Pfaff Criminallaw Spring 2018 Outline
Pfaff Criminallaw Spring 2018 Outline
Pfaff Criminallaw Spring 2018 Outline
Pfaff
Spring 2018
I. Introduction
A. Overview of the Sources of Criminal Law
1. Statutory Law: Based on legality principle, legislatures make law while courts
interpret it and must adhere to fill the gaps.
o Legislature vs. Courts
Legislature design statutes while courts construe them.
The legislature as the most democratically elected institution should
prevail, as criminal reflects moral sentiments of the community; while
courts are appointed, should be subordinate to the representative body.
Codified law as rejection of elitist judiciary, put into most
representational branch of gov.
The role of courts is limited so to reject elitist judiciary and ensure
constitutionality
o Institutional Actors of Criminal Law:
Legislative System: enact
Judiciary System: interpret
Jury: enforce or nullify
Prosecutors vs. Lawyers: enforce vs. defense
Police: arrest
2. Common Law: Common Law still provides offense names, reception statutes and
rationales behind rules.
o Why common law still relevant even though criminal law is predominantly
statutory
Statutes often written with common-law precepts in mind
Common-law precepts often guide judges in interpreting ambiguous
parts of statutes
The US SC often constitutionalizes common law precepts
o Criminal vs. Civil Law
Criminal law: deals with crimes, i.e. punishable acts, so compensation to
the plaintiff is the major concern
Civil law: deals with torts, i.e. compensable acts, so punishment of the
defendant is the sole concern
Even today many acts constitute crimes and also torts at the same time
3. Constitutional Law: Constitutional guarantees in the Bill of Rights directly limit
legislative policy. Under the First Amendment, congress and state legislatures may
not pass any law that restricts freedom of speech, religion or the press. Additionally,
a "right of privacy" is recognized that legislatures may not infringe.
4. Model Penal Code: The non-governmental American Law Institute drafted the Model
Penal Code to provide clarity and uniformity to criminal law.
o Format of Modern Codes: Modern criminal codes are comprised of two
sections:
A general part containing general provisions
A special part containing the definitions of specific offenses
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I. Introduction - Structure of Criminal Law & Criminal vs. Civil Law
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I. Introduction - Example of Bubble Gum
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I. Introduction - Example of Bubble Gum
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II. Statutory Construction
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II. Statutory Construction
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II. Statutory Construction
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III. Theories of Punishment
B. Incapacitation: locking people up so they can’t commit crimes again, types: incarceration,
license revocation, chemical castration, alcohol locks on cars. Concerns:
1. How long to incarcerate?
a. Discounting and duration: we want the impact of sentences to be strong
b. Age and desistance: MOST people age in and out of crime, most juvenile
offenders are not adult offenders
c. Social development and desistance - getting married and working stop people
from committing crimes - keeping people in jail hinders this
2. Is this effective?
a. Elastic responses: people start to label themselves as “I’m just a criminal” -to
what extent are people arrested replaced by new criminals?
b. Criminogenic effect - exposure to other criminals
c. Policing is more cost efficient than prisons but more money goes into prisons
3. Selective Incapacitation - the Base rate Problem: what base rate do we
use? - rearrested, reconvicted, or readmitted
a. Problems with baserates - there are false-negatives and false-positives
E.g. In a population of 100,000 people there are 100 criminal
reoffenders. We will predict these reoffenders 100% of the time with 0
false-negatives but if we have a 1% false-positive rate we will
misidentify 999 people as reoffenders - so only 100/999=9% are properly
flagged as reoffenders. The small baserate can dwarf the true
positive - we want baserates to solve violent crimes and for violent
crimes the baserate is usually low which causes problems
a. When the baserate is high this isn’t such a problem
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III. Theories of Punishment
A. Rehabilitation
1. Concerns:
a. Is this punishment?: lots of times with rehabilitation the offenders get
education, etc. - is it fair that the offenders get education/scholarships where a
lot of law abiding people do not?
