define a crime (crime requires some omission or commission)
Omissions:
Jones v. US (DC Cir. 1962)- Jones convicted of involuntary manslaughter; She had agreed to care for Green’s child b/c Green had child out of wedlock and felt need to hide child. Baby taken by officials b/c of malnutrition—baby died. Ct ID 4 cases where failure to act = breach of legal duty.
Held: Ct Rev’d, new trial ordered; Legal Duty is a critical element of the Crime Charge but jury instructions failed to emphasize need for legal duty.
MPC 2.01(3)- Liability for the commission of an offense may not be based on an omission unaccompanied by the action unless: 1) omission is expressly made an offense by the law defining the offense; OR 2) legal duty to perform that act
Degren v. State & People v. Carrol both cases est. that a parent or step parent have legal duty to child thus can be charged for child abuse if fail to prevent abuse from another parent/adult.
Possession-  [to satisfy the act reqmt it must be an unlawful possession]
MPC 2.01(4)= Possession is an act if possessor knowingly procured/received the thing possessed or was award of his control thereof for a sufficient period or have been able to terminate his possession
United States v. Maldonado (1st Cir. 1994)-  Def got involved in drug chain- Santos had been told by customs to transport the cocaine and deliver to Palestino who didn’t show up so Def got called. Def & Santos were in a room w/the drugs and when S left Customs agents arrested Def, charged him w/possession of cocaine w/intent to distribute.  
Held: Conviction of Def Aff’d- it’s arguable that Def didn’t possess b/c he didn’t pay for them, when in room w/Santo he had control and Def left the room where drugs were for a while—BUT he had stored the drugs with an intent to deliver them to Palestine.
Rule = Possession includes not merely the state of immediate, phys possession but also “Constructive Possession” including possession thru another & joint or exclusive possession
Constructive Possession = power and intent to ex. Control/dominion over an object not in ones actual possession (i.e. you can possess an object that is hidden in a draw at home)
= 2 Elements of CP = 1) Effective power over the thing; 2) intent to control it [thus possession is a combined actus reus & mens rea]
Statute = 21 USC 841
When does possession become illegal? Proximity & Control Issues—
US v. Jenkins (3rd Cir. 1996)- Ct Rev’d Def’s drug possession charge b/c drugs merely found on table of his friend’s coffee table b/c dominion & control are not est. by mere proximity to the drug or presence on the prop where it’s located. (See also note cases= US v. Lane (Def charged even for very short-term gun possession b/c can be shot quickly); US v. Tucker (Def charged possession of child porn found on computer)…)
The Requirement of Voluntariness-
People v. Grant (IL App Ct. 1977)- Def/Grant was patron at tavern, witnessed a fight, then attacked the officer trying to escort the fighters out. Def claims mind went blank and doesn’t remember attacking officer.   
Held: Conviction (aggravated battery and obstructing officer) Rev’d—b/c jury instruction were defective in that they didn’t contain an instruction on the defense of involuntary conduct (Ct found some evidence that Def lied re: forgetting his actions but still entitled to proper jury charge).
If jury finds Def sane but not responsible for his acts, he cannot be convicted of the offense*
Rule = a material element of every offense is a voluntary act which includes the omission to perform a duty which the law imposes on offender and which he is phys able to perform
Statute: IL Criminal Code 4-1 (pp 117)
Volition v. Insanity had Def’s assault been due to insanity he could be charged under Civil commitment laws BUT b/c assault due entirely to involuntary action State may not be able to incarcerate him.
MPC 2.01(2) = Involuntary Acts- the following are not voluntary acts…a) a reflex or convulsion; b) a bodily movement during unconsciousness or sleep; c) conduct during hypnosis; or d) bodily movement otherwise not a product of the actor’s effort or determination.
MPC 1.13(2) & (3)- General Definitions Def. Voluntary & Involuntary Acts-
Brown- Man Mistook Wife for Deer & Denno- Crime & Consciousness
The Guilty Mind: (Chp 3)
Why Mens rea requirement?= retributive limits on criminal law restrict punishment to those who are morally blameworthy; core image of a blameworthy person is one who intentionally harms a person; the act reqmt refers to a general precept that punishment depends on proof that def acted w/guilty mind/spec mind set;
MPC 2.02- General Requirements of Culpability- (1) Min Reqmt of Culpability: a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently…(2) Kinds of Culpability = a) purposely; b) knowingly; c) recklessly; d) negligently…(3) Culpability Required unless otherwise provided…
2.02(2a)- Purposely- it’s his conscious object to engage in the conduct…aware of the attendant circs
2.02(2b)- Knowingly- he is aware of the nature of the conduct & attendant circs and that his conduct will bring about such a result
2.02(2c)- Recklessly- person consciously disregards a substantial & unjustified risk
2.02(2d)- Negligently- he should be aware of the substantial risk
People v. Dillard (CA Ct App. 1984)- P was riding his bike after leaving step-father’s house where he took his loaded rifle. P convicted of misdemeanor of carrying loaded firearm. P claims didn’t know it was loaded.
Held: Conviction Aff’d—knowledge (that gun loaded) is NOT an element of the offense, thus lack of knowledge not valid defense (re: Penal Code 12031).
Rule = Cts have est. that certain kinds of regulatory offenses enacted to protect public health & safety are punishable despite the absence of culpability or criminal intent (b/c the acts pose legitimate threat to public and would be hard for state to est. criminal intent)
Note- CA Code Sec. 20 requires that every crime have both an act + intent or criminal negligence (but there are exceptions as here)
Should Cts enforce Strict Liability? (note 5,6,7 pp 165)
MPC 2.05- SL = when the State imposes even partial SL, the Criminal Offense may ONLY be punished as a violation (not crime) punishable only by fine of other civil penalty.
b/c crimes should not be condemned unless the Def’s culpability can be proven, and if enforcement of SL precludes litigation of the culpability of Def’ alleged deviation, the enforcers cannot demand the use of penal sanctions.
Morissett v. US- Ct  held that while there was no question that Def knowingly took and sold the air force bomb casings, Def honestly believed that the casings were abandoned and that he was not violating anyone’s rights by taking them. J. Jackson: notion that a crime must be inflicted by intention is a universal and persistent principal in mature systems of law (that even when statutes are silent re: mental state, the criminal intent is assumed to be inherent to criminal offenses).
Regina v. Faulkner (1877)-  Def/Faulkner was prison on board a vessel; Def stole rum, bore a hole in the rum cask and while trying to mend the hole the rum caught on fire and destroyed the vessel. Jury had been instructed that Def could be found guilty if found he was engaged in felony of stealing rum despite no intention to burn down the ship.  
Held: Conviction Dismissed—b/c intention is an element of the offense, it should be that Def intended the very act he is charged for. The fire wasn’t the necessary result of the felony he was engaged in & intended (stealing the rum) & Def couldn’t have foreseen the fire.
MPC Categories (pp 188)
MPC 4 Categories of Mens rea = purpose, intent, reckless, negligence
Reckless v. Negligent- reckless if consciously disregard a substantial risk; negligent if one should have been aware of the risk
Reckless requires inquiry as to the actor’s subjective state of min (must be aware his behavior is reckless) BUT negligence does not (b/c Cts uphold reasonable person std)
MPC 2.02(4) - Prescribed Culpability Requirement applies to all elements- when the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense…then the provision shall apply to all the material elements of the offense…
Thus in Regina, b/c the statute didn’t est. a mens rea for arson in the statute, the Ct can transfer the mens re reqmt for intending to steal the rum to a mens rea for arson***
Causation (Chp 4)
Causation- of harm is actually a normative conclusion that absent justifying conditions, Def has wronged someone
Justifying conditions for limiting causation= 1) But-for; 2) Violent acts; 3) Foreseeablity; 4) Intervening Acts; 5) Duties;
MPC 2.03-Causation:
2.03(1a) Cause in Fact= would the result not have occurred but for the Def’s conduct?
Once its est. that the conduct was the Cause in fact, then must ask:
Under CL, the 2nd question is was Def the proximate or legal cause?
Prox Cause- look to see if there are any intervening cause; ask what is the diff btwn what actually happened and what Def intended?
If the intervening cause is “dependent” such that its foreseeable of related to the Def’s conduct, then it is fair to hold Def responsible
MPC- rather than use Prox cause, it looks at the actual result v. what Def planned, contemplated ( purpose, knowledge, negligence, reckless)
But For Causation
Regina v. Martin Dyos (1979)- 7 youths were at a community center when some of them got in a fight with another group of teens. RM was struck on head w/a brick and died. Evidence that MD stuck RM on the head with a brick but RM was hit in the head twice. Thus there is a 2nd likely cause.
Held: MD cannot be held to be the cause of death if death could have occurred without him.
Criteria for Proximate cause = foreseeability (Prox Cause is relevant here b/c it falls w/in the broad class of “But for causes”) was foreseeable here that throwing brick to head could cause head injury
Thus Ct can clearly est. the legal cause but is left to est. the But-for
Prox Cause (Foreseeability & Limitations)
Commonwealth v. Rhoades(Mass. 1980)- Def/Rhoades charged w/deliberate setting fire to an Apartment in Chelsea. Firefighter on the scene couldn’t get air thru his mask and died Def charged w/arson & 2nd degree murder for his death.
Held: Def’s 2nd Degree Murder charge Reversed—Jury charge erred b/c it exposed Def to liability for event he may not have proximately caused. Judge should have told jury Def must be the efficient cause (the cause that necessarily sets in operation the factors which caused the death).
Nothing in the jury charge indicated that “proximate cause is a cause which in the natural and continuous sequence produces the death and w/out which the death would not have occurred.”
MPC 2.03 – Causal Relationship btwn Conduct & Result- 1) Conduct is the cause of a result when…
2.03(2b)—the purpose or knowingly element of the offense is est. if the actual result involves the same kind of injury or harm as that designed or contemplated and is not too accidental to have a just bearing on Def’ liability or on the gravity of his offense.
2.02(3)- conduct is the cause…when reckless or negligent cause of a particular result is a material element of an offense
Harcourt: attempt by the MPC was to shift everything back to mens rea to solve the problem of causation, thus we see a return to factors such as remoteness and foreseeability
MPC Sec. 2.03- Causal Relationship between Conduct & Result 1) Conduct is the cause of a result when: a) it is an antecedent but for which the result in question would not have occurred; and b) the relationship between the conduct and the result satisfies any additional causal requirements plainly imposed by law. 2) When purposely or knowingly causing a particular result isa material element of the offense, the element of the offense is not est. if the actual result is not w/in the purpose or contemplation of the actor unless:
Note that the meaning of causing a result changes depending on the culpable mental state required w/respect to that result. Thus, whether or not Def caused a result may depend on the offense she is charged w/ and its elements
Proximate Cause- usually denotes a Std of causation that limits causation to results expected by the actor; there are some causes that are too remote & distant from their results to count as legal causes.
Prox cause limitations = remoteness, distance, Intervening causes…
Intervening Causes:
Commonwealth v. Root (PA 1961) - Appellant was convicted of involuntary manslaughter for the death of his competitor in the course of an auto race on a highway. Def convicted of manslaughter. Appealed and Superior Ct Affirmed- Supreme ct granted allocatur. Issue- whether the Def’s unlawful and reckless conduct was a sufficiently direct cause of the death to warrant a criminal homicide charge.
Held: Criminal Homicide conviction Rev’d Ct concluded that the tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide more direct causal connection is required for conviction. In this case the Def’s reckless conduct was not sufficiently direct cause of the competing driver’s death to make him criminally liable.
People v. Kevorkian (MI 1994)- Def/Dr. Jack allegedly assisted in 2 suicides, both were women suffering from conditions that caused severe pain and disabling and each sought out his assistance. Def was unable to insert the suicide machine needle into Ms. Miller’s arm and had to resort to a cylinder w/carbon monoxide where Def had to place a mask on her face but Ms. Miller opened the gas valve; the machine worked on Ms. Wantz. Issue- Can causes/acts leading up to the act/conduct that directly caused the murder be held as direct causes and thus be convicted of murder?
Held: Case Remanded- where a Def is merely involved in the events leading up to the death, such as providing the means, the proper charge is assisting in a suicide, not Criminal homicide (which requires Def be direct cause).
Rule= Def can only be charged w/murder where there is probable cause to believe the death was the direct and natural result of Def’s conduct

II. Constitutional Dimension:
4th Amendment – No unreasonable search and seizure
8th Amendment – No cruel and unusual punishment. Limits what may be defined as criminal and what punishments may be inflicted.
14th Amendment
Due process clause –  Requires states not only to guarantee procedural fairness to criminal defendants, but also to respect substantive principles of justice. Essentially, most of the Bill of Rights is incorporated to the states.
Equal protection of the law
The Prohibition on Status Crimes
The Supreme Court has ruled you cannot punish a person based on their status, that is, without a specific voluntary act.
The Constitutional Challenge to the following Convictions are grounded on notion that the DPC requires one be given fair and adequate notice, right to fair warning, foreseeability.

Robinson v. California (1960)
Defendant was convicted under a statute that made the status of being addicted to the use of narcotics a criminal offense, whether or not he ever used or possessed narcotics within the state or had been guilty of any antisocial behavior there. At the time of his arrest, defendant was not engaged in any illegal conduct, and there was no proof that he actually used narcotics within California.
Held: CA Statute Unconstitutional & Violates the 8th & 14th Amend for inflicting cruel and unusual punishment b/c incriminates being an addict.
The court focused on drug addiction as an illness; Also the problem of continuous liability (no way out). Involuntary behavior.
No Act is being criminalized; statute criminalizes a status related to use & mental illness and States do NOT punish mental illnesses.
Ct asserts 4 grounds for Unconstitutional Statute = No act; jurisdictional requirement (no act occurred in the State); involuntary; mental illness

Powell v. Texas (1968)
Ct Upheld Powell’s conviction of being “drunk in public” b/c his appearing in public was voluntary conduct, whether or not Powell’s drunkenness is the result of an illness (i.e., alcoholism)
But See, Pottinger v. City of Miami- P/Homeless were arrested for sleeping in public places under vagrancy laws; P’s sue the city for their arrest and Ct finds the City violated the 8th Amendment (cruel & unusual punishment)
Involuntary?  one doesn’t chose to be homeless
Prosecution should argue there was an act; Defense involuntary


Johnson v. State (Fla. 1992)
During her two pregnancies, petitioner used drugs within 24 hours of giving birth. Petitioner was convicted of delivering a controlled substance to an infant. The appeals court affirmed the convictions, and certified a question to the Supreme Court as to whether the statute permitted prosecution of a mother who ingested a controlled substance prior to giving birth, and for delivery of a controlled substance to the infant during the time following the birth, but before the umbilical cord was severed.
Held: Sup Ct held Petitioner could not be prosecuted under § 893.13(1)(c)(1) because the legislative history indicated that the legislature rejected a provision that authorized criminal penalties against mothers who delivered drug-affected babies. Such prosecutions violated public policy because they could discourage women from seeking prenatal care.
Possible Status Crime Defense: Mother was an addict involuntary, mental illness

City of Chicago v. Youkhana(IL App. 1995)
Defendants were arrested for loitering and charged with violating the ordinance in the city that was aimed at curbing street gangs. The ordinance unconstitutionally criminalized status by prohibiting gang members from loitering because they were gang members, not because they were loitering. It was the status, not the conduct that triggered the ordinance. Criminal penalties could be imposed only if there was a criminal act.
Held: Ordinance was unconstitutionally overbroad and infringed on freedoms of association, assembly, & expression secured by Fed Constitution, 1st Amendment.
Status Crime? = Statute only triggers if one is a gang member;
Legality
“No crime without a law, no punishment without a law” A person may not be punished unless her conduct was defined as criminal before she acted. The reasons for the principle:
Legality Principle puts clear limit on Ct’s ability to define and proscribe CL crimes
Preventing the government from punishing its enemies by enacting vindictive, after-the-fact statutes
Fair notice – A citizen should be free to choose between lawful and unlawful conduct; without fair notice of what the law is, the citizen has no opportunity to conform her conduct to the law. Also, a person cannot be deterred from committing a crime without fair notice that the act is a crime.