b. Rehabilitation vs. Human Capital Theory: we want criminal law to do things
that are cost effective - our brains depreciate over time so it may not be cost
effective to teach criminals basic life skills when they are older
c. Limits on time served: do we need guilt? How much time is enough? - there
can be a complete disconnect b/w crime and punishment - you can be locked
up for a long time for a small crime and vice versa
2. One method of rehabilitation is restorative justice, we want to help the offender
restore social standing rather than helping them obtain basic life skills - can be done
by putting the victim and offender together to let the offender understand how and
why he hurt someone
B. Just Deserts (Retribution): punishment has an inherent value in itself; not concerned with
punishing for the greater good (they are punishing just to punish)
1. Backwards looking: asks what a person deserves to get based on what they did
(rather than Consequentialist theories that ask what we should do to stop someone
from committing crimes in the future)
2. Wants to protect the morals of actors: if actor changes their mind last minute before
committing a crime and doesn’t do it then we don’t want to punish them
3. Proposed punishment (lex talionis): an eye for an eye, this usually doesn’t work (i.e.
you can’t mug someone that mugs you)
a. Alternative: Proportionality - how we order offenses for punishment (i.e.
punishment for murder is worse than punishment for arson)
Problem: baselines and fragile intuitions - we have very little idea for
how much punishment crimes should get (should we start from the
smaller crimes and work our way up or start from the worst crimes and
work our way down?)
4. Three Rules
a. Punishing the guilty is just - requires police
b. Not punishing the guilty is unjust - requires police
c. Punishing the innocent is unjust - requires defense attorneys
5. How do we unify deterrence and just deserts?
a. Obedience is tied to respect - the more respect we have for the law, the more
likely we are to follow it
b. Problems with unifying them:
General survey problems: how questions are presented affect their
answer, we answer questions differently than we act
Justness is endogenous
There are a small number of offenders - their social views may be
completely different from society at large
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IV. Culpability - Elements & Mens Rea
IV. Culpability
A. Offense Elements
1. Conduct
Muscular movement; action is bodily movement = physical action.
By definition, conduct is at least “knowing”.
2. Result
Thing criminal changes by his criminal conduct. (e.g. road is obstructed)
Some verbs can take in both conduct and result, but implicit is that you’re
engaging in conduct that makes result.
3. Circumstance
Beyond criminal’s control; not changed by criminal act (road = public)
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IV. Culpability - Elements & Mens Rea
4. Negligent - unaware of the substantial and unjustifiable risk that the material element
exists or will result from his conduct, but should have been aware because a
reasonable person would have known
Conduct - not possible
Result - [N] should have been aware of the unjustifiable risk
Circumstance - [N] should have been aware of the substantial and unjustifiable
risk that the material element exists
Criminal negligence is not civil negligence: the former is based on intent, and
is a higher bar (needs great deviation from the standard); the latter is based on
conduct, and is a lower bar (even small deviation from the standard)
“Should be aware of a substantial and unjustifiable risk” and “failure to
perceive risk, considering the nature and purpose of his conduct and
circumstances known to him, involves a gross deviation from the standard of
care that a reasonable person would observe in the actor’s situation.”
Somewhat individualized bc recognize “considering…his conduct…”
1. Strict Liability - sometimes we hold people responsible even when they had no mens
rea (e.g. statutory rape, drug weight)
A. Concurrence
1. Basic Concurrence: mens rea must exist at the time of the act or at the time of the
element being applied to
E.g.: “A person commits theft when, with the intent to deprive another of
property, he wrongfully take or withholds such property from an owner
thereof”
Day 1: X takes Y’s sheep temporarily
Day 2: X decides to keep Y’s sheep
Without the inclusion of “withholds” in the statute we couldn’t charge X with
theft, because there is no concurrence if there is only "take"
1. Narrow concurrence - looks at each element separately
Transactional concurrence - looks at what the person was trying to do and takes
Example: Thabo Meli - D believe victim is dead and throw him over a cliff,
while actually it is the fall that kills the victim
Under narrow concurrence: Assault [P] + Murder [R]
Under transactional concurrence: Murder as a whole [P]
1. Bright Line Rules for Concurrence?
a. Arguments for - Jury fairness - jury discretion should be avoided so all offenders
have the same ex ante probabilities (same probabilities going into the court
room independent of race, gender, etc.)
b. Arguments against - sometimes people getting the same outcome is not good (age
considerations), but too much discretionary power could be a slippery slope
A. Objective Elements
1. Issues of Proving Mens Rea
We have to use objective elements to prove subjective intent
Many times there is no proof of what the criminal was actually
thinking/intending to do
Sometimes we cannot identify mens rea because statutes are not written clearly
and we have to fill gaps in them - if a statute has an explicit mens rea attached
to it then we use that but if not we can use the mens rea applied to the clause or
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IV. Culpability - Negligence & S/L
rest of the statute or the default of the particular code (which is usually
recklessness)
2. Classifying Elements
Robinson: conduct is only the muscular movement
Conduct is an action or omission and an action is a bodily movement
Result is the thing that the criminal changes
Circumstance is the thing that it beyond the criminals control (ex:
defrauding a religious official - religious official is the circumstance)
So conduct can only be used for purposely and knowingly mens rea b/c if
you are unaware of what you are doing there is no conduct
E.g. Dealer called and told buyer wrong sense of price. Statute says you are
guilty of fraud when you purposely create false impression as to value.
Could read entirely as conduct - calling and telling the buyer the wrong
price
Could read as conduct and result - conduct: calling and talking to buyer,
result: buyer has the wrong sense of price
Could read as conduct, result, and one circumstance - circumstance: price
Or two circumstances - wrong and price
There is no bright line rule for how to classify elements
3. Assigning Mens Rea
Purpose: Conduct [P] Result [P] Circumstance [K]
Knowledge: Conduct [K] Result [K] Circumstance [K]
Recklessness: Conduct [K] Result [R] Circumstance [R]
Negligence: Conduct [N/A] Result [N] Circumstance [N]
4. Mens Rea are not always clear
If a statute has an explicit mens rea attached to it then we use that
If not, we can use the mens rea applied to the clause or rest of the statute
If no mens rea mentioned at all, we use the default of the particular code
(usually recklessness)
A. Negligence Crimes
1. Problems of Criminal Justification
a. Fairness - we are punishing someone who didn’t know what they were doing
was wrong (we’re punishing them for being absent-minded) BUT the standard
for criminal negligence is higher than the standard for tort
negligence - criminal negligence is gross deviation from the standard of care
b. It is difficult to argue a loss of self-esteem
c. Difficult to prove intentionality - do we get a return from punishing people
being absent-minded?
d. Is there a need to stigmatize? - a lot of times these are one time acts and the
offender doesn’t recidivate
2. Justifications of Punishing Negligence Crime
a. Incapacitation - may be beneficial because it will keep society from having
criminally absentminded people on the street (this has cons - maybe civil
confinement would be better)
b. Rehabilitation -Education v. realism: would education even help? Why waste
resources?
c. Retribution - strongest argument for punishing criminal negligence - punishing
mistakes that are morally wrong. Use gross deviation to try and justify this.
d. Sometimes punishing criminal negligence will have a deterrent effect because
punishing them may make them aware of their negligence in the future
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IV. Culpability - Negligence & S/L
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V. Culpability and Mistake [skip]
A. Kinds of Mistake
1. Reckless - an actor is aware that something he is doing could be wrong but he does it
anyway because he thinks the risk is not substantial
e.g. Knew there was a chance the gun was loaded
1. Negligent - an actor is unaware of the substantial risk and a reasonable person would
have been aware (lack of recklessness)
e.g. Genuinely thought gun was unloaded
1. Faultless - non-negligent mistake because it wasn’t your fault
e.g. “The Crow” - actor kills someone by shooting a gun on a movie set that
was not supposed to be loaded
1. Mistaken Failure - wanted to do crime but failed; this is still punishable by attempt
law
2. Mistake about the Law - ignorance of the law is NOT an excuse
Exception: when knowledge of the law is an element of the crime OR when
someone with high authority tells you the crime is okay
e.g. theft occurs when one purposely duplicates copyrighted material
using illegal software - if you did not know software was illegal this
negates mens rea
1. Mistake and Intent
Culpability Requirement Negated By
Purpose Any mistake
Knowingly Any mistake
Reckless Negligent/Faultless mistake
Negligently Faultless/Reasonable mistake
Strict Liability No negation (no mens rea needed)
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V. Culpability and Mistake [skip]
2. Estrich: No Means No
a. Estrich argues that her tactic would focus more on the man and less on the
victim which would be better.