Corollaries to the principle of legality:
Criminal statutes should be understandable to reasonable law-abiding people (specificity)
Criminal statutes should not delegate basic policy matters to policemen, judges, and juries for resolution on an ad-hoc and subjective basis.
Judicial interpretation of ambiguous statutes should be biased in favor of the accused (lenity)
Rogers v. Tennesee (US 2001)
Def/Rogers stabbed victim in the heart, caused cardiac arrest, brain damage, and coma; Victim then died of a kidney infection. Under CL, a Def would NOT be convicted of murder unless the victim died by the Def’s act w/in a year and a day.
Held: Def’s 2nd Degree murder conviction Aff’d the TN Cts change in the CL rule (re: a year and 1 day murder limit) was NOT unexpected and indefensible; Ct asserts notion that the CL presupposes a measure of evolution and judicial alteration;
Ex Post facto clause = No State shall pass any ex post factor law


Keeler v. Superior Court (1970) [Un-Constitutional b/c No fair warning]
Petitioner accosted his wife after finding out she was pregnant with another man's child. He began to beat her in the abdomen. As a result, the fetus was stillborn. The court issued the writ and held that an unborn but viable fetus was not a human being within meaning of  HYPERLINK "http://www.lexis.com/research/buttonTFLink?_m=1c3e952c9f9bb7e4de64ca3d0aa5864f&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2%20Cal.%203d%20619%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=2&_butInline=1&_butinfo=CA%20PEN%20187&_fmtstr=BRIEF&docnum=1&_startdoc=1&wchp=dGLbVlz-zSkAW&_md5=1fb7b12420d45ceaaf3509dd34221c70" \t "_parent" Cal. Penal Code § 187. The court's extensive survey of the legislature's intent and purpose in adopting § 187 revealed that it did not intend to bring an unborn fetus within reaches of the statute. The court construed § 187 in petitioner's favor. The court declared that it would exceed its judicial and constitutional limits if it were it to declare an unborn fetus to be within the murder statute. Furthermore, assuming the court could adopt such a rule, it could only apply it prospectively. Applying the new rule to petitioner would have violated petitioner's right to due process.
Defense?- notion that the Statute didn’t intend to apply to killing a fetus, only intended to protect living human beings, thus Def did not know he would be convicted of homicide (but knew he could be convicted of assault & battery on wife)

Problem w/Legality as with vagueness, is that the Ct moves around re: the actual legal rule that it applies.
Specificity
A criminal statute must not be so “vague that en of common intelligence must necessarily uses at its meaning and differ as to its application.” A statute must give “sufficient warning that men may conduct themselves so as to avoid that which is forbidden.” A person is denied due process of law if she is convicted and punished for violation of a statute that lacks such clarity.

The “root of the vagueness doctrine is a rough idea of fairness,” and fairness requires only “that there is sufficient warning to one bent on obedience that he comes near the proscribed area.”

Void for vagueness concern has two prongs:
Fair notice
Arbitrary enforcement by police

Papachristou v. City of Jacksonville (1972)
The eight defendants were arrested under Jacksonville's vagrancy statute; none were engaged in any known criminal activity at the time they were detained. Four of the defendants, an interracial group of friends, were arrested for "prowling by auto" while driving to a nightclub, one defendant was arrested as a "vagabond" while waiting for a ride, two were charged with "loitering" while walking on a sidewalk, one was arrested as a "common thief" after being ordered out of his car in his girlfriend's driveway, and the last was charged with resisting arrest and "loitering" after being identified by a policeman as a generally opprobrious character. Defendants, in consolidated appeals, challenged the constitutionality of the vagrancy ordinance. On appeal, the court reversed the convictions. The court held that § 26-57 was void for vagueness because it did not give fair notice of what conduct was forbidden and because it encouraged arbitrary and erratic arrests by the police.

Chicago v. Morales (1999)
Petitioner city enacted a Gang Congregation Ordinance, which prohibited criminal street gang members from loitering in any public place. The Supreme Court agreed with the Illinois Supreme Court and held that the ordinance was unconstitutionally vague. The ordinance did not meet the fair notice requirement because it did not provide adequate notice of what constituted prohibited conduct. Because no standard of conduct was specified, at all, by the ordinance, the entire ordinance failed to give the ordinary citizen adequate notice of what was forbidden and what was permitted. The ordinance also violated the requirement that a legislature establish minimal guidelines to govern law enforcement. Because the ordinance provided absolute discretion to police officers, this allowed for arbitrary & discriminatory enforcement. Thus, the ordinance was unconstitutional for vagueness.
Scalia Dissent: There is both a mens rea and actus reus here
Social Norms Response (Meares) = Want police to address misdemeanor crimes and promote social capital; Want midlevel solutions to reduce crime w/out devastating effects on the community***

See, Social Norms Theory- Meares & Kahan & Harcourt Critique to Broken Windows

III. Homicide:
Homicide
Homicide is the “killing of a human being by another human being” or “causing the death of another human being.” A criminal homicide is a killing without justification or excuse.
Intentional Homicide
1.    First and Second Degree Murder
CL Definition of Murder = “the killing of a human being by another human being with malice aforethought.” Malice is defined as either:
Intent to kill
Intent to inflict grievous bodily harm
Extremely reckless disregard for the value of human life or
Intention to commit a felony (see felony-murder)
CL Homicide:
1) Murder = cause death w/out malice aforethought (malice + causation)
= purpose to cause death or intent to inflict SBH; premeditated; intent to inflict serious bodily harm; extreme recklessness/indiff to human life; felony-murder  
Intent to kill est. the required malice for a murder charge; but intent to kill is hard to prove!!!
2) Manslaughter = cause death w/no malice
Voluntary = heat of passion or self defense
Involuntary = Reckless or Criminal Negligence  


Pennsylvania was the first state to divide murder into degrees.
First degree murder = is for premeditated & intentional  killings and killing during the course of one several felonies est. by statute (i.e. robbery, rape, arson, mayhem felony-murder)
Second-degree murder for all other intentional murders.
Death penalty given only for 1st degree murder prosecuted as Capital Murder
Felony Murder-makes any accomplice in the commission of the felony guilty of murder;  
Serves to deter commission of felonies
Most statutes will list under the 1st degree category all dangerous felonies that est. a felony murder charge;  
Many States limit felony murder such that: felony is the “prox cause”; or “natural and probable result”; or limit accomplice liability
Manslaughter:
Voluntary- Def entitled to have the charge reduced to VM if committed in the heat of passion caused by adequate provocation-
Provocation must have: caused def to lose control of normal restraint; must have been legally adequate (more than words); & been such that it was reasonable for Def to react as he did
Many Cts will presume “malice aforethought” after Prosecutor proves intent to kill
Involuntary-  two types=
Reckless or negligent- most Cts require more than ordinary negligence;
Misdemeanor manslaughter- death resulting during commission of a misdemeanor; abolished in ½ the States

MPC 210 – A criminal homicide is murder when the actor kills another person
Purposely or knowingly, or
Recklessly, under circumstances manifesting extreme indifference to human life
MPC Article 210: Criminal Homicide provisions=
210.1 Criminal Homicide- 1) a person is guilty of CH if he purposely, knowingly, recklessly or negligently causes the death of another human being; 2) Criminal homicide is murder, manslaughter, or negligent homicide.
210.2 Murder- a) purposely, knowingly; b) committed recklessly under circumstances manifesting extreme indifference to the value of human life…2) Murder is a felony of the 1st degree
210.3 Manslaughter- a) committed recklessly; or b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse….3) Manslaughter is a felony of the 2nd degree.
210.4 Negligent Homicide- 1) when committed negligently. 2) is a felony of the 3rd degree.
210.5 Causing or Aiding Suicide- 1) Causing Suicide as CH…; 2) Aiding or Soliciting Suicide as an Independent Offense…
210.6 Sentence to death for Murder; Further Proceedings to Determine Sentence- 1) Death Sentence Excluded…; 2) Determination by Court or by Court & Jury- Unless the ct imposes sentence under subsection 1 of this section, it shall conduct a separate proceeding to determine whether Def should be sentenced to felony of the 1st degree or sentenced to death…; 3) Aggravating Circumstances…4) Mitigating Circumstances…
MPC Homicide Break-Down:
Justification & Excuse- If Def raises defenses such as self-defense or insanity, it must be disproved by the prosecutor beyond a reasonable doubt before a Criminal homicide charge can occur
210.2 Murder-
Def intended to kill or knew death was almost certain = 210.2(1a)
210.2(1b)- cases where Def caused death recklessly under circs manifesting extreme indiff to the value of human life (involves an actual awareness of the risk= reckless)
MPC does not assert the Felony Murder rule, BUT a “felon” that has caused death, intended to kill or manifested indiff to human life while committing the felony is charged for murder, 210.2(1b)
Most States, unlike the MPC have kept the Felony murder rule
MPC does not have a Degree Structure (i.e. 1st v. 2nd Degree)
210.3 Manslaughter-
MPC abandons CL terms “Voluntary & Involuntary”
Provocation—
210.3(1b)- Def’s charge can be lowered form murder to manslaughter if committed “under the influence of extreme mental or emotional disturbance which is reasonable or excusable”
Reasonableness of Def’s conduct/explanation is determined form viewpoint of a person in his situation under those circs as he believes them to be
Objective Std: Def is measured v. an objective std by the MPC (not purely objective b/c accts for the “situation”
“…situation…as he believes them to be.”  this language allows Cts room to acct for possible mistake by Def or mental disease or defect (b/c of the ambiguity of “situation”)  
210.4 Negligent Homicide-
Criminal homicide where Def committed the killing negligently (3rd degree felony)
210.6 Capital Punishment-
Bifurcation of Trial: Capital Punishment decision should be made in a separate trial (1st proceeding est. Def’s guilt) = 210.6(2)
210.6(1)- Provides guidelines as to how the DP decision should be made
Role of Mental Disease of Defect- MPC accts for this and avoids the Death Penalty under:
 210.6 (1e) (Def’s mental condition calls for leniency) & 2.10.6(4b) (Def under influence of EE) & 210.6(4g) (insanity defense)
Common Law Homicide:  [following list is elements required by Statute, must be proven]
Murder= cause death w/malice aforethought (malice + causation)
Purpose/intent to cause death
Premeditated
Intent to inflict serious bodily harm
Extreme recklessness/callous indifference to human life
Felony-murder: during course of felony
Manslaughter= cause death w/no malice (no malice + causation)
Voluntary-
Heat of passion
Self-defense
Involuntary-
Reckless
Criminal negligence (should be aware of a substantial and unjustifiable risk)
Note-
Voluntary manslaughter is intentional thus could be murder, except its viewed as justified (i.e. self defense)


*The Case of Keith Mondello (NY 1989)-
A. Facts- Bensonhurst was a predominately white, Italian neighborhood in Brooklyn. Tension exited between Italians and the Blacks and Hispanics (who were very few in number there). A feud had arisen btwn Mondello and Gina Feliciana, 17 yr old woman living above the candy store where Mondello tended to gather w/ his group of Italians. Gina threatened to invite back a group of her black and Hispanic friends for her b-day party after Mondello had asked to leave one night. Mondello gathered a large group w/bats outside the candy store to fight Gina’s friends upon arrival. Mondello led the group and mistakenly chased after Hawkins, a 16 yr old black, and his friends who were lost and in the area to look at a car. Most of Mondello’s crowd eventually realized Hawkins and his frieds were not the group of Gina’s friends and backed off. But Fama still pulled out his gun, shot Hawkins 4 times, and then ran away.
Prosecutor: Would you convict Mondello or Fama for the death of Hawkins? If so, what amt of punishment?
Fama= 1st degree murder; despite his mental impairment, he seemed to intend to kill by shooting at Hawkin’s chest and seemed fully aware of what he was doing (as he gave his gun to someone else and ran off, he knows he was in the wrong)
Mondello= either Involuntary manslaughter (b/c it was unintentional, but he was reckless and negligent in fueling the event and leading the pack toward the innocent boys) or Criminally Negligent Homicide (b/c his negligence caused Hawkin’s death)
Harcourt=
Mondello = a But-for cause of the murder b/c he instigated & organized the incident
Key- was he reckless (conscious disregard a substantial risk) if so, could charge him with murder for intent to inflict SBH or extreme recklessness
NY Penal Code 125.25 = 2nd Degree Murder = one is guilty of 2nd degree murder if there was intent, or acted w/indifference to human life; attempted a felony, or acted recklessly;
Under NY Code, Mondello could be charged w/2nd Degree if he was reckless
Gina= potential involuntary manslaughter charge for criminal negligence?
That elicits a causation issue—was she a Proximate cause?
Squid= candy store owner who reminded Mondello of the fight; could he be a legal cause?
Holding = Fama- 2nd degree murder; Mondello was acquitted of murder

*Intent to kill est. the malice or malice aforethought necessary for murder—
Francis v. Franklin (US 1985)  [Escaped prisoner case]
Def was imprisoned than when taken to dentist he escaped, took officers gun, took the assistant as hostage and fleed to the victim’s home and shot victim when he shut the door on Def.  Defendant denied firing the shot voluntarily or intentionally and claimed that shots were fired in accidental response to the slamming of the door. The jury was instructed that a person's acts were presumed to be the product of his will and that a person was presumed to intend the consequences of his acts, but those presumptions could be rebutted.
Held: Jury Charge held Unconstitutional under DPC b/c it was more of a command b/c not given a choice (told they had to infer that conclusion);
The Court reasoned that a rational juror could have understood the challenged portions of the jury instructions as creating a mandatory presumption that shifted to defendant the government's burden of persuasion on the crucial element of intent.
You cannot direct the jury to presume intent to kill—the prosecutor must prove it***

U.S. v. Watson (DC Cir. 1985) [Pre-Meditated Murder- 1st Degree]
The officer had been pursuing defendant. Defendant fled into an apartment, made a phone call, and waited for the officer to arrive. When the officer came in, defendant resisted arrest and initiated a struggle with the officer, eventually disarming him. When defendant subdued the officer in the struggle, rather than escaping, defendant retrieved the gun, stood up over the officer, and shot him as he was lying on the floor. Def ignored the officer's twice given admonition that it "wasn't worth it" and proceeded to shoot the officer just once. The court reviewed the evidence in the light most favorable to the prosecution and determined that a reasonable jury could find that defendant acted with deliberation and premeditation when he shot and killed the officer. The court held that this evidence was sufficient circumstantial evidence from which premeditation could be inferred. The fact that defendant did not flee when he had the opportunity indicated that he chose instead to shoot the officer. Similarly, the fact that he had to retrieve the gun after the struggle and shot the officer as he was lying on the floor and defendant was standing indicated deliberate actions.
Even a few seconds can be enough time to form an intention that can be treated as first-degree murder***
Premeditation= must est. that Def gave thought before acting upon the idea of taking the life and made a definite decision to kill
Deliberation = proven by est. that Def acted w/consideration & reflection upon the design to kill
Some appreciable amount of time must elapse btwn formation of a plan to kill and execution of the plan to est. that the reflection amounted to a deliberation*
How do Premeditation & Deliberation Differ from Intent?
Timing (sufficient time must elapse to est. the acts weren’t just impulsive)
Control (notion that Def has opp to retreat but chose not to)
Harcourt: In most legal jurisdictions today, predominance & deliberation collapse and all that is required is intent*
2.    Voluntary Manslaughter
Manslaughter is an unlawful killing that does not involve malice.
Voluntary manslaughter is an intentional killing committed in “sudden heat of passion” as a result of “adequate provocation.”

Elements of the common law defense of sudden heat of passion:
Acting in the heat of passion—any violent, intense, or enthusiastic emotion, most commonly anger, but also fear, jealousy, or desperation
Result of adequate provocation (which would be adequate in the mind of a reasonable man)
No reasonable opportunity to cool off
Causal link between the provocation, the passion, and the homicide

People v. Berry(CA 1976) [Provocation]
Defendant was convicted of first degree murder and assault by means of force likely to produce great bodily injury in connection with the death of defendant's wife. Defendant admitted the assault and killing, but claimed it was committed in a state of uncontrollable rage caused by provocation b/c wife told him she fell in love w/another man and flowing from condition of diminished capacity.
Held: CA Sup Ct Rev’d Murder Conviction b/c since trial court erred in failing to instruct jury on voluntary manslaughter since the evidence showed the killing was done upon sudden quarrel or heat of passion; but the court did not err in refusing an instruction on voluntary manslaughter in context of diminished capacity since there was no evidence defendant had any mental illness or defect.
According to this court, the sudden passion can actually be the result of a long period of provocation, without an actual fight at the time of the killing.
Harcourt: Objective v. Subjective Heat of Passion Std
Berry Std= very broad, Berry Ct held that “passion” need not require rage or anger (falls close to MPC std on spectrum)
MPC Std = Subjective EED Std; (broad)
MPC (subjective) --------------- Reasonable Person Std (objective)

MPC Sec. 210.3- Manslaughter
MPC on Provocation=  
“(1) Criminal homicide constitutes manslaughter when.…(a) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance (EED) for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined form the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.

a.    Reasonable Person Standard - MPC
The common law measured the provocation according to the ordinary person (man) of average disposition, not exceptionally belligerent, sober, and of normal mental capacity.