b. Without focusing on the mens rea of the man we have problems:
i. Strict Liability - a woman can just say she did not consent and then the
man is liable
ii. Unequivocal Resistance - sometimes a woman cannot resist, if we focus
on her resisting only and say mens rea does not matter then there can be
problems
c. Estrich Says we should impose a “no means no” standard b/c all reasonable
men would know the implications of not stopping when a woman says
“no” - we should not tolerate unreasonable mistakes (essentially creating strict
liability)
i. The only way a person could then be negligent would be if you do not
know the rule of “no means no”
ii. The BENEFIT of this standard would be that we do not have to put the
woman on the stand
3. Henderson says “no means no” standard is too limited and ANY manifestation of a
law of consent should permit liability (quasi-strict liability) - he believes that no is
sufficient to show lack of consent but not necessary
a. A woman may be afraid to say “no”
b. ANY manifestation of lack of consent should make a man reckless every time
(after manifestation, no mistake is acceptable)
c. He also says if no manifestation exists then a man is not even negligent
4. Remick: Yes Means Yes
a. Requires an explicit signal to go forward with sex
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VI. Doctrines of Aggravation - In General & FMR
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VI. Doctrines of Aggravation - In General & FMR
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VI. Doctrines of Aggravation - Justification
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VII. Doctrines of Mitigation - 3 Doctrines & Theories of Punishment
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VII. Doctrines of Mitigation - 3 Doctrines & Theories of Punishment
EED and provocation are mutually exclusive, you can apply only one of
them.
No banned provocations - there is no list of things that do not count as a
matter of law under the MPC approach (except idiosyncratic political
views)
Laxer temporal standards - at no point does the code say that at some
point a person is no longer emotionally disturbed (the code may even
allow you to say your disturbance increased over time)
No target restrictions - no requirement of connection to the victim
3. (Diminished Capacity) - Not really a mitigation approach, it is more a pro-
prosecution mitigation approach because it denies you certain mitigation defenses
(pseudo-mitigator)
a. Not really used anymore, this is a common-law doctrine that closely resembles
an insanity issue - this is an absent element defense. Because of a mental
disease, the defendant does not have the mens rea requirement.
b. List: contained a list of acceptable impairments and if yours is on the list you
are acquitted and if yours is not on the list you are convicted
Minimizes the defenses a defense attorney can make if your disease is
not on the list
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VII. Doctrines of Mitigation - Criticism & Issues
3. What do people want regarding mitigation? - Research shows that people want some
individualization - results are all over the map but we see that people tend to care
about upbringing, education, IQ and not so much about age
4. Cultural Differences and Wu Case: We can’t just ask what factors are good for the
defendant; we also have to look at what is good for society as a whole. Factors have
ramifications apart from the criminal law system. Ex: If we say that women should be
sentenced less than men this could be seen as patronizing to women.
A. Mitigation Issues
o Should cultural background be a mitigating factor?
If yes, is the cure worse? Is implementation worse (bc handled by
judges/juries, which would further stereotypes)?
o Should genetics be a mitigating factor?
Do we trust science?
Do we trust implementation of science?
o Essentially left to jury re: EED/EMD
As a matter of law, what types of things do we want to raise / to take into
account? = MORAL question.
Fletcher: focus on “reasonable person” standard for EEM abdicates our
responsibility to think about moral issues.
Defer to wisdom of crowd rather than making judges take a stand, make
decision.
Why are we looking at this as part of substantive crime rather than at
sentencing?
o Why do we mitigate rather than give the judges more flexible room for sentences?
In England what you were convicted for have a very important aspect on your
sentence so it was important to create this doctrine
This is also true in modern sentencing provisions - Davidson case - by
increasing her crime from manslaughter to murder her sentence was increased
by 12 years
o Another point: Does specific offense matter? - When you get the same sentence for
both manslaughter and murder who cares? - Does murder have the same stigma as
manslaughter?
o E.g.: Gounagias case study
First degree murder: “The killing of a human being … is murder in the first
degree when committed … [w]ith a premeditated design to effect the death of
the person killed…”
Second degree murder: “The killing of a human being … is murder in the
second degree when [c]omitted with the design to effect the death of the person
killed…, but without premeditation”
What does premeditation mean? - the code does not define premeditation and if
we look at both first and second degree murder statutes (which we
should - always look at statutes in relation to each other) we see that
premeditation is in both.
Second degree murder statute says “design to effect the death” - requires
some type of planning (premeditation) ß gives an argument for the
defense, any type of purposeful death needs some premeditation
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VIII. Causation - But-For & Proximate Causes
VIII. Causation
Note: Causation does not make one culpable, it is just one of the pieces of the puzzle (also need
mens rea)
A. But-For Cause: had x not been done, y would not have happened
E.g.: A chases B, B runs across the street and is hit by a bus
A. Proximate Cause: Whether or not the causal connection was “sufficiently” close
1. Proximate cause differs in many courts - it’s an inherently blurry line and allows
more room for discretion (allows us to use our judgment, but there is a lack of
consistency)
E.g.: from above continued: are A’s parents liable because B would not have
been hit by bus if A’s parents had not had A? - No, we almost will never put
our parents on the hook for our actions (some exceptions as a MOL)
E.g.: A chases B, B runs for 30 blocks and is hit by bus - is B being hit
sufficiently close even though he ran for 30 blocks?
2. Test of Proximity:
Foreseeability - it is foreseeable that you would cause this result from your
action. As long as the result isn’t too surprising = proximate cause
Actuarial approach - how much more likely was the result because of what you
did?
Sufficiency: Was the act sufficient to cause the result?
3. Intervening Actor - default rule is that an intervenor breaks the causal chain (parents
example)
intervening cause relieves the original wrongdoer of criminal responsibility
unless the intervention was foreseeable/responsive(dependent).
If one’s actions helped create the situation, the second person’s act is not
intervening and you can be held causally responsible.
Influence exception - The intervenor must be acting freely.
Ex: A girl jumps out the window and kills herself because the alternate
decision was to get beaten by me. I am on the hook for causation for her
jumping out the window because she did not have free will.
How much free will does an actor need? - Line is unclear. Conflicting
drag racer examples.
Decision-maker must determine whether the intervening actor’s choice reaches
the point on the continuum of voluntariness that extinguishes the primary
actor’s accountability for the result.
4. Intended Consequences Doctrine
Even if D's conduct was not sufficient because of others' intervening actions, if
the consequence is as intended by D, then he might be convicted. Others' act
does not override D's intentional wrongdoing -- you got exactly what you
wanted. What right do you have to complain If you are held responsible for the
intended consequence?
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VIII. Causation - Harm Principle
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VIII. Causation - Harm Principle
the public tends to take an objectivist approach and wants to punish person
who commits crime more harshly than the person who attempts it. 1st degree
crimes make the news - we want to make people happy but the MPC keeps
anything below 1st degree the same
POLICY QUESTION:
Bury subjectivity bc people care about objective harm?
Why does causation matter?
Causation matters if harm matters.
Look at theories of punishment - does harm matter or intent?
What is the evil? What is trying to be deterred?
Evidence issues:
More confidant that you intended to commit crime if we can see the
harm.
A. Blockburger Test
o Blockburger Test - you cannot use the same act to constitute a violation of two
distinct statutory provisions. You must prove that one thing is unique to each
conviction (must put in work to get the conviction).
o Ex: Grand theft and horse theft - grand theft requires theft of over $100,000 and
horse theft requires theft of a thoroughbred horse
Horse is worth 2 million
You can still convict for both because there are two separate elements - the
$100,000 and the thoroughbred horse
o Ex: Assault and aggravated assault - if you get aggravated assault you’ve
automatically gotten assault. You cannot convict for both.