There has been a movement to subjectivize the standard, i.e., to merge the defendant’s personal characteristics into the ordinary/reasonable person. The MPC assesses reasonableness “for the viewpoint of a person in the actor’s situation. This clearly includes handicaps like blindness or external circumstances such as shock from traumatic injury or extreme grief. On the other end, it does not include idiosyncratic moral values. In the middle is a deliberately gray area left to the jury. “In the end, the question is whether the actor’s loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen.”
b.    Cultural Norms
To what extent should cultural differences shape the reasonable person standard? The risk is that the effort to recognize cultural disparities can trivialize the normative anti-killing message of the criminal law.

People v. Wu
Defendant challenged her conviction of second degree murder of her son and sentence to prison from 15 years to life, contending that the trial court erred in refusing to give two requested jury instructions, one relating to the defense of unconsciousness and the other relating to the effect that her Chinese cultural background may have had on her state of mind when she killed her son.
Held: Ct Rev’d her Conviction the issue of unconsciousness had not been adversely resolved toward defendant under other instructions given. The jury may consider evidence of defendant's cultural background in determining the presence or absence of the relevant mental states, which was clearly relevant on the issues of premeditation and deliberation [Ct noted that Def was under lots of stress from family & adulterous husband]
WU Ct upheld the EED test in assessing her manslaughter charge
Unintentional Homicide
Negligent and Reckless Homicide
Generally, involuntary manslaughter is when a person recklessly disregards a substantial risk, and someone is killed because of it. Only a few states allow a manslaughter conviction on the basis of ordinary negligence.

Commonwealth v. Welansky
Fire broke out in Def’s nightclub, many patrons and staff were killed or injured because there were inadequate, blocked, or locked exits. The court affirmed defendant's conviction for manslaughter. The court held that the prosecution was not required to prove that he caused the fire by some wanton or reckless conduct. A fire in a place of public resort was an ever-present danger. It was enough to prove that death resulted from defendant's wanton or reckless disregard of the patrons’ safety in event of a fire from any cause.
Def can be found guilty of Involuntary Manslaughter even w/out a true affirmative act

State v. Williams (Wash. 1971) [Liability based on ordinary negligence]  
Trial Ct convicted Def’s for negligently failing to supply their 17-month old child w/necessary medical attention even though defendants were ignorant as to the seriousness of the child's illness. The appellate court affirmed defendants' convictions, holding that defendants were properly convicted of manslaughter even absent a finding that their misconduct was willful because defendants breached the statutory duty set forth in  HYPERLINK "http://www.lexis.com/research/buttonTFLink?_m=eb83d65e1d9d53fb46a7ba10cbc2879b&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b4%20Wn.%20App.%20908%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=1&_butInline=1&_butinfo=WACODE%2026.20.030&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzb-zSkAt&_md5=027642988d400d942ddf552694b18c2f" \t "_parent" Wash. Rev. Code § 26.20.030 without lawful excuse or justification. Ct noted that the Williams feared Social Service would take their child away b/c of high removal rate of children from Native American families & both parents well below normal intelligence.
Held: Applying the standard of ordinary caution, defendants were put on sufficient notice of their child's illness to have required them to obtain medical care for the child.
Failure to seek medical care for their child is ordinary or simple negligence suffice to est. a manslaughter conviction
Wash Code (RCW 9.48.060) Under WA law, ordinary negligence is suffice to est. liability [See pp 371]
This is different from CL std for Involuntary manslaughter where the breach had to amt to more than mere ordinary or simple negligence.
Why ordinary negligence?
 
Felony-Murder
CL Felony Murder Def guilty of murder if he kills another person during the commission or attempted commission of any felony. The felony-murder rule applies whether a felon kills the victim intentionally, recklessly, negligently, or accidentally and unforeseeably—strict liability for deaths that occur during an intentional felony (applies to accomplices as well as principals)

People v. Stamp [Reprise on Foreseeability & Causation]
Defendants entered a building, ordered the employees to lie on the floor, robbed the building, and fled. The owner of the building was badly shaken up by the Def’s robbery, this later led to his death due to heart attack. Defendants were found guilty of first-degree robbery and first-degree murder and they appealed. One issue on appeal was whether the felony-murder doctrine should have been applied in this case due to the unforeseeability of the owner's death. Ct held that b/c the homicide was a direct, causal result of the robbery, felony murder rule applies (even if death was not a natural or probable cause of the robbery).
Held: 1st Degree- Felony Murder Conviction Affirmed doctors testified that “But-for” the robbery there would not have been a heart attack; no reqmt that the killing occur during or be part of the felony (b/c owner died after the robbery took place)
MPC 1.12(5)= MPC gravitates toward a presumption of recklessness
a.    Purposes of the Felony-Murder Rule
Traditional rationale for the felony-murder rule:
The felony establishes the mens rea of gross recklessness
An intentional felon deserves to be held strictly liable for any deaths
Raising the stakes will deter people from committing the original felony
Induce felons to commit their felonies more safely (marginal deterrence)

Is the point of felony murder rule to make robberies safer? Then only held responsible for guns. Does a felony murder rule defeat the notion of marginal deterrence? In the same position if someone accidentally dies than if the robber kills someone

Greater accountability if the result is worse, regardless of the intention. Does the felony murder rule chuck out foreseeability? Strict liability for high-risk crimes not to deter the murders but to deter the robberies themselves. The law is actually piggybacking off the arbitrariness of the victim’s health and condition.

Is Stamp more blameworthy because his victim died? Attempted crime is always punished less than completed crime. Often the difference in harm makes the difference in punishment.

Retributive – make the robber bear some of the costs of the death, to balance against the family’s pain and loss
Capital Murder and the Death Penalty
Capital murder is a murder that is eligible for the death penalty.
History of the Death Penalty in America
Independence to mid-1800’s – Automatic death penalty. Most homicide and all murder automatically punished by death (this led to juries not convicting b/c knew the punishment was so severe). States gradually added degrees and restricted the death penalty to first-degree murder.
Mid-1800’s to 1972 – Complete Jury discretion.  Jury or judge had absolute discretion, with absolutely no guidance from the law. “Look inside your conscience and decide whether the defendant should live or die.” In practice, led to arbitrary and discriminatory administration of the death penalty.
1972 – Furman v. Georgia. Supreme Court struck down all death penalties in the US as they were currently operated.

1976 to present: After Furman, guided discretion is the general approach:
1) Mandatory death sentences for certain crimes – struck down
2) Pyramid (Georgia) Narrowing function
Bottom part of pyramid is all potentially DP eligible murders but then as you move up the pyramid some murders are weeded out;

                          Jury discretion
        Mitigating Circumstances
             Murders with Aggravating Circumstances
     -----------First degree (Capital) Murder-------------
---------------------All Murders-----------------------

Weighing statutes (Alabama, MPC)= weigh the aggravating (additional wrongdoings) and mitigating circumstances (good factors in favor of Def)—note that mitigating & aggravating circs are generally enumerated in the State DP Statutes (& MPC)
Special questions
Intentional
Likelihood of future dangerousness
DP Statutes & Sentencing Today= DP trials involve 2 separate phases (guilt/conviction phases, then sentencing phase); generally DP Statutes have a list of aggravated circs (which P has to try to prove) and mitigating circs (Def tries to prove these) and the dispute at Ct focuses on those circumstances***
Reforms of DP Sentencing- sought to eliminate factors and reduce discretion in the system (want predictability & consistency); BUT discretion remains today

Arbitrariness more troubling for aggravating circumstances than for mitigating circumstances, to prevent more people from getting the death sentence

What is the relationship between consistency and fairness? The more you go for individualized sentencing and open up mitigating circumstances, the more inconsistent the result. Either you improve consistency or improve fairness in individualized sentencing, but a move toward one is a move away from the other.

Felony-Murder and the Death Penalty
*New Capital Death Penalty Statues from a deterrent approach to punishment, weighing statutes viewed as est. marginal deterrence; from retribution approach- supports the narrowing function (= reducing discretion in the application of the DP and striving for consistency,

Olsen v. State (WY. 2003)
Def appealed a capital murder conviction & DP sentence. Ct Vacated Def’s death penalty sentence b/c 2 of 4 aggravating circs which Def was convicted on were invalidated.  An auto rule of affirmance in a weighing State is invalid, b/c it would not give the Def the indiv treatment that would result from actual re-weighing.
Mitigating Circs the Ct accts for= Def’s intelligence; model prisoner; loyalty to friends/family, EED
Note the tension btwn the goal of narrowing & goal of individualization of mitigating circs

*Mitigating Circs- can go to 2 things: 1) Characteristics of the Def; OR 2) Factors of the crime;

Tison v. Arizona(US 1987) [Mens Rea Limit on the DP]
Tison est. a plan w/his family and prison mate Greenwalt to escape prison (in there for life for killing a prison guard while trying to escape). After a successful escape this time group had flat tire and had to flag down a car so they could steal the car. The 2 Def’s here watched their father and Greenwalt kill the four victims in that car that pulled over to help them [mens rea = “reckless indifference in
Held: Ct concludes that the Def’s major participation in the felony committed as well as a culpable mental state of reckless indiff to human life, is suffice to satisfy the Edmund culpability requirement.
Ct concluded that Def’s didn’t fall in the intent to kill category, thus their sentences were disproportionate the crime.
Ct cites Edmond v. Florida (1982) – where this Ct reversed the death sentence of Def convicted of felony murder b/c his participation was so tangential that it could not justify the death sentence.
Ct did not eliminate the possibility of  DP for felony murder if it shows a reckless disregard for human life.

Race and the Death Penalty
*Victim Race Discrimination & the 8th Amendment= the DP is not forbidden by the 8th Amend (it just limits its use to Capital murder cases). Principles of proportionality applied to est. whether cases to apply the DP to.

McCleskey v. Kemp(1987)
Def/Black man was convicted and sentenced to death for murder of white police officer. Def convicted of two counts of armed robbery and one count of murder. At the penalty hearing, the jury imposed the death penalty because petitioner did not provide any mitigating circumstances. The state supreme court affirmed the trial court's decision and denied a petition for writ of certiorari. Petitioner then filed a petition for a writ of habeas corpus in federal court in which he alleged the state's capital sentencing process was administered in a racially discriminatory manner in violation of the Fourteenth Amendment. Petitioner based his claims on a study that indicated a risk that racial consideration entered into capital sentencing determinations. The appellate court affirmed the lower court's decision and the Supreme Court granted certiorari.
Held: The Court held that the statistical study did not present substantial evidence that would require a reversal of petitioner's conviction. The Court concluded that the lower court had properly applied Georgia law.
Baldus study (accepted as valid by Sup Ct) showed systematic application of race to the death penalty. Can’t prove intentional discrimination in this case; Study does not est. a constitutionally significant risk of racial bias affecting GA capital sentencing
Study notes that DP used more often when a Def kills a white victim and DP was assessed in 22% of the cases when Black Def killed white victims
Note- when a party makes a 14th Amendment Equal Protection claim, the Cts requires intent—cannot just impute discrimination;
Batson v. KY- Ct upheld a 14th Amend violation re: the jury composition and claim that prosecutors struck jurors based on race. To est. race discrimination clam re: jurors the Ct est. a 3-prong test:
=1) Racial discrepancy exists; 2) Burden of Proof switches to prosecution who must respond/explain why they in good faith struck down the juror; 3) Defense must prove that Prosecutor’s claim was pre-textual*

Race of victim – white victim is 4.3 times more likely to get death penalty
Race of defendant – Black defendant 1.1 times more likely to get death penalty

“We’re not going to assume that what is unexplained is invidious.” Can assume that there may be discrimination at various levels of the system (the prosecutor, jury).
What the Court ultimately says that there is a risk of race affecting the death penalty, but that risk is not high enough OR
These numbers are about past practices, but don’t necessarily reflect what happens today

How do you argue that these statistics matter in McCleskey’s case? There was a greater likelihood that he was sentenced to death because the victim was white than if the victim was black. How does this make a constitutional claim?
Eighth amendment claim against cruel and unusual punishment
Fourteenth amendment claim against equal protection

Was there an unfairness to McCleskey that he got the death penalty, or is the unfairness that the killer of the black victim did not? For equal protection, you can equalize up or equalize down. The answer is not to let McCleskey off the hook, but to value black life more and to give the death penalty to killers of black victims.

IV. Rape Law:
Beneke- Men on Rape
Estrich- Real Rape
Berger- Not so simple Rape
Debating Rape Definitions-
Riophe- Date Rape’s Other Victim
Antioch College Policy
Rape Statutes-
Rape in the US- Vast majority of rape victims are attacked by non Strangers; only 22% raped by strangers; some stats suggest that only 1/5 of all rapes are reported and only about 35% lead to arrest;
Evolution of Rape Rules- traditionally Rape did not have a mens rea requirement; today most jurisd have reformed their rape law schemes so to increase victim’s chance of winning at trial [i.e. Evidentiary barriers to rape prosecution have been lowered; many jurisd frame the crime generally, have redefined the core elements of force and non-consent and lowered the obligation to prove resistance as part of proving force]
MPC 213.1 = Rape & Related Offenses- 1) Rape = male who has sexual intercourse w/female not his wife, is guilty of rape if…1) he compels here to submit by force or by threat of imminent death, serious bodily injury…2) has impaired her power to appraise or control her conduct….3) the female is unconscious
CL Breakdown on Rape:
Rape = “carnal knowledge of a woman forcibly and v. her will” (Blackstone)
Men only- and a man couldn’t rape his wife
No clear prevailing std as to how much force and lack of consent required
Harcourt Rape Pendulum = Rape laws were traditionally Pro-Def, had no mens rea reqmt and required utmost resistance from the Victims; then
Shift to focus on Force Reqmt which has taken us back to resistance (b/c force has been defined by what’s necessary to overcome victim)
MPC Breakdown on Rape:
213.1(1)= doesn’t require that the act be v. her will; rather requires the man “compels her by force”
Theory of the MPC is that the offense should focus on the physical aggression of the male rather than the state of mind of the victim (thus no clear mens rea est. in the MPC)
Is this backwards? Shouldn’t we view Rape law as protection of sexual autonomy and thus focus should be on woman’s lack of consent, not Def.
Grading of the Offense-
1st Degree Felony= if Def compels the Victim by force and either: a) inflicts SBH; or b) victim was not a voluntary companion
2nd Degree felony= if both factors a & b are missing but the sex is compelled by force [ MPC 213.1(1)]
3rd Degree felony = Gross Sexual imposition = Def compels here to submit by any threat that would prevent resistance by a woman of ordinary resolution [MPC 213.1(2)]
Misdemeanor Sexual Assault = if involves sexual contact which the actor knows is offensive to the other person [MPC 213.
Threats-
Force under the MPC can be est. thru physical force of threats to kill either directed at victim or anyone else [MPC 213.1(1a)]
Impairment-
213.1(1b)= where the Def acts so to impair the Victim’s ability of the victim to appraise or control her conduct
Age-
2nd degree has an age limit = victim must be under 10 yrs old;
213.3(1a)- 3rd Degree corruption of minors and seduction is punishable under Rape if the victim is less than 16 yrs old
Sexual Act-
Under CL rape was limited to vaginal penetration but the MPC and most States extend the def’n of sexual intercourse to include…
Procedural provisions-
213.6(4)= requires a “prompt complaint” by the victim and 213.6(5) est. that no felony conviction can be based upon the uncorroborated testimony of the victim
Rape Statutes-


Act Requirement
Mens Rea
Brown/ Dorsey
Sexual intercourse +
Physical force +  
             utmost/reasonable resistance by the victim                         (manifestation of nonconsent)
Intent to engage in a sexual act
Alston
Sexual intercourse +
Physical force +  
     nonconsent manifested by the victim

Alston A
Sexual intercourse + long-term violent relationship

Intent to have sex?
? negligence ?
? strict liability ?
Alston B
Sexual intercourse +unwanted force
                               + nonconsent
Strict liability for force
Negligence for nonconsent
Alston C
Sexual intercourse +unwanted force
                               + nonconsent (subjective on the                                                 
            victim’s mind)
Strict liability
Smith
Sexual intercourse +nonconsent
Negligence (reasonable person would know)
Barnes
Sexual intercourse +force or threat of force
               + nonconsent
Negligence
MTS
Sexual intercourse +no affirmative consent


1.    Requirement of Utmost Resistance
Traditional rape statutes required that the victim fight to the utmost of her ability, or it must not really be rape; had to prove very overt force.