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IX. Attempts - Tests of Closeness
IX. Attempts
A. To be liable for Attempt:
How close to completion must you be? - Thinking bad thoughts? Should bullet have
to leave the gun? --> you don’t charge someone with intent, you charge them with the
actual crime
What should your mental state be? - Can you recklessly try and do something?
A. Tests of Closeness
1. Proximity Test - Common law approach, asks how close to completing the crime
were you, tends to give the most leeway to criminals
a. Physical Proximity - How physically close were you
b. Dangerous Proximity - How close to actually committing the crime?
c. Indispensable Element - Do you have every necessary piece?
d. Probable Desistance - Are you still likely to quit? Is there room for you to
change your mind?
2. Res Ipsa Loquitur Test - how clear is your intent - “the thing speaks for itself” - does
your objective behavior manifest intent? Conduct reveals intent to commit crime
a. We want the conduct to be unambiguous - but this is difficult because we have
to guess subjective intent from objective facts
3. Substantial Step Test (MPC) - A person is guilty of attempt if he purposely does
anything which is an act constituting a substantial step in a course of conduct planned
to culminate in his commission of the crime
a. This is different from the other approaches because it doesn’t ask how close to
completing the crime you were it asks how far from mere thoughts you are
b. Examples: lying in wait, luring the intended victim, reconnoitering, unlawful
entry to intended location of crime, possession of materials of no lawful
purpose, possession of materials near scene of crime, soliciting an innocent
Remember you still have to prove mens rea
c. Tends to be a one size fits all for basically all crimes under MPC
d. Concern: evidence. Says if you take a step towards completing a crime, even if
you may not do it, you are guilty.
e. This is different from preventive detention because you still need mens rea - we
can’t just detain minority things like drug addiction, homelessness, etc. - we
need a mens rea elevating component
f. Examples of steps:
Lying in wait;
Luring the intending victim;
Rennonoitering = reconnaissance;
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IX. Attempts - Issues
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IX. Attempts - Issues
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IX. Attempts - Issues
Some statutes force us to elevate purpose for conduct and result - would make
it harder to get people [remember common law elevated all to
purpose - conduct, circumstance, and result ß makes it incredibly hard to get
people]
Courts/jurisdictions differ on how to elevate
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X. Complicity
X. Complicity
A. Imputation of Crime: charge accomplice with crime itself.
Did accomplice intent to facilitate principal’s act that constituted a crime?
o NO --> Done, no charge.
o YES --> Treat accomplice as if he is primary himself, as if he did the crime.
Mens rea for conduct, result, circumstance?
A. Common Law:
o Had to actually assist the principal
o Aid does not need to be substantial
o Elevates conduct, result, and circumstance all to purpose
A. MPC
1. Basically, a person must do an act with the intent that the principal will do an act and
then you can treat the accomplice as if they are the principal; Principal does not
need to know.
Solicits another person to commit
Aids or agrees or attempts to aid such other person in planning or committing it
(elevates conduct only)
2. Inconsistency with objective standard:
Liability depends on whether principal objectively succeeds.
Liability is not entirely dependent on actor’s own culpability.
Accomplice Assistance Primary’s crime Outcome
Succeed Succeed Accomplice full liability
Fail Succeed Accomplice full liability
Succeed Fail Accomplice gets Attempt liability
Fail Fail Accomplice gets Attempt liability
1. First assess: Mens rea for assistance.
a. MPC: Accomplice must have purpose for assistance/facilitating the CONDUCT
(e.g. driving drunk), not necessarily the result (e.g. death); not his own conduct
(e.g. handing over the keys).
1. MPC rejects “knowledge” mens rea level for assistance, hence why there
is Facilitation liability.