Brown v. State (1906)
Grant Brown/Def charged w/raping Edna Nethery, female age 14, by force and v. her will. The 2 were children of neighboring farmers & knew each other well, Edna was going to her grandmother’s house when Def seized here. The prosecutrix testified at defendant's rape trial that she screamed and tried to escape, but made no mention of any use of her hands or legs to prevent intercourse. She told her grandmother after she discovered blood. There were no marks on either party or their clothing that indicated a struggle. Defendant claimed the sex was consensual.
Held: Rape Conviction Rev’d without corroboration, such as signs and marks of the struggle upon the clothing and persons of the participants and the victim's complaint at the earliest opportunity, the prosecutrix's testimony was not clear and convincing enough to support a guilty verdict. Resistance requires using force v. force, not merely retreating from force.
Actus reus = Force
Mens rea = Implied intent
Att. Circs = Utmost resistance
Harcourt But all that is required in Brown is utmost resistance; Brown Ct depicts a rule that seeks an evidentiary presumption that can determine the outcome if have conflicting stories from Def & Victim  
Application of “Utmost Resistance Rule” est. a very high threshold for est. a rape case; doesn’t allow for many rape claims to reach the jury b/c high burden in the victims of robbery, esp.
2.    Reasonable Resistance
Expansion of Utmost resistance Reqmt: Early reforms of the rape law did not eliminate the resistance requirement, but rather Cts expanded the exception to the earlier rule for cases where resistance would be futile. They redefined the required resistance as reasonable or earnest.
Earnest Resistance = resistance of a type reasonably to be expected from a person

People v. Dorsey
P was riding the elevator at here apt building when it stopped btwn floors and Def raped her. Def charged w/rape & sodomy. Def then moved for dismissal on grounds that P failed to present sufficient evidence upon which the jury could find beyond a reasonable doubt that defendant committed the crimes charged. The facts indicated that while in an elevator with complainant, defendant stalled the elevator, and demanded intercourse and sodomy. P submitted without resistance and without an explicit threat from defendant. The court denied defendant's motion, concluding that P est. sufficient evidence from which the jury could conclude beyond a reasonable doubt that defendant engaged in sexual acts with complainant by means of forcible compulsion, in that he used physical force capable of overcoming her resistance, and he created an implied threat of harm.
Key Pts: Ct found no express, but an Implied threat; Def didn’t use phys force v. P but manipulating the elevator = use of force v. P
Ct looks at all the circs to determine amt of resistance required
Rape Requirements: 
Act = force;
Att circ = reasonable resistance (w/threat exception)
Mens rea = objection
NY Penal Statute 130.00= women only has to exert earnest resistance… meaning resistance of a type reasonably to be expected from a person who genuinely refuses to participate…[see pp 907]

New social science suggesting that resisting rape causes less rapes overall. Is this an argument for reinstating the rape requirement? In deciding where the system should be on the spectrum, what role is there for the idea that resistance is good. Can argue that not all societal interests line up with the victim’s interest

Resistance is not irrelevant, it can still be probative of nonconsent or force (p. 1099). If you’re trying to get to the mens rea of the defendant, lack of resistance can be considered as supporting his reasonable belief.

Does rape fit under a category of sex, most of which is consensual and some of which is not, or under assault, which is mostly nonconsensual?

In Brown, the resistance rule shifts the balance of power to the man, the rapist. Resistance requirement is another device, like the burden of proof, for allocating power.

3.    Force and Non-consent
Many states have eliminated the resistance requirement, so that the elements of rape = force + non-consent [BUT resistance helps Cts est. force]

People v. Barnes
P and De had known each other for years and Def invited P over to drink & smoke, led to Def raping P.  Def/Appellant was convicted of rape and false imprisonment. The court of appeal reversed the convictions as unsupported by substantial evidence after applying former statute, which required the victim to resist the act. Appellant argued that the legislature's amendment deleting references to resistance did not change the definition of rape since resistance was never an element of the crime and that the amendment had no impact on the factors used in evaluating his claim of insufficiency of the evidence.
Held: Rev’d Judgment of Ct App b/c sufficient evidence to est. Def’s Rape Conviction the court of appeal had erred in applying the requirements of former § 261 to the facts of the case. The court found that amended § 261 was clearly in effect when the offense occurred for which appellant was convicted which gets rid of resistance reqmt (focuses on force).
Rape Requirements: 
Act = force, threat of force
Att circ = Non consent
Mens rea = ?
CA Statute Sec. 261 (1980)- see pp 915

State v. Alston- This case depicts difficulties courts face when the alleged rape involves a couple w/prior history of violent, sexual relationship*
Defendant was convicted of second-degree rape and kidnapping. Defendant appealed and argued evidence was insufficient to support his convictions. Court agreed. Although victim's general fear of defendant may have been justified by his conduct on prior occasions, absent evidence that defendant used force or threats to overcome will of victim to resist sexual intercourse alleged to have been rape, such general fear was not sufficient to show defendant used force required to support conviction of rape.
Held: Prosecution's evidence was sufficient to show act of sexual intercourse in question was against victim's will; BUT
Insufficient to show act was accomplished by actual force or by threat to use force unless she submitted to sexual intercourse.
Alston (& Dorsey, Brown) are very Pro-Def rape policies*
Actus reas= force or threat of force (no resistance reqmt!)
Mens Rea = NONE
Att. Circumstances = Non-consent reqmt

In Alston, valid positions?
Because they were in a violent relationship, there could be no consensual sexual intercourse. She never consented.
There had to be a tight connection between the force or threat of force and the sexual intercourse for it to be rape. Only way to have consensual sex in a violent relationship?
Some middle ground on consent?
4.    Nonconsent Only
Some jurisdictions eliminate force as a requirement and focus solely on Non-consent* [Moving to a more Pro-Victim Rape Policy]
   
State v. Smith
Defendant invited a woman he met at the bar back to his apartment and made advances on her. Though the woman repeatedly rejected his advances, defendant persisted. The woman testified that she believed defendant was determined to have sex with her and that he would hurt her if she did not go along with it. She reported the assault immediately. Defendant was convicted of sexual assault in the first degree. On review, defendant claimed several errors including that the trial court should have granted his motion for acquittal due to insufficiency of the evidence on the element of lack of consent. Defendant argued that he did not realize that the woman was not consenting, and that such subjective intent on his part was an element of the crime.
Held: Rape conviction Aff’d No specific intent, just general intent to perform the physical acts constituting the crime is necessary to est. 1st degree sexual assault; Ct rejected the subjective std for est. consent, jury could reasonably find that P’s conduct did not indicate her consent
How does Smith case differ from std. upheld in Barnes and Dorsey?
Smith Ct- Non-consent is key determinant of sexual assault
Barnes Ct- Def’s use of force or threat of force is key determinant
Dorsey Ct- P must demonstrate and prove reasonable/earnest resistance (not utmost) to est. rape charge
No Mens rea- Ct here rejects any emphasis on the Def’s mens rea (mens rea not important to sexual assault charge) & focuses on non-consent.
Connecticut General Statutes 53a- 70

5.    Lack of Affirmative Expression of Consent
The final step in the continuum is a definition of the actus reus of rape as sexual penetration with some kind of affirmative expression of consent.
Actus Reus = Sexual penetration + Affirmative expression of consent

State ex rel . M.T.S. [Lack of Affirm Consent = element of Actus Reas]
Acquaintance rape case The trial court determined that defendant juvenile was delinquent for committing a sexual assault. The trial court's decision was based on evidence that Def/MTS (age 17) and a fifteen-year-old girl engaged in consensual kissing and thereafter in actual sexual penetration of the girl to which she had not consented. The appellate court reversed, concluding that the nonconsensual penetration did not constitute sexual assault because it was not accompanied by some level of force more than that necessary to accomplish the penetration.
Held: Judgment of App Ct Reversed Any act of sexual penetration engaged in by defendant without the affirmative and freely given permission of the victim to the specific act of penetration constituted the offense of sexual assault.
Ct notes Reform of Rape law has shifted focus from victim’s resistance to Def’s use of force (want to break connection btwn force & resistance) which leads to shift from Pro-Def rulings to Pro-Victim rulings***
MTS is unique b/c shift focus entirely from P to def
New Jersey Code of Criminal Justice 2C:14- sexual assault = sexual penetration w/another person w/the use of physical force or coercion [see pp 931}

The force requirement is coextant with penetration with no consent. No requirement for hitting, threats, coercion, etc. Penetration itself is force if not consented to.

Possible mens reas for this rule:
Purpose= intended to violate her consent
Knowledge – knew she didn’t give her consent
Recklessness – ignored a substantial risk that she hadn’t given consent
Negligence – a reasonable person would have known she hadn’t given consent

Defense’s argument would be that the victim’s actions would indicate consent to a reasonable person. Consensual kissing and petting in her bedroom at 2 a.m.

If consent can be given through actions and conduct, why wasn’t her earlier voluntary actions constitute consent? If he stopped as soon as she said “no”. Do you need verbal consent under this rule not to be liable?

To find him guilty, would you have to find that a reasonable person would not assume consent under the circumstances (kissing and petting in her bedroom at 2 a.m.)? No affirmative consent, even given the kissing, heavy petting,

Her mental state is not absent from the picture, because she is the one who decides to tell her mother and the police

Do you have to show what the victim did to show what she did not do (give consent)? We get to the most advanced stage of rape reform, and we’re still putting the victim on trial? Is there something wrong with the legal rule that we would come to this debate? Why phrase this in terms of the reasonable person?
Mens Rea Requirement
The mens rea for rape concerns the victim’s lack of consent. The general rule is that a person is not guilty of rape if had a genuine and reasonable belief that the victim voluntarily consented to intercourse with him. Smith.

Issue of mens rea rarely arises in forcible rape prosecutions. Defendant is not entitled to mistake of fact instruction unless there was substantial evidence of equivocal behavior on the victim’s part.

Commonwealth v. Fischer
Appellant/College freshman was convicted of involuntary deviate sexual intercourse, aggravated indecent assault, and related offenses in connection with an incident between him and a female student at the dorm. Appellant was sentenced to two to five years in prison. Appellant argued that he received ineffective assistance of counsel because his trial counsel failed to request a jury charge on the defense of mistake of fact.
Held: The Def’s belief as to the victim's state of mind was not a defense to sexual assault crimes (thus NO Mistake of Fact Defense!) The court recognized that this rule presented scienter problems in the context of sexual assault under forcible compulsion other than by physical force, such as "date rape." However, these considerations did not apply in this case because appellant's victim alleged physical force in the sexual assault.
Ct rejects the idea that there is a “mistake of fact” defense. Therefore, a strict liability mens rea is asserted, b/c his state of mind is irrelevant.
Reasonable mistake of fact – a reasonable person would not know. Equivalent to a mens rea standard of negligence.
Pure mistake of fact – defendant made a mistake. Mistake could be wildly unreasonable, but still a mistake. Equivalent to a mens rea standard of “knowingly”
18 PA CSA sec. 3101 – see pp 954

Court decides not to adopt a reasonable mistake of fact/negligence standard, and there is no pure mistake of fact, thus Ct asserts SL—if there was forcible compulsion and no consent, then he’s guilty.

MTS and Antioch seems most advantageous to victim, but since negligence is involved it shifts the attention back to the victim’s conduct and whether a reasonable person would have thought consent.
MTS v. Antioch MTS requires affirmative consent that doesn’t have to be verbal, can be implied from P’s conduct; BUT Antioch’s consent reqmt has to be “willing & verbal agreement to engage in sexual behavior”
BOTH put little focus on Def’s Mens Rea***

Why don’t we want to know everything about the victim?
Rape-shield laws= an attempt to shield evidence about the victim so that it doesn’t get presented at trial. Discouraging complaints because women don’t want to expose their personal lives to the public
Debating Rape Definitions
Antioch College policy:
Verbal consent required at each stage,
Single-initiation requires verbal consent, previous agreement or mutual consent requires only gestures.

If you strip MTS of physical gesture as consent, then what you have is more or less the Antioch policy.
Evidentiary Reforms
Disappearance/repeal of:
Cautionary instruction
Corroboration rules
Prompt complaint rules
Inquiries into victim’s sexual history (Rape shield statutes)
Marital Rape
At common law, a man could not be convicted of raping his wife. Those days are mostly past us, thank God.

People v. Liberta (NY 1984)- Def was living apart from his wife due to family Ct order to move out, he raped wife in presence of their 2 yr old son. NY Penal law says a man cannot be prosecuted for raping his wife, BUT CT treats Def as an unmarried man b/c of the Family Ct Order removing him from the house. Def’ s Rape Conviction Aff’d 1st Case to reject the Marital Rape Exemption b/c it’s unconstitutional

*Elements of Rape Statutes Recap: [Moves from Pro-Def to Pro-P]
Brown v. State- Force + Utmost resistance,
People v. Dorsey- Reasonable/earnest Resistance + Threat of Force; (elevator rape case)
People v. Barnes- Force/threat of force + NO resistance reqmt; (P went to buy drugs from her neighbor/Def)
State v. Smith- non-consent; NO force & resistance requirements;
M.T.S.- Lack of affirmative consent,
Commonwealth v. Fischer- mens rea (Def’s reasonable belief that P consented); forcible compulsion;
Antioch College Policy- Lack of Affirmative Consent
Harcourt Pendulum Swing = Pro-Def to Pro-Victim = Focus on Resistance  Focus on Force + Non-Consent  Back to focus on Def’s Force Today = Force + Non-Consent

V. Justification & Excuse:
VII. Justification and Excuse:  Justification and excuse are two categories of criminal defenses for conduct that is ordinarily criminal, but which under special circumstances is not wrongful or can be excused.  A justification is when a person is justified in using force when he correctly believes that the force is necessary to prevent imminent unlawful harm and excuse is when a person reasonably but incorrectly believes that the use of force is necessary.  MPC does NOT try to draw fine line btwn the 2 (just est. conduct that isn’t punishable). There are four prongs along which justification and excuse can be distinguished:
Wrongdoing – Under justification, the actor has advanced a social interest and has thus done no wrong. Under excuse, circumstances so limited voluntariness that the actor is not morally blameworthy or could not have been deterred. Excuse denies a particular actor’s responsibility for an act.
Justification defense= actor denies wrongfulness of the conduct
Excuse defense = actor denies responsibility for (wrongful) conduct
Legality – Under justification, there is a tension between the discretion for judging conduct and the obligation to inform the public of what is legal. Identifies situational exceptions to an overly broad rule. Under excuse, the actor is unable to make a responsible choice under the circumstances.
Burden of Proof – the Prosecutor is often required to bear the burden of proof that the actor did anything wrong.
Third Parties – Third parties can assist and cannot interfere with justified conduct. But third parties may not assist or interfere with conduct that is excused but wrongful unless the third party also has an excuse.
Excuses won’t extend to 3rd parties; BUT justification defense can
Self Defense, Necessity, & Duress:
Elements:  D acting (1) under extraordinary pressure, (2) from which there is (or appears to him to be) no reasonable escape, (3) to do something that involves injury to his or another’s person or property, and that, in the absence of the emergency, would clearly be criminal (although the defendant may not recognize or know what).

Spectrum of Possible Standards for a Self-Defense Defense:
---------------------------------------------------------------------------------------------------
Purely        MPC      Reasonable                  Objectively        Reasonable
Subjective          to him          Reasonable        Person
     A.  MPC § 3.04 Use of Force in Self Protection: 
(1) Use of Force Justifiable for Protection of the Person: Subject to provisions of this § and §3.09, use of force upon or toward another is justifiable when actor believes that such force is immediately necessary for purpose of protecting himself against use of unlawful force by such other person on present occasion.
(2) Limitations on Justifying Necessity for Use of Force  (a) Use of force not justifiable under this §:  (i) to resist an arrest that actor knows is being made by peace officer, although arrest is unlawful; OR  (ii) to resist force used by occupier or possessor of property or by another person on his behalf, where actor knows that person using force is doing so under claim of right to protect property, except this limitation shall not apply if:  (1) actor is public officer;  OR  (2) actor has been unlawfully dispossessed; OR (3) actor believes that such force is necessary to protect himself against death or serious bodily harm.  (b) Use of deadly force not justifiable unless actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:  (i) actor, with purpose of causing death or serious bodily injury, provoked use of force against himself in same encounter; OR  (ii) actor knows that he can avoid necessity of using such force with complete safety by retreating or by surrendering possession of a thing to person asserting claim or right thereto or by complying with demand that he abstain from any action that he has no duty to take, except that:  (1) actor is not obligated to retreat from his dwelling or place of work, unless he was initial aggressor or is assailed in his place of work by another person whose place of work actor knows it to be; AND (2) a public officer justified in using force in performance of his duties is not obliged to desist from such efforts to perform such duty, effect such arrest, or prevent such escape b/c of resistance or threatened resistance by or on behalf of person against whom such action is directed.  (c) Except as required by (a) and (b), person employing protective force may estimate necessity thereof under circumstances as he believes them to be when force is used, w/o retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaining from any lawful action.
3 Main Deadly Force Rules in MPC= (1) If D did not start the unlawful conflict, he may use deadly force against V if he believes that such force is necessary to combat an unlawful deadly assault by V if D has retreated, D knows of no safe place to retreat, or D was at home or at his place of work and V is not a coworker; (2) if D did start the unlawful conflict he did so without the purpose of provoking a deadly conflict; and (3) D may not kill V in self-defense if he started the conflict with intent to cause death or great bodily harm unless he withdraws from the conflict.
MPC recognizes an imperfect defense whereby D can be prosecuted with a lesser offense with a mens rea of negligence or recklessness if he makes a mistake of fact.
MPC 3.05 = Use of Force to Protect Other Persons
B.  MPC § 3.09 Mistake of Law as to Unlawfulness of Force: 
(1) Justification defense in 3.04 through 3.07 unavailable when: (a) actor’s belief in unlawfulness of force or conduct against which he employs protective force or his belief in lawfulness of an arrest which he endeavors to effect by force is erroneous, AND (b) his error is due to ignorance or mistake as to Code provisions, any other provision of criminal law or law governing legality of an arrest or search.
(2) When an actor believes that use of force upon or toward another is necessary for any purpose for which such belief would establish justification under 3.03 through 3.08 but actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to justifiability of his use of force, justification afforded by those § unavailable in prosecution for an offense for which recklessness or negligence suffices to establish culpability.
(3) When actor is justified under 3.03 to 3.08 in using force upon or toward another but he recklessly or negligent injures or creates a risk of injury to innocent persons, justification afforded by those § unavailable in prosecution for such recklessness or negligence towards innocent persons.
The MPC is drafted in terms of the actor’s subjective belief in the need to use force.  The need doesn’t need to be reasonable.  However, if he is reckless in bringing about the situation or in evaluating the necessity in using force, then he is liable for a crime with recklessness or negligence as the mens rea.
People v. La Voie (Colo. 1964)- Def/pharmacist accused of murder but Trial Verdict found him not guilty; Def had left work at 12:30 am, and while driving home a car w/four intoxicated men slammed into his bumper and accelerated, causing Def’s car to slide through red light. Def got out of his car w/gun in hand and as the men got out and approached him they screamed threats/profane language. Was Def’s conduct justifiable homicide? [Yes]
Held: Def Not Guilty : Def had right to defend himself v. threat of assault of those whose lawlessness and utter disregard of his rights resulted in justifiable killing of one of them (he was a stranger to the 4 men and was peaceably on his way home)
Did Def have duty to retreat? Was danger imminent? Did Def provoke the attack by getting out of his car?
Rule= Colo. Law of Justified Homicide = if one has reasonable grounds for believing he’s in danger of being killed/receiving great bodily harm, or has imminent fear, he may act to defend himself to the extent that it takes another life (even if mistaken as to the danger)
MPC 3.09- Act not justified if there’s a Negligent/Reckless mistake of fact…[MPC 3.04 & 3.09 = Subjective std]  
Battered Women’s Syndrome:  BWS describes a state of low self-esteem and learned helplessness that battered women experience as the result of their inability to prevent abuse.  Evidence used to enhance D’s credibility and explain to jurors why D subjectively believed that the decedent was about to kill her (when he might have been asleep or otherwise passive) and to demonstrate that this belief was objectively reasonable to a person suffering from the syndrome. 
BWS = regular pattern of spousal abuse leads to psychological condition of low self esteem and state of learned helplessness (belief that she cannot escape the abusive relationship)
The Sleeping Batterer – There has been mixed reception for a BWS defense when the husband is sleeping at the time.  It poses problems for the imminent-threat requirement of a traditional self-defense claim. 
State v. Norman – The NC Supreme Court held that the defendant was not faced with a choice between killing her husband or being killed or seriously injured. When husband was sleeping defendant could have resorted to other means to prevent the abuse = Ct rejected the BWS Defense
State v. Stewart – Defendant suffered physical and sexual abuse but was indecisive about how to respond to it. Kansas Supreme Court held that she wasn’t entitled to the self defense instruction because there was no imminent danger. There was ample opportunity for her to leave and a sleeping spouse is not imminently dangerous.
Battered Wife Contractor = (NOT allowed) Courts have universally rejected BWS when wives use the defense in cases where she has hired a contract killer.  In People v. Yaklich the Washington Supreme court held that it would be poor public policy to allow battered wife to escape punishment under self-defense while convicting the hitmen who actually killed the husband.
State v. Leidholm (ND 1983) – [BWS Case] Def/Janice and Chester Leidholm had a very violent marriage. Both parties abused alcohol.  On the day of the killing, the parties were fighting. Chester violently pushed her away from the phone when she tried to call the sheriff.  While Chester was sleeping that night, Def got a knife, and stabbed Chester. Held – Ct applied subjective rule. Under the objective rule, a reasonable person must have to believe that conduct is justified, either correctly (justified) or incorrectly (excuse). Under the subjective standard, the person’s unique situation is taken into account – question of whether the circumstances are “sufficient to induce in the accused an honest and reasonable belief that he must use force to defend himself against imminent harm.”
Court defines a subjective test of reasonableness: (1) D has to genuinely believe that she is at risk, (2) D’s belief has to be reasonable (at least some objectivity), (3) D must be non-negligent and non-reckless, and (4) When asking if a belief is reasonable, must be from the perspective of the accused.
Essentially, the court looks to reasonableness as from the perspective as someone who has been subjected to the same type of abuse and who suffers from BWS.
But See, State v. Norman & State v. Stewart (Ct rejected BWS defense)
Reasonableness Standard Recap (Objective—Subjective):
Leidholm lower Ct=     Strong Obj Std
Goetz Prosecution=     Objective (reasonable man in Goetz’s situation)
Leidholm Supreme Ct=    More Subjective (honest+ reasonable ground to believe)
Goetz lower Ct=     Subjective (reasonable to him)

Defining the Reasonable Person Standard:  The right of self-defense is not based on an objective reality (whether the person about to be killed represents a real threat to the life of the actor), but it is not based solely on the actor’s subjective impressions, either.  A person may only defend himself if he subjectively believes that deadly force is required and a reasonable person would also believe that it is appropriate under the circumstances. 
People v. Goetz (NY 1986) - Bernhard Goetz had been previously assaulted. Boarded subway train w/a gun, sat across from 4 teens from the Bronx were on the subway. They were not armed, except for screwdrivers that they intended to use to steal from video machines.  Demanded that Goetz give them $5. Goetz responded by shooting the teens. He shot one teen that he had missed so that he severed his spinal cord.   Goetz admitted that he had been injured in a mugging and that twice before he had used the pistol to scare away assailants.   Goetz admitted that he was shooting to kill. 
Held – Ct Rev’d b/c to uphold a completely subjective Std of reasonableness would be to allow citizens to set their own std for permissible use of force. Ct held an objective standard does not mean that circumstances facing the defendant cannot be taken into account.
What is the basis of the reasonable person in this case?  (1) The reasonable mugging victim?  (2)  The reasonable NYC subway user?  (3) The reasonable racist?  To what extent should race, age, sex, body language, and or apparel of V be taken into account when determining whether deadly force was necessary?
Difference between Liedholm and Goetz? – Liedholm relied on particularized understandings of her husband’s behavior whereas Goetz is relying on stereotypes.  At some point a defendant’s claim should not be a justification, but perhaps an excuse based on the fact that D is plagued with unusual mental or emotional characteristics.
C.  Necessity:  Necessity is a residual justification defense, a defense of last resort.  It legitimizes technically illegal conduct that common sense, principles of justice, and/or utilitarian concerns convince us is justifiable, but which is not dealt with – neither authorized nor disallowed – by any other recognized justification defenses.  Principle:  An actor should not be punished if he chooses the least harmful option.
Necessity & Duress:
Necessity= 
Typical cases = events tied to some natural causes/disaster
MPC 3.02
Duress=
Typical Duress Cases = someone has as gun to your head; see US v. Contento (man forced to smuggle drugs or they’d kill his wife)
MPC 2.09
Lesser of 2 Evils = looked at as a justification
Utilitarian perspective v. Retributivist perspective—
Utilitarian  perspective=
Lesser of two evils is a justification b/c it maximizes the social welfare
Necessity- not a utilitarian success b/c doesn’t max social welfare, BUT
Retributive perspective=
 Under Necessity defense, the act is less blameworthy, no moral wrong committed! 
Lesser of 2 Evils        Necessity        Duress       
Justification             Excuse            Excuse
Utilitarian (max social welfare)     Retributive (no moral wrong)

MPC §3.02= Justification Generally: Choice of Evils:  (1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise appear plainly.  (2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded . . . is unavailable . . . for any offense for which recklessness or negligence . . . suffices to establish culpability.
Elements of the Necessity Defense:  (1) actor must be faced with a clear and imminent danger, (2) D must expect as a reasonable person that his action will be effective in abating the danger that he seeks to avoid, (3) there must be no effective legal way to avert the harm, (4) the harm that D will cause by violating the law must be less serious than the harm he seeks to avoid, (5) the legislature cannot have weighed the competing evils against the actor, and (6) the defendant must come to the situation with clean, sometimes immaculate, hands.
Some states limit the use of the necessity defense, even if the elements are proven, in three ways: (1) must be an emergency situation, (2) does not apply to homicide cases, (3) limited to protection of persons and property (a person cannot act to protect reputation or economic interests.)
Queen v. Dudley & Stephens – Def’s were sailors caught in storm; men thought they would die of starvation so 2 of them killed Parker. Boat was rescued 4 days later. Held: Def’s guilty of murder not justified by necessity b/c the temptation of the act was not what the law has defined as necessity.
Utilitarian Perspective – killing one saves 3, so justified b/c maximizes social welfare, BUT how can we est. what max social welfare if there is no efficiency std to base that on (i.e. Pareto v. Kaldor Hicks efficiency?)
MPC 3.02(1a)- the harm Def causes cannot be greater than harm intended to be prevented by law
MPC 2.11 Consent= generally consent of the victim to conduct charged as an offense is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.
People v. Unger (IL 1977):  Def charged with crime of escape from jail. While serving a sentence for auto theft, defendant was transferred to honor farm.  A few days after his arrival he was assaulted and sexually molested by three inmates that he named at trial.  After the attack he received numerous threats from other inmates.  On the day of the escape he was threatened over the phone with death if he reported the assault to prison authorities. He was also threatened by an inmate wielding a knife attempting to force the defendant to engage in homosexual activities.  Def claims he left the farm to save his life.  None of these incidents were reported to prison officials because he feared reprisal.  He was apprehended two days later dressed in prison clothes. 
Held: the defense of necessity rather than compulsion applied because compulsion is a defense in situations where D is under duress and necessity is when there is a choice between a serious assault and committing a crime (lesser of 2 evils). In this case, Unger chose to escape rather than submit to the homosexual assault.
Compulsion not applicable b/c Def wasn’t deprived of his free will by threat of imminent phys harm
Necessity applicable b/c Def was subject to threatened abuse that was carried out, and he feared worse
Ct Applied 5 Lovercamp conditions for est. Necessity: (1) prisoner faced with specific threat in the immediate future, (2) no time to file complaint, (3) no opportunity to resort to the courts, (4) no evidence of force or violence towards prison employees or innocent people in the escape, and (5) prisoner immediately reports to proper authorities when he is safe from the threat. The court held that not all elements have to be present to make an affirmative defense of necessity.
Is this a Necessity or Duress case? =
Lesser of two Evils= risk of sexual assault v. he escapes—he chose the lesser of two evils by becoming an escapee and being charged w/ prison term for conviction of escape
Note that there were other procedures/steps that Unger could have taken, such as report the incidence to prison authorities—could assert this wouldn’t be a lesser of two evils b/c likely that if one reports such incidences they are likely to get assaulted again
Incentives Problem- by allowing escapees the necessity defense, gives prisoners incentives to try to escape b/c they can assert and manipulate this valid defense
MPC 3.02 v. 2.09—Choice of evils v. Duress—is there a distinction btwn the two—necessity often spoke of re: moral blameworthiness, while lesser of two evils asserts more utilitarian calculus and avoids blameworthiness
Note that Illinois Penal Statute asserted in this case takes the moral blameworthiness route
NOTE- the MPC does NOT have a separate Necessity Defense (but IL does), MPC uses “Lesser of 2 Evils” rubric (MPC 3.02)
Harcourt: Lesser of 2 evils = more objective; Necessity= more subjective
See Harcourt Notes on Political Necessity (Crim II, pp 12)
Harcourt: Necessity defense applies to Needle exchange cases (Bordowitz), Anti-nuclear plant cases (Warshow), & Anti-Abortion cases***
Doesn’t apply to Civil Disobedience protests & War Protest Cases (mere protests v. US policy, not acts to prevent immediate danger)
Notion of imminence is key*
Political Necessity Cases:
People v. Bordowitz (NY 1991):  Defendants charged with criminal possession of a hypodermic instrument.  Def’s had set up a needle exchange, aimed at giving IV drug users clean needles in exchange for dirty ones in the hopes of stemming HIV infection among that high risk population.  Can the defendants advance a medical necessity defense by showing that (1) the defendant reasonably believed that needle exchange was necessary to combat AIDS among IV drug users, (2) the benefits of the needle exchange outweigh the harm caused by violating the law, and (3) no other alternative is as effective as the needle exchange?  Held – A defense of necessity can be made in NYC to avoid an imminent public or private injury that is so serious that the desirability of avoiding the injury by violating the law is obvious under “ordinary standards of intelligence and morality.” 
Court defines defense of medical necessity. 
Commonwealth v. Leno (MA 1993): Defendant set up needle exchange, violating MA law against distributing hypodermic needles without a prescription.  Needles legally purchased in Vermont.  Cited HIV transmission as reason for needle exchange. 
Held – The court held that b/c the danger is not imminent and was debatable and speculative, the necessity defense does not apply.
Rejected medical necessity defense, holding that necessity defenses only apply when (1) defendant is faced with clear and imminent danger, not just a debatable or speculative danger, (2) action will abate danger, (3) there is no legal alternative to abate the danger and (4) the Legislature has not acted to preclude the defense.
State v. Warshow (VT 1980):  Defendants protested at a closed nuclear power plant, Vermont Yankee, was scheduled to be restarted.  The rally was designed to prevent workers from entering the plant and placing it back on-line.  Defendants wanted to present a necessity defense with evidence on the hazards of nuclear power plant operation.  Held – The court held that the long-range risks that the defendants alleged do not presently endanger health and safety. The desire to foreclose chances and possibilities does not fill the imminent requirement.
Rejected necessity defense for civil disobedience because necessity defenses require: (1) emergency without fault of the actor, (2) imminent danger, (3) no reasonable opportunity to avoid the emergency, and (4) injury must be sufficiently serious to outmeasure the wrong.
To be imminent, a danger must be, or reasonably appear to be, threatening to occur immediately, near at hand, and impending.
Caveat – We can’t use hindsight – the fact that the generator did not melt down – to judge Warshow’s belief. Jury, under necessity defense, has to place itself in the situation of the person at that moment given the probabilities calculation.
Reasonableness test inscribed into the necessity defense such that the actual weighing has to be one that we as a political community agree about.  However, this presents a problem for the lunch counter situation in the segregationist South.  Harcourt disagrees with this majoritarian view and instead believes that we should embrace the necessity defense across the spectrum, provided they come up with a good argument. It allows for the “crazies” among us to do what they think is right even though they are a marginalized minority.
“Political Justification cases”:t Today Cts tend to allow Def’s to make their political case to jury, a more importantly to the press, then judge usually instructs the jury to not consider the evidence—thus Def still gets opp to influence policy and the public—thus contemporary judges are tolerant of efforts to “use” jury trials to stage public debate re: controversial issues.

D.  Duress:  Duress or coercion is a common law defense to criminal conduct.  A person will be acquitted of any offense except murder if the criminal act was committed under the following circumstances: (1) another person threatened to kill or grievously injure the actor or a 3rd party, particularly a near relative, unless she committed the offense; (2) the actor reasonably believed the threat to be genuine; (3) the threat was present, imminent, and impending at the time of the criminal act;  (4) there was no reasonable escape; and (5) the actor was not at fault in exposing herself to the threat.
MPC, Duress § 2.09:
(1) It is affirmative defense that actor engaged in conduct charged to constitute offense b/c he was coerced to do so by use, 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.
(2) This defense unavailable if actor recklessly placed himself in situation in which it was probable that he would be subjected to duress. Defense also unavailable if he was negligent in placing himself in such situation, whenever negligence suffices to establish culpability for offense.
(3) Not a defense that woman acted on command of her husband, unless she acted under such coercion as would establish defense under this §.
(4) When actor’s conduct would otherwise be justifiable under 3.02, this § does not preclude such defense.
Duress applies where someone orders another person to commit a crime.  However, this argument might apply to escape from intolerable prison cases above because in some jurisdictions, necessity can only apply to emergencies created by non-human forces.  Acquittals in the prison escape cases based on necessity and duress send two different messages – a necessity acquittal says that the escape was right or tolerable, whereas a duress acquittal says only that the escapee should not be blamed.
MPC Duress defense is broader than the CL in 2 Key Ways: (1) it abandons the common law requirement that D’s unlawful act be a response to an imminent deadly threat – can be the result of a prior use of non-deadly force and (2) the defense is generally applicable, even to murder prosecutions. 
MPC, like the common law, only recognizes duress when unlawful force is applied and only when bodily integrity is threatened.
VIII. The Insanity Defense:  The insanity defense differs from necessity, duress, and self-defense (justification) in that almost all defendants who are acquitted on the basis of the insanity defense are immediately diverted into civil commitment.  The most widely used test is the M’Naughten rule, which asks whether the defendant was so mentally ill that he could not know either the nature or the quality of his act or its wrongfulness. By the 1960s many jurisdictions replaced the M’Naughten rule with the ALI test which broadened the knowledge question to whether the defendant had substantial capacity to appreciate the criminality of the conduct and whether the defendant had the capacity to conform his conduct to the law. 
Insanity Tests:
M’Naghten Rule
See, Serravo Case
Right v. Wrong test= knowing right from wrong; did Def know his conduct was morally wrong;
Moral Wrong—what/who defines the “wrong”
criminal offense; or
he didn’t think it was morally wrong (subjective std); or
he didn’t think others thought it was morally wrong (objective)
Serravo Ct—wrong defined by objective test that asks what society believes is morally wrong (societal std)
Durham Test
= an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect [was the act a product of the mental defect?]
Contrary to expectations, this looser std wasn’t more beneficial to Def’s
Criticisms-
= non rule, leaves jury w/no std to judge by
Irresistible Impulse Test
Focuses on one’s ability to control their behavior
ALI-MPC= two prong test w/a cognitive and behavioral components= one isn’t responsible for their crime if they lack substantial capacity to appreciate criminality of his conduct OR to conform his conduct to the requirements of law
M’Naughten Rule:  Accused laboring under such a defect of reason, arising from a disease of the mind, that she: (1) did not know the nature and quality of the act that she was doing; or (2) if she did know it, she did not know that what she was doing was wrong.
The word “know” can be interpreted narrowly (literal knowledge) or broadly (deeper knowledge).
The phrase “nature and quality of the act” is a very narrow concept.  This prong is frequently omitted from jury instructions.
Not clear what the word “wrong” means – could mean legally wrong or, it could mean morally wrong. 
Some states that apply the moral-right-and-wrong standard apply the deific decree doctrine, either as an exception to the general rule or evidence as to D’s knowledge of the wrongfulness of her conduct.
M’Naughten rule criticized as being restrictive. 
Irresistible Impulse Rule:  To broaden M’Naughten, some states added a third prong – whether D at the time of the offense (1) acted from an irresistible and uncontrollable impulse; (2) she lost the power to choose between right and wrong, destroying her free agency; (3) D’s will has involuntarily been so destroyed, that her actions are beyond her control.
Hard to determine when people really have lost their volitional capacity.
MPC § 4.01 = Mental Disease or Defect Excluding Responsibility:
(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 the law.
(2) As used in this Article, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.
ALI test uses the term “appreciate” rather than “know” in order to avoid the narrow interpretation in M’Naughten’s cognitive prong.
Avoids the word impulse.
Uses the phrase “lacks substantial capacity” to avoid the total incapacity requirement.
Critics in favor of a broader test say that the ALI ties the hands of psychiatrists.  Those who favor a narrower test are critical of the volitional prong.  This test was widely adopted, and then rejected after Hinckley attempted to kill Reagan.
Durham Rule Basic premise is that the mind of man was a functional unit and that if the defendant had a mental disease, his mind could not be expected to respond properly to threats of sanction, he was not a “fit” object of anger and blame and that he belonged in a hospital rather than a prison.  Looks for the causal link between the act and the mental illness.
A. Defining the Meaning of M’Naughten
People v. Serravo (CO 1992):  After reading the bible, Serravo stabbed his wife while she was sleeping. He called the police and told them that he heard an intruder. A few weeks after the stabbing, Serravo’s wife found letters admitting to the stabbing. Serravo told his wife that God told him to stab her. God wanted him to build a sports complex, but his wife wouldn’t encourage him, so he believed that he was morally justified in stabbing his wife. Serravo thought he was in direct communication with God. Trial court instructed jury that “incapable of distinguishing right from wrong” means that he appreciates that the conduct is criminal but thinks it is morally right.  Held – The court held that whether the accused knew an act was morally wrong is the test for NGI. Furthermore, morals should be defined by societal standards rather than personal, subjective standards in order to avert a focus strictly on family, community, formal education, and religious associations. The court also held that the deific-decree is not an exception to the right-wrong test, but rather as an integral factor for assessing a person’s cognitive ability to distinguish right from wrong with respect to the act charged as a crime.
Andrea Yates:  Drowned her five children in the bathtub. She had previously been hospitalized 4 times for psychiatric care and twice tried suicide. Haldol had controlled first bout of post-partum depression, but she stopped taking it and became pregnant against doctor’s orders. New psychiatrist, Dr. Saeed, prescribed Haldol again, but then took her off it. Two days before the killings, Rusty took Andrea to a psychiatrist, who refused to prescribe Haldol or hospitalize. Andrea told the expert she’d had urges to kill the children in past, but stopped herself and that she believed beforehand that the killing wasn’t wrong. “If I didn’t do it, they would be tormented by Satan.” But she knew they would be perceived badly. Convicted of capitol murder, sentenced to life in prison. TX law on insanity: Did she understand what she was doing was wrong? She had to kill the children to send them to heaven, so she would be punished for her sins with the death penalty.
The deific decree situation is a problematic category because when you are being commanded by god you are not thinking moral knowledge. Do you think that she fits in the deific decree category? God v. Satan probably wouldn’t matter. Harcourt says that this isn’t so much a case of Satan telling her at that moment that she has to kill her children now, but about her children going to hell, sin, motherhood, bad children. Deific decree is more like duress – divine duress. Slightly different than this whole religious belief.
M’Naughten
Irresistible Impulse
ALI(MPC)
Durham
Whether she knew that the social moral code would think that her actions were morally wrong.
She could know that what she was doing was wrong, but couldn’t control her own actions.
Whether she appreciated the criminality of her conduct and whether she could conform her behavior to the law.
Was the crime a product of mental disease or defect?
Not Insane – we knew that Yates knew that killing her children was legally wrong. She might have also thought that what she was doing was morally wrong because she knew she would be punished.
Not Insane – She was methodical and did not act like Goldstein, the Subway killer.
Maybe Insane
Probably Insane
Smith v. State (AK 1980):  Allen Smith was an army private who commandeered a vehicle at gunpoint after being discharged from the service as undesirable. He left the base and after a police chase shot Leon Jordan twice in the chest and shoulder. Smith had a history of schizophrenia, was hospitalized twice and on a prior occasion had acted violently. Three psychiatrists saw Smith, all agreeing that he was schizophrenic. Langdon and Robinson thought Smith was incapable of conforming his actions to society’s norms while Rader concluded that Smith could. Rader argued that the incidents of 9-28 were not related to schizophrenia, but were due to Ganzer syndrome (prison psychosis) whereby he acts insane for the advantages of being thought insane. Rader instead thought that Smith was acting to get discharged as undesirable and these actions were meant to forward those goals. Lay testimony supported Rader’s conclusions.  Held - Beyond a reasonable doubt standard applies to the opposing evidence.  Rader’s evidence was proven beyond a reasonable doubt. 
GBMI – Guilty But Mentally Insane. The way that this works in Alaska is that you get NGI for a McNaughten defense but a GBMI for Irresistible Impulse or ALI. If you get a GBMI, you serve your sentence in a mental hospital.
Andrew Goldstein (NY):  Goldstein, 30-year-old with long history of commitments, pushed a young woman to her death on N.Y.C. subway tracks. In a videotaped confession, blamed his action on psychotic attack. In two years, hospitalized 13 times after unprovoked attacks on 13 individuals. Several times sought and denied long-term care because of state budget cuts. Tells the police he would never intentionally do such a thing. Insane under the MPC b/c lacks capacity to conform his conduct to requirements of the law.
ALI test could reasonably be applied as could the irresistible impulse test. 
IX.  Attempt Liability:  When a person intentionally commits a crime, it is the result of a six stage process:  (1) the actor gets the idea to commit a crime; (2) she evaluates the idea; (3) she fully forms the intention to go forward (at this point she has mens rea); (4) she prepares to commit the crime; (5) she commences commission of the crime (At this point, you can have attempt liability); and (6) she completes her actions.  Activity in the middle ranges is inchoate.  There are two types of criminal attempts:  complete (but “imperfect”) and incomplete.  A complete but imperfect attempt occurs when the actor does not get to stage 6.  An incomplete attempt is when the actor does some of the acts necessary to achieve the criminal goal but quits or is prevented from continuing.
    A.  MPC § 5.01 Attempt
(1) Definition of Attempt: Person is guilty of attempt to commit a crime if, acting with kind of culpability otherwise required for commission of crime, he:  (a) purposely engages in conduct that would constitute crime if attendant circumstances were as he believes them to be; or  (b) when causing particular result is element of crime, does or omits to do anything with purpose of causing or with belief that it will cause such result without further conduct on his part; or  (c)  purposely does or omits to do anything which, under circumstances as he believes them to be, is an act or omission constituting a substantial step in course of conduct planned to culminate in commission of crime. {deals with incomplete attempt crimes}
(2) Conduct which may be held substantial step: Conduct which is corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law:  (a) lying in wait, searching for or following contemplated V;  (b) enticing or seeking to entice contemplated V to go to contemplated place for crime commission;  (c) reconnoitering place contemplated for crime commission; (d) unlawful entry of structure, vehicle or enclosure in which it is contemplated that crime will be committed;  (e) possession of materials to be employed in crime commission, specially designed for such unlawful use or which can serve no lawful purpose of actor under circumstances;  (f) possession, collection or fabrication of materials to be employed in crime commission, at or near place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of actor under circumstances;  (g) soliciting an innocent agent to engage in conduct constituting an element of the crime.
(3) Conduct designed to aid another in commission of crime: Person who engages in conduct designed to aid another to commit crime that would establish complicity if crime were committed by such other person, is guilty of attempt to commit crime.
(4) Renunciation of criminal purpose: It is an affirmative defense that actor abandoned his effort to commit crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.
MPC § 5.05 Attempt is a crime of the same grade and degree of the most serious offense that is attempted.
When it is a capital crime or a first degree offense, the offense for attempt is downgraded one less degree because the threatened punishment of the inchoate crime is enough to deter.
In most states, attempt is a felony but is treated as a lesser offense than the substantive crime.
B.  Why Punish Attempt?  Punishing inchoate crimes raises special enforcement issues that don’t arise with successfully completed offenses.  The earlier the police intervene, the greater the risk that suspicious looking but innocent conduct is punished or that the person with a less than fully formed criminal intent will be arrested without the opportunity to change her mind.  On the other hand, waiting too long will make it more likely that an actor will successfully complete an offense. 
Utilitarian Approach: Punish attemptor because the attemptor’s action, though harmless, proves that he is dangerous. Failed attempts are displays of inept malevolence. Punishing attemptors maximizes deterrence.
Opponents of attempt might argue that vagueness of conduct giving rise to liability will frustrate proponents aim of enhancing the certainty of punishment.
Retributivist Approach: Punish attemptor because act manifests bad character. Might concede that the offender should not be punished until conscience has been given reasonable opportunity to check such desires. Why should the miscarriage of his plan absolve him?
Opponents of attempt: We rarely punish harmless or reckless risk-taking. We usually expect legislatures to narrowly define the risky conduct that will give rise to liability rather than just proscribing any conduct that poses an unacceptable risk to a particular interest.
C.  Mens Rea of Attempt:  Criminal attempt involves two “intents”:  First, the actor must commit the acts that constitute the actus reus of attempt (perform the substantial steps) and second, the actor must perform those acts with the specific intention of committing the target offense.  Thus, attempt is an specific intent offense, even if the substantive crime is a general intent offense.
Mens Rea at Common Law:
Did she act with the same mens rea required by the crime attempted?
Did she intend to commit the act and to cause the result and intend the same circumstances as required by the crime attempted?
Mens Rea for the MPC:
Did D have the purpose to do all the conduct elements of the target offense?
Did D have the purpose to cause the result (or believe she would cause the result of the target offense?
Did D have the same mens rea towards the circumstance elements as required by the target offense?
D.  Actus Reus of Attempt:  In general, the line between preparation and perpetration is difficult to draw.  Courts focus on three main factors:  (1) whether the act in question appears to be dangerously close to causing tangible harm; (2) the seriousness of the threatened harm; and (3) the strength of the evidence of the actor’s mens rea.
Common Law:
Last Act:  Did the defendant do everything he could do and is the result now beyond his control?
Unequivocality Test: Would reasonable people, observing only D’s conduct, necessarily conclude that he was trying to commit a crime?
Proximity Test: In light of the seriousness of the offense and the scope of possible harm, did D come close in space and time to completing the offense?
Indispensable element test:  in determining proximity, some courts will not find an attempt if the actor has not yet obtained control of an indispensable feature of the criminal plan.
Probable Desistance:  Did D’s conduct start a chain of causation sufficient to result in the commission of the completed offense unless another person or event would prevent it?  Would a law-abiding person likely have changed his mind.
MPC:  Did the defendant’s behavior strongly corroborate his criminal purpose?
State v. Lyerla (SD 1988):  Gerald Lyerla was driving along the highway when Tammy Jensen, a 17 year old girl started to play games with him, not letting him pass. Lyerla got off the road, loaded his pistol, reentered the interstate and, when Jensen wouldn’t let him pass again, he fired three shots at the pickup, killing Jensen, but missing her two teenage passengers.  Jury convicted Lyerla of second degree murder and two accounts of attempted second degree murder.  Held – To attempt a crime requires the specific intent to commit the acts constituting the offense. For 2nd-degree murder, must intend to have reckless state of mind. Jury decided lacked intent because rejected first-degree murder. May not intentionally attempt to cause death through a reckless act.  Cannot intend an unintentional crime.  Dissent –Because Lyerla would have been guilty of second degree murder if the other two teenagers had died – and he was in fact guilty of 2nd degree murder for killing Jensen – there is no logical reason why he should not be guilty of attempted 2nd degree murder for those cases where he is unsuccessful in completing the crime. Lyerla clearly attempted the dangerous and stupid act of shooting a gun near people and the car they were riding. This fits the act requirement as well as the mens rea for 2nd degree murder. Whether he was successful should not matter for the attempt crime.
If no one had been injured, there is no way that the prosecution could have gotten an attempted homicide in this case. This is an easy case if you believe that he was intentionally trying to kill them (if you had gotten the first degree conviction). The problem comes when you view the killing as reckless rather than intentional. You can get around this by arguing that you can intentionally create reckless situations, which you can do in the Russian Roulette case, but is less clear in the Lyerla case.
Comparison to Russian Roulette – is it something more than extreme recklessness? It’s as if that particular individual, who really has a death wish or gets a thrill out of a reckless situation or intends to create that reckless situation, might have a different mens rea – extremely extreme recklessness. Thus, majority is wrong because not inconceivable that someone could intentionally create a reckless situation. Not unbelievable that Lyerla could have intentionally created an reckless situation. Russian roulette players intentionally attempt a reckless act.
The key here is that Lyerla lacked the specific intent to kill any of the girls even if he was convicted of murder for the one girl that he killed.  Illogical to say that a defendant intended to kill the victim by being reckless.  These problems are unique to result crimes.  For conduct crimes, there is no logical reason why a person shouldn’t be convicted of an attempt provided that she possesses the specific intent to engage in the conduct that, if performed, constitutes the substantive offense.
MPC § 5.01(1)(b) – applies because Lyerla is accused of a result crime –requires an attempt mens rea of purpose or knowledge.  The MPC comes to the same conclusion as the SD court, with more technical language – cannot intend a reckless act.  The solution was that you don’t let the guy off completely, and instead charge him with reckless endangerment – only a misdemeanor offense. 
United States v. Morales – Tovar – The defendant was charged with violating 8 U.S.C. §1326 which makes it a crime for any deported person to enter, or to attempt to reenter the US without permission. Defendant lived in the US for 38 years before he was deported. He tried to return to the US in 1998 and while he presented identification materials, he didn’t specifically say that he was deported until he was asked after a computer check. He was not convicted because he did not actively try to violate the statute by giving false identity and lying. (Need specific intent to violate the statute in order to get convicted for an attempt crime).
People v. Markowski – HIV positive defendant charged with attempted murder, assault, and attempted blood poisoning for trying to sell his blood to a plasma center. Jury acquitted Markowski on these charges because he was only agreeing to sell his blood because he needed money.
People v. Murray (CA 1859): Defendant charged with attempting to contract an incestuous marriage with his niece. The evidence was declaration of his determination to contract the marriage, elopement with the niece for that purpose, his request to witness to go for the magistrate to perform the ceremony.  Held – In order to have an attempt you need acts that would end in the consummation of the particular offense, but for the intervention of circumstances independent of the will of the party.  Draws analogy: Intent = purchasing and loading gun with declared intention to kill neighbor. Attempt: Movement made to use the weapon against the intended victim.
Practically a “last act” requirement:  Court says that he needed to have everything in place and be at the last step. For the airplane-bomb example, it would be like checking the luggage and then walking away. Actus reus would be satisfied under Murray but not before that.
Critique:  There is almost no point at that point waiting for the person to say “I do.” Might as well let them say “I do” and slap them with a conviction for an incestuous marriage. There isn’t much room for a distinction between attempt and the actual offense.
What evidence do you use to show that the person is on the trajectory to committing a very serious offense? MPC talks about a substantial step, which only applies to section § 5.01(1)(c) because § 5.01(1)(a) and § 5.01(1)(b) apply only to completed offenses.
State v. Smith (NJ 1993): Defendant was a county jail inmate with HIV. On various occasions he threatened to bite and spit on the prison guards with the purpose of infecting them with HIV. He bit the hand of a corrections officer, drawing blood after creating a ruckus in a hospital. Prior to the bite, he threatened the officers for 20 minutes during a struggle that he’d bite him and give him HIV. Very weak medical evidence that bites actually lead to HIV transmission.  Held – If a defendant believes that the last proximate act he committed would result in death, regardless of medical evidence, he is liable of attempted murder. 
What bothers Harcourt about the Smith case is that it isn’t clear that he really believed that he was going to transmit the disease. Harcourt’s concern has to do with the jury’s factual finding and not with the law.
Impossibility:  At common law, factual impossibility is not a defense.  Had the circumstances been as the actor hoped they would be, the crimes would have been consummated.  For “inherent” factual impossibility (the voodoo doctor example), scholarly commentary is split between objectivists who argue that no tangible harm could have occurred and subjectivists who think the actor is no less blameworthy because she chose an inherently impossible way to commit the offense.
X.  Complicity:    Accomplices are those who are held liable for aiding or encouraging the offense of another. Complicity is not a distinct crime but depends on the occurrence of some other offense whether or not another person is punished for that offense.  Attempt is a distinct inchoate offense and a defendant can be punished for attempting to commit a substantive offense without actually committing the crime. The accessory statute provides an alternate means by which a substantive crime can be committed.  There are two main ways of helping someone else commit a crime; (1) physical aid and (2) psychological aid.  Once might also assist through omission.  A person is an accomplished when they provide some aid to the principal, no matter how trivial.  A person is also accountable for a principal’s conduct, even when his assistance is unnecessary to the commission of the offense.  The Accomplice is liable of the same crime as the Principal, which theoretically may result in disproportionate punishment that is inconsistent with a retributivist theory of just deserts.
A.  The elements of Complicity:   The agent must have two states of mind (1) the intent to assist the primary party to engage in the conduct that forms the basis of the offense, and (2) the mental state required for the commission of the offense, as provided in the definition of the substantive crime. 
Common Law: 
Mens Rea:  usually described in terms of intention.  There must be a “community of purpose in the unlawful undertaking” between the principal and the agent.  Where the mens rea of the offense is recklessness or negligence, the agent must (1) have the intent of assisting the principal in engaging in the conduct that forms the basis of the offense and (2) have the mental state required for the commission of the substantive 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.  Look to: (1) Did P commit target crime X?  (2) If yes, did A intentionally assist in the commission of crime X? (3) If yes, did P commit any other crimes? (4) If yes, were these crimes, although not contemplated or desired by A, reasonably foreseeable consequences of Crime X? 
The rule means that an accomplice can be convicted of an intent crime, even though his culpability may be no greater than negligence.  Mens rea requirement is less than the mens rea required to prove the guilty of the Principal!
MPC Complicity § 2.06
(1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable or both.
(2) A person is legally accountable for the conduct of another person when:  (a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; or (b) he is made accountable for the conduct of such other person by the code or by the law defining the offense or (c) he is an accomplice of such other person in the commission of the offense.
(3) A person is an accomplice of another if:  (a) with purpose of promoting or facilitating commission of offense, he (i) solicits such other person to commit it; or (ii) aids or agrees to aid such other person in planning or committing it; or (iii) having a legal duty to prevent commission of offense, fails to make proper effect so to do; or  (b) his conduct is expressly declared by law to establish his complicity.
(4) When causing particular result is offense’s element, an accomplice in conduct causing such result is an accomplice in commission of that offense, if he acts with kind of culpability with respect to that result that is sufficient for commission of offense.
(5) Person legally incapable of committing a particular offense himself may be guilty thereof if it is committed by the conduct of another person for which he is legally accountable, unless such liability is inconsistent with purpose of the provision establishing his incapacity.
(6) Unless otherwise provided by Code or law defining offense, a person is not an accomplice in offense committed by another if: (a) he is a V of that offense; or (b) offense is so defined that his conduct is inevitably incident to its commission; or  (c) he terminates his complicity prior to commission of offense and  (i) wholly deprives it of effectiveness in commission of offense; or (ii) gives timely warning to law enforcement authorities or otherwise makes proper effort to prevent commission of offense.
(7) An accomplice may be convicted on proof of commission of offense and of his complicity therein, though person claimed to have committed offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.
The MPC, unlike the common law, establishes a unilateral approach to conspiracy liability.  The MPC focuses inquiry on the culpability of the actor whose liability is at issue rather than on the culpability of the group. 
MPC rejects that natural and probable consequences rule of the common law.  Thus, liability of the accomplice does not extend beyond the purposes he shares. 
A person can be an accomplice under § 2.06(4) of reckless or negligent conduct 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. 
Three types of mens reas (from diagram):
1) Defendant intends to commit the crime himself (same mens rea of the offense)
2) Intending to facilitate or encourage the principal’s commission of the crime.
2) Knowledge about the principal’s mens rea.
People v. Beeman (CA 1984): James Gray and Mark Burk robbed Beeman’s sister in law of valuable jewelry. 6 days after the robbery, Beeman was found with several of the less valuable stolen rings. He supplied police with the information leading to the arrest of Gray and Burk. They testified that Beeman had supplied them about the contents and layout of the house, made suggestions about attire, and agreed to sell the goods for 20% of the proceeds. However, Gray also testified that two days before the robbery, Beeman said that he had changed his mind.  Held – The court held that a person aids or abets the commission of a crime when s/he acts with: (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages, or instigates the commission of the crime. The court reversed Beeman’s conviction because he openly changed is mind before the crime.
Beeman standard:  knowledge of P’s criminal purpose AND same mens rea as for the crime AND intent to encourage or facilitate.
MPC §2.06(3)(a)(ii) – aids or agrees or attempts to aid someone in the planning or commission of an offense. In terms of the mens rea, all Beeman has to have is a purpose to facilitate or encourage.
To withdraw under the MPC requires more than just saying no, requires stopping it from happening or notifying the authorities.
Different Mens rea diagram:  Requires knowledge (3) + [intent (2) OR intent (1)
United States v. Giovanetti (7th Cir. 1990) – Janis owned a house that he rented to Orlando who ran a voluminous gambling business. Janis knew enough about Orlando to infer that he wanted the house only for the gambling trade. Trial court gave willful ignorance (ostrich) instruction that keeping eyes close for desire not to know is no excuse. Held – The ostrich instruction is not intended to direct evidence of guilty knowledge beyond a reasonable doubt. Rather, it is for cases where there is evidence that the defendant, knowing or suspecting that he is involved in shady dealings, takes steps to make sure that he doesn’t acquire full or exact knowledge of the nature and extent of those dealings.
Natural-and-Probable-Consequences Doctrine:  A purposive accomplice (A) to one crime can become liable for a second crime committed by a principal or co-accomplice (B) where A had merely been negligent with respect to the possibility of that second crime. 
People v. Kessler (Supreme Court of Illinois, 1974) – Defendant waited in an automobile outside a tavern while two unarmed companions entered the building to commit a burglary. While inside they took a gun from the owner and shot him. While fleeing, one of the defendants shot a police officer. Held – When someone aids another in the planning and commission of an offense, he is legally accountable for the conduct of the person he aids. That conduct encompasses any criminal act done in furtherance of the planned and intended act.
State v. Carson (Tenn. 1997) – Carson, Gary, and Stover decided to rob a TV repair store. Carson described the layout and gave handguns to Gray and Stover. Carson waited outside and G and S held two employees at gunpoint and fired three shots as they left. Held – If two people join in a purpose to commit a crime, each of them, whether or not he is actually present, is guilty as a principal. If the other commits any other crime in pursuing the common purpose or that is a natural or probable consequence, both are guilty.
Wilson v. People (Co 1939):  Wilson met Pierce at a café and they drank some liquor together. Wilson realized that his watch was missing and he accused Pierce of stealing it. An argument ensued. They got thrown out of a café. During their discussion, Pierce had told Wilson all about burglaries and he compiled a list of tools he would need at some future time. Pierce decided to break into a drugstore. Wilson hoisted Pierce into the drugstore and while Pierce was inside, Wilson called the cops and told them that Pierce was inside. Wilson claimed that he purposely set pierce up so that his watch would be apprehended.  Held – It is essential for an accomplice to share the criminal intent of the principal in the first degree and the same criminal intent must exist in the minds of both.  Wilson not be liable because he did not share the same criminal intent as Pierce.  [would be guilty under MPC]
Mens Rea Diagram:  Requires same (1)
MPC § 2.06(3)(a) only requires purpose to facilitate commission of the crime. Under that standard, seems to be guilty. § 2.06(6)(c)(ii) Calling the police is not enough b/c he does not terminate his complicity before the commission of the offense.
Stings and Complicity: State v. Hohensee (Mo. App. 1982) – State police hired two known burglars and an undercover police officer to burglarize a building in order to convict a fourth burglar on a theory of accomplice liability. The cops and the hired burglars broke into the building while the fourth burglar sat in the car. Held – Where the government sets up a sting, the person must be a principal actor – the government’s participation was very great and the fourth burglar’s participation very small.
Recklessness or Negligence:  State v. Etzweiler (NH 1984):  Etzwieler loaned his car to an intoxicated Bailey. E knew that B was drunk. B got into an accident 10 minutes later, killing two people. E charged with negligent homicide and negligent homicide as an accomplice. Complicity requires the commission of an offense with the purpose of promoting or facilitating the commission of the offense.  Held – because the accomplice must aid the primary actor with the purpose of facilitating the substantive offense, the indictments must be quashed because you can’t purposely help someone commit negligent homicide. Under negligent homicide, B must be unaware of the risk of death his conduct created and because of this, E couldn’t have aided B in a crime that he was unaware that he was committing.
Mens Rea Diagram:  intent (2)
The majority rule allows accomplice liability for cases of recklessness or negligence, requiring 2 mental states: (1) A’s intent to assist P in engaging in the conduct that forms the basis of the offense and (2) the mental state required for commission of the substantive offense.
Specific Intent: Where the substantive offense requires purpose or specific intent, the additional requirement that the accomplice have the mens rea that is required for the substantive offense can make it harder to convict an accomplice for crimes she foreseeably facilitated but did not intend. 
United States v. Short (9th Cir. 1974) – Seymour robbed a bank with a gun. Short drove Seymour to the bank and parked his car a block away. While waiting, he met Qualls and offered her a ride. Afterwards, Short complained to Qualls that he did not get his fair share of the money. No evidence that he knew about the gun. Held – In order to be convicted of a greater offense (armed robbery rather than just robbery) the accomplice must be shown to have aided and abetted in that act. Thus, Short must have known that Seymour was armed and intended to use the weapon and that they intended to aid him in that way.
B.  Conspiracy:  Conspiracy requires an agreement between two or more persons to participate in the commission of a crime.  Actual assistance in the crime is not required.  Accomplice liability requires proof that an actor at least indirectly participated (assisted) in the crime.  An agreement to do so is not needed.  (1)  Conspiracy is an inchoate crime – punishes anticipatory action that aims at but that does not necessarily ever reach a criminal object.  (2)  Conspiracy is a doctrine of accessorial liability that implicates all the co-conspirators in each other’s acts.  The focus in conspiracy is basically mens rea – it consists primarily of meeting of the minds and intent.  Because of conspiracy law’s emphasis on mens rea and its consequent de-emphasis of conduct, there is a greater than normal risk that persons will be punished for what they say instead of for what they do or simply will be punished by association. 
Common Law:  The object of a conspiracy is to do an unlawful or a lawful act by criminal or otherwise unlawful means.  However, following the MPC, many states have limited conspiracy to only criminal acts.  Common law conspiracy is complete upon formation of the lawful agreement.  Those jurisdications that do require an act will need only a trivial act for a conspiracy charge.  Common law conspiracy is a specific intent offense – it requires two or more people to (1) intend to agree and (2) intend that the object of their agreement be achieved.  However, an express agreement is not required.
Wheel and Spokes Approach: Some conspiracies look like wheels.  The hub is one person or group who conducts the illegal dealings with various other persons or groups (the spokes).  For a wheel conspiracy to be complete there must be a rim – the state must be able to draw a line around the wheel connecting the spokes.
Chain Approach:  Ds are links in a common chain, each essential to the ultimate task.  The longer the chain, the more tenuous the relationship between the distant links.
Wheel and Chain Conspiracies:  Structure of very large conspiracy might have the features of both a wheel and a chain.
Pinkerton Liability:  A party to a conspiracy is responsible for any criminal act committed by an associate if it: (1) falls within the scope of the conspiracy; or (2) is a foreseeable consequence of the unlawful agreement. 
Typical Pinkerton cases fall in one of two categories: (1) those cases in which the substantive crime that is the subject of the Pinkerton charge is also one of the primary goals of the alleged conspiracy. Or (2) cases in which the substantive crime is not a primary goal of the alleged conspiracy, but directly facilitates the achievement of one of the primary goals.
Wharton’s Rule – When a plurality of agents is logically necessary for the commission of an offense, a conspiracy cannot be maintained.  E.g. – there can’t be a conspiracy to commit adultery. 
MPC § 5.03 Conspiracy
(1) Definition of conspiracy: Person is guilty of conspiracy with another person or persons to commit a crime if with purpose of promoting or facilitating its commission he:  (a) agrees with such others that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or (b) agrees to aid such others in planning or commission of such crime or of an attempt or solicitation to commit such crime.
(2) Scope of conspiratorial relationship: If a person who is guilty of conspiracy knows that a person with whom he conspired has conspired with others to commit same crime, he is guilty of conspiring with such persons, whether or not he knew their identity.
(3) Conspiracy with multiple criminal objectives: If person conspires to commit multiple crimes, he is guilty of only one conspiracy so long as such crimes are object of same agreement or continuous conspiratorial relationship.
(5) Overt act: No person may be conflicted of conspiracy, other than a felony of the 1st or 2nd degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
(6) Renunciation of criminal purpose: It is an affirmative defense that actor, after conspiring to commit crime, thwarted success of conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.
(7) Duration of Conspiracy:  (a) conspiracy is continuing course of conduct that terminates when crime or crimes that are its object are committed or agreement that they be committed is abandoned by D and those with whom he conspired; and (b) such abandonment is presumed if neither D nor another with whom he conspired does any overt act in pursuance of conspiracy during the applicable period of limitation; and (c) if individual abandons agreement, conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of existence of conspiracy and of his participation therein.
Unilateral approach – permits conviction of any person who agrees with another person to commit a crime.  MPC assesses each individual’s culpability based on his individual mental state and conduct.  Def. of conspiracy doesn’t require an agreement between at least two parties. 
Rejects Pinkerton Doctrine.  Under the MPC, a person is not liable for the conduct of another solely because he conspired with that person to commit an offense. 
Conspiracies fall into four categories: A person is guilty of conspiracy if she agrees to (1) commit an offense, (2) attempt to commit an offense, (3) solicit another to commit an offense, or (4) aid another person in the planning of commission of an offense.
The MPC requires an overt act for conspiracies to commit misdemeanors or third degree felonies.  However, it does not require an overt act for conspiracies to commit 1st or 2nd degree felonies.  
State v. Verive (AZ 1981):  Woodall filed a false affidavit in court. Galvin filed an affidavit exposing Woodall’s perjury. Woodall and defendant agreed to go to Galvin’s home to dissuade him from becoming a witness to Woodall’s perjury in exchange for a $900 motorcycle. Defendant went to Galvin’s house and beat him until Galvin’s wife and son intervened. Indicted for conspiracy, second degree and attempt to dissuade a witness. Defendant argues that he is being charged twice under the identical elements test.  Held - The court held that both offenses were inchoate and required separate elements. Elements of attempt to dissuade a witness were (1) intent to dissuade the witness and (2) an overt act in furtherance of that intent. Elements of conspiracy to dissuade a witness are: (1) intent to dissuade the witness, (2) an overt act and (3) agreement between two people. Attempt to dissuade is also not a lesser included offense of conspiracy to dissuade because conspiracy to dissuade can be committed without an attempt to dissuade.
The act requirement is greater for attempt than it is for conspiracy. Conspiracy is about an agreement to commit a crime.  For conspiracy, all you need to show that there was some agreement between Verive and Woodall to beat up Galvin and we need to show that he did anything whatsoever (incl. going into Galvin’s house). For attempt, you need substantial steps.
Griffin v. State (AR 1970):  Appellant’s automobile overturned in a ditch. Police (Officers Vines and Ederington) were called to the scene. A crowd of people were gathered. Griffin attacked Vines and the crowd joined in. Charged with conspiracy.  Held – Where the testimony shows a concert of action between the persons alleged to have jointly committed a crime or the person charged and another, it is sufficient to establish the necessary common object and intent.
A conspiracy may be inferred from a development and a choreography of circumstances. 
People v. Lauria (CA 1967):  Lauria ran a telephone answering service. Three prostitutes used the service for their business. A police officer called, hinting that she was a prostitute concerned with secrecy and she was assured that the service was discreet and safe. A few days later, the policewoman told Lauria that she was a model who had been referred to the service by Terry, one of the prostitutes. She complained that because of the operation of the service she lost two valuable tricks. Lauria only referred to his business as taking messages. Upon his arrest, Lauria admitted that he knew some of his customers were prostitutes and that he knew Terry was a prostitute because he had used her services.  Held – Both knowledge and intent must be proven in order to establish conspiracy. Intent can be inferred from (1) the acquisition of a stake in the venture or (2) knowledge when no legitimate use for the good exists.  Because Lauria didn’t have a stake in the prostitution – he didn’t charge prostitutes more than non-prostitutes – and because there were plenty of legitimate uses for the calling service, even at night, intent was not established.
MPC requires purpose and agreement to commit the substantive crime. 
In this conspiracy, Lauria is running a legal business that is used by his alleged coconspirators for illegal purposes. If he knows, agrees and intends that use, then he’s guilty.
Remember that one conspirator does not need to know identity of all others, so long as he knows there are others out there. 5.03(2)
Consider in light of complicity. The substantial step would be setting up message service(?) But what if it was already set up?
Specific Intent and Attendant Circumstances:  Conspiracy does not require a specific intent regarding attendant circumstances.  United States v. Feola – defendants arranged for a heroin sale to undercover agents. They planned to palm of sugar instead of heroin. Before the defendants had a chance to attack an agent from behind, they were arrested and charged with conspiring to assault and with assaulting federal officers. Held – Identity of the victim was a strict liability element, even on a charge of conspiracy to assault a federal officer.
Corrupt Motive Doctrine:  Some jurisdictions require that in addition to the mens rea required for conspiracy, the parties must also have corrupt or wrongful motives for their actions.  This applies mainly to malum prohibitum offenses – unless the parties know the law, there cannot be a conspiracy.  See:  People v. Powell (N.Y. 1975) – Charged with conspiring to purchase supplies without advertising for bids. Argued that they were unaware of the criminal statute requiring them to solicit bids. Held – Implied in the word conspiracy is that the agreement must have been entered into with an evil purpose.
MPC rejects the corrupt motive doctrine and instead equates the mens rea for conspiracy with those of the substantive crimes. 
United States v. Diaz (7th Cir. 1988):  Appellant Diaz was convicted of conspiracy to distribute cocaine, possession and distribution of cocaine, and use of a firearm in relation to the commission of a drug trafficking crime. Perez sold cocaine on two occasions to DEA agent Collins, testifying that he got the cocaine from Diaz. For the crime in question, Diaz and Peirallo sold 1 kg of cocaine, brought from Miami from Collins. Cocaine was sold behind the open hood of a car. Peirallo had a gun, which he told Perez he intended to use if anyone stole the drugs. Government contended that Peirallo’s carrying of a firearm could be imputed to Diaz because of joint membership in the conspiracy.  Held – Applied the Pinkerton rule, holding that a defendant can be liable for the acts of every other conspirator done in furtherance of the conspiracy, Peirallo’s possession of a gun during the sale can be imputed on Diaz. Since it was a drug deal, which is very dangerous, and because there was a large amount of cocaine involved, the gun was reasonably foreseeable.
United States v. Alvarez:  One of the drug dealers shot federal agent Rios when he realized the police were closing in. His co-conspirators were convicted of 2nd degree murder by virtue of the Pinkerton rule. Held – Murder was a reasonably foreseeable consequence of the drug conspiracy because of the sale of a large quantity of cocaine, because it was likely that someone was carrying a weapon, and that deadly force would be used to protect the conspirators’ interests. *Not a typical Pinkerton case – murder of Rios result of unintended turn of events. However, court argues that the death was reasonably foreseeable.
Oklahoma City Bombing:  McVeigh is convicted of capital murder, sentenced to death. Nichols is indicted for conspiracy to use a weapon of mass destruction, use of weapon of mass destruction, destruction by explosive, 8 first-degree murder of federal law enforcement officer. Jury convicted of conspiracy and of 8 counts of involuntary manslaughter. Life on conspiracy. Use of federal sentencing guidelines for 168 deaths from conspiracy using base offense level associated with murder (thought jury rejected murder for the 8 feds), using felony murder. Fortier: pleads guilty to conspiracy to transport stolen firearms, transporting stolen guns, making materially false statement to FBI, misprision, 144 months. Fortier knew of conspiracy, declined invitation to join, expressed concern about innocent people killed. McVeigh took Fortier by the OK City Federal Building, explained details of plan. Fortier sold guns at gun show, gave $2,000 to McVeigh. Refused to mix bomb components or assist in escape plan. Cooperated with government in cases against McVeigh and Nichols. Court used 1st-degree murder as basis for sentencing guideline. Appellate court overturned b/c no intent. Fortier had mens rea of recklessness. Got same sentence.
C.  RICO Conspiracy:  The RICO statute was adopted to combat organized crime, particularly the mafia. But federal prosecutors have applied RICO far beyond the mafia context. RICO prohibits three types of substantive criminal activities (§1962 (a-c)) as well as the inchoate crime of conspiring to violate one of the substantive provisions (§1962(d)). Each of the three provisions requires proof of a pattern of racketeering activity and involvement in an enterprise that is engaged in or affects interstate commerce.
The RICO Statute:  18 U.S.C. § 1962
§ 1962(a) – forbids laundering of racketeering profits in interstate commercial business where the business itself has a legitimate purpose that is wholly independent of the racketeering activity.
§ 1962(b) – Prohibits racketeering directly aimed at acquiring an otherwise legitimate business enterprise, as opposed to the passive laundering investment. Bars infiltration of legitimate enterprises through bribery, extortion, or other predicate acts.
§ 1962(c) – Applies where a person first becomes associated with an enterprise and then begins to conduct the affairs of that enterprise through actions that constitute predicate acts of racketeering.
§ 1962(d) – RICO conspiracy – conspiracy to violate RICO.
The Pattern Requirement: RICO statute requires at lest 2 acts of racketeering, the last of which occurred within 10 years after the commission of a prior act of racketeering activity. However, while two acts are necessary, they might not be sufficient to establish the requisite pattern. RICO requires more than one racketeering activity and the threat of continuing activity.
United States v. Indelicato – Indelicato and two other men gunned down Galante and two associates in order to gain leadership of the Bonanno family. The three murders were the only RICO predicate acts the government alleged. Held – a RICO pattern can be shown if the racketeering acts are interrelated and if there is a continuity or a threat of continuity. Even though the acts are virtually simultaneous, the purpose of the act was to gain leadership of the Bonanno crime family. Thus, the murders constituted more than one criminal act.
Rico Conspiracy:  U.S. v. Neapolitan (7th Cir. 1986): Police officers engaged in a chop shop operation and solicited bribes in exchange for police protection. The predicate acts for RICO were four alleged acts of mail fraud and eleven specified acts of bribery. The mail fraud counts were dismissed and the involvement in the conspiracy is limited to the solicitation of one cash bribe. Defendants didn’t personally agree to violate RICO.  Held – Sufficient for defendant to join a conspiracy, the goal of which was the conduct of or participation in the affairs of an enterprise through a pattern of racketeering activity to bring a conspiracy to violate RICO charge.  For § 1962(d) agreement with knowledge that the goal of the conspiracy is the commission of a RICO violation – to conduct or participate in the affairs of an enterprise through a pattern of racketeering activity.
XI.  Corporate Criminal Liability:  Criminal liability of the enterprise is in effect a form of accomplice liability.  There is a complex relationship of the individual and the corporation in the criminal law.  Doctrine of respondeat superior – vicarious liability of a party for unlawful actions taken by the party’s employee or agent is the foundation for criminal liability of the corporation for the acts of its owners, managers and employees. 
    A.  MPC § 2.07  Liability of Corporations
(1) Corp may be convicted of commission of offense if  (a) offense is violation or is defined by a statute other than the Code in which a legislative purpose to impose liability on corps plainly appears and conduct is performed by corp.’s agent acting in behalf of corp. within scope of employment, except that if law defining offense designates agents for whose conduct corp. is accountable or circumstances under which it is accountable, such provisions shall apply; or   (b) offense consists of an omission to discharge a specific duty of affirmative performance imposed on corps by law; or  (c) commission of offense was authorized, requested, commanded, performed or recklessly tolerated by board of directors or by high managerial agent acting in behalf of corp. within scope of his office or employment.
(4)(c) “High managerial agent” means an officer of a corp. or an unincorporated association, or, in case of a partnership, a partner, or any other agent of a corp. or association having duties of such responsibility that his conduct may fairly be assumed to represent corp.’s policy.
(5) It is a defense if D proves by preponderance of evidence that high managerial agent having supervisory responsibility over subject matter of offense employed due diligence to prevent its commission. This paragraph does not apply if it is plainly inconsistent with legislative purpose in defining the particular offense.
(6) (a) Person is legally accountable for any conduct he performs or causes to be performed in name of corp. to same extent as if it were performed in his own behalf.  (b) Whenever duty to act is imposed by law upon corp., any agent of corp. having primary responsibility for discharge of duty is legally accountable for reckless omission to perform required act to same extent as if duty were imposed by law directly upon himself.
   
B.  State v. Christy Pontiac-GMC, Inc. (MN 1984):  MN car dealership owned by James Christy, a sole stockholder.  Employees twice forged customers’ signatures to pocket the customer’s share of the rebate for the dealership.  One of the salesmen who did the forgeries was separately convicted of theft.  Held – If a corporation is to be criminally liable, the crime must not be a personal aberration of an employee acting on his own – the criminal activity must reflect corporate policy so that it is fair to say that the activity was the activity of the corporation.  Corporation can be convicted of a specific intent crime.  Elements: (1) acts of individual agent constitute acts of corporation, b/c agent was acting within scope of his employment, with authority to act for corporation, (2) acting at least in part in furtherance of corporation’s business interests, (3) acts were authorized, tolerated or ratified by corporate management.
Reason for holding a corporation liable under strict liability:  It will give corporations an incentive to be more vigilant, overall reducing the number of bad acts by employees
A.  United States v. Hilton Hotels Corp. (9th Cir. 1972):  Hotel, restaurant and restaurant supply companies in Portland organized an association to attract conventions  Companies selling supplies to hotels were asked to contribute 1% of sales to members.  Members agreed to give preferential treatment to suppliers who paid their assessments and to boycott those who did not.   Manager told the purchasing agent not to participate in the boycott and the purchasing agent admitted that despite the instructions, he threatened a supplier with the loss of the hotel’s business unless he paid the assessment.  The purchaser said that he violated the instructions because of anger and personal animosity towards the supplier’s agent.  Held – A corporation is liable under the Sherman Act for the acts of its agents in the scope of their employment, even though it was contrary to general corporate policy and express instructions to the agent.  Hilton is liable because the purchasing agent was in a unique position to force the boycott and the appellants couldn’t avoid liability through issuing general instructions without enforcing those instructions by means that are commensurate with the obvious risks.
Concern about explicit instruction to prevent liability, with a wink and nod to encourage employees to violate the law.
Upper management has to take an active role and check up on what its employees are doing – must exert some oversight.  “Appellant could not gain exculpation by issuing general instructions without undertaking to enforce those instructions by means commensurate with obvious risks. . . .” (983).
MPC § 2.07 (1)(a) But also have to consider the due diligence defense in § 2.07(5). 
United States v. Beusch – (9th Cir. 1981) – Softened Hilton holding.  VP Beusch failed to make federally required reports of large transactions.  Court held that a corporation may be liable for the acts of its employees in contradiction to express instructions and policies but those instructions can be considered when determining whether the employee acted to benefit the corporation. 
MPC §  2.07(1)(a) applies.  Also,  § 2.07(6)(a) – to go after the VP
C.  Dalkon Shield: Robins, manufacturer of flea and tick collars, Robitussin, and chap stick, acquired rights to the Dalkon Shield, an IUD, from inventor Lerner and his company Dalkon Corp.  Assigned assembly to its Chap Stick corp.  Robins ignored an internal company memo that cited evidence from Lerner himself that the pregnancy rights were higher than reported and more research was needed.  When the device failed, it caused severe infections leading to miscarriages.  At least 20 women died from complications.  Internal memos reported the likelihood that the Shield would cause pelvic inflammatory disease.  Neither memo was given to the FDA when it investigated Shield problems in 1974.  Outcome: Plaintiffs in Shield case were allocated $2.47 billion.. In late 1980s, federal prosecutors sought criminal charges for perjury, obstruction of justice and fraud, but not homicide.  The charges were dropped in 1990.
MPC § 2.07(1)(c)
RICO § 1962(c) – obstruction of justice (not giving the memo)
D.  The Pinto:  Ford sold 1.5 million pintos between 1971-1976 knowing that the gas tank posed a dangerous risk of fuel leakage and explosion.  Ford made no attempt to fix or redesign the tank or warn the customers until the Feds forced them to do so.  Charged with reckless homicide in the deaths of three girls in a fiery accident.  Government investigated and closed the investigation without finding. 
E.  Arthur Anderson:  Charged with obstruction of justice for shredding documents.  Enron’s 3rd quarter earnings were coming out and Enron was going to say that the law was non-recurring.  Stockholder report described the losses as a one shot deal, meaning that Enron is going to lose this money today, but this is not the end of the business.  Duncan prepared the memo – had discussion with chief at Enron.  Duncan and the auditors thought it was inappropriate to call this non-recurring.  Temple sends this email instructing them to take her name from the memo so that she is not a witness.  She says delete some of the language that will be misleading.  And she says that the non-recurring losses characterization was not in accordance with GAAC.  She wanted it to appear to the SEC that they hadn’t already come to the conclusion that “non-recurring” would be misleading to the investment community. 
Oct 8 – Temple held internal conversations about document compliance.
Oct 9 – Anderson hired Mayer Brown and Davis Polk to start looking at Enron account.  They know there is going to be a debacle.
Oct 12 – Temple sends e-mail saying that it would be really helpful if employees follow the document retention policy.
Oct 17 – SEC sends letter to Enron.
Oct 19 – Enron tells Anderson about the letter.
Oct 21 – start shredding.
Nov 8 – Anderson gets a subpoena.