2. Then assess: Mens rea for resulting crime.
a. Accomplice must have mens rea for
1. Conduct: purpose for principal’s conduct = ELEVATION.
2. Result: mens rea for result same as principal
3. Circumstance: MPC is silent; leaves up for judges.
4. CAN have primary charged with manslaughter (recklessness) but
accomplice charged with murder (purpose) - look at Accomplice in
his own bubble, with his own mens rea.
Mens Rea Accomplice / Assistance Primary’s Crime
Result Intent; purpose. Whatever Accomplice fulfills
Conduct Intent; purpose.
Circumstance
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X. Complicity
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XI. Conspiracy - Doctrines & Elements
XI. Conspiracy
A. Doctrines of Conspiracy:
1. In general
Group behavior
Groups are more dangerous, they engage in riskier acts, they tend to
conform to the group and go along with the group even if they don’t
agree
Conformity over self-interest b/c of peer pressure; more extreme views.
Economies of scale makes groups more efficient (purchase power,
division of labor, resources)
It’s a bad act in and of itself when you know of a crime coming and you
don’t alert police to it (this is a moral wrong)
Extra moral culpability
Bad act by omission (knew what others would do but didn’t tell)
2. Super Attempt
agreement to do a crime + an overt act = Substantial Step of Attempt Liability
Because have both elements, shows greater willingness to go through with
crime, so more comfortable to move in sooner.
We technically already have laws in place to punish conspiracy (crime,
accomplice, attempt, etc.)
3. Stand Alone Crime - something you can be charged with as an actual crime
Stacking: can charge with Conspiracy to commit murder and Murder.
If crime is completed, can still get for conspiracy.
More than evidence reason for moving in sooner; agreement and over act is
more harmful!
4. MPC is Confused: Stacking vs. Merging
Merging: conspiracy merges into the completed crime and treats it as if only
the crime was committed AND MPC says you can only conspire ONE thing at
a time
Stacking: charging person with both conspiracy and the crime
Wharton’s Rule: Always merge if offense requires agreement (e.g. drug
smuggling) -- If can’t commit crime without agreement, agreement IS part of
offense. Therefore, by definition, punishment takes into account conspiracy.
B. Conspiracy Elements:
1. Actus Reus
2. Agreement
Evidence Required
Doesn’t require something written and signed - can be implicit/indirect.
Going to be ephemeral - must infer from objective evidence.
Policy issue: don’t want to restrict conspiracy to narrow area bc
conspiracy is a powerful tool for prosecutors.
Allow circumstantial evidence that conspirators talked.
Directness of Agreement.
Where agreement is necessary / essential to conspiracy, actions =
agreement.
Circumstantial evidence + implicitly agreement + agree to do same thing.
Acts coordinated in diffuse way suggested implicit agreement.
E.g., Interstate (price fix movies $0.25) - to succeed, need cooperation,
therefore implicit agreement to price fix. NO TALKING.
3. Overt Act: in furtherance of the conspiracy by at least 1 member of the
conspiracy
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XI. Conspiracy - Scope of Conspiracy Liability
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XI. Conspiracy - Types of Conspiracies
Accomplice but not a conspirator - you help but do not agree to help (much rarer),
ex: Bib acts as a lookout for Muscle but Muscle does not know he is doing this
A. Types of Conspiracies:
Chain Conspiracy - need to know other people exist (show they know other people
are part of the process) but not their exact identity. Resembles a distribution train. X-
Y-Z-W
Wheel Conspiracy - independent actors all dealing with one central actor
Central actor [Hub] - clearly guilty of entire conspiracy
Others who deal with central actor [Spoke]- hard to prove they are guilty of
the entire conspiracy, more likely they are guilty of each individual smaller
conspiracy
How to Connect [Rim]- can connect spokes of the wheel by proving that there
is some reason why they must know others are out there (or show that it is
impossible NOT to know that central actor is dealing with other people)
Wheel and Chain Conspiracy - combination of the two, must show that people on
the chain knew of people on the wheel and vice versa
Racketeer Influenced and Corrupt Organizations Act (RICO) - (Pinkerton taken to its
fullest extent)
4 Types of Violations: 1) Using bad money to buy good company, 2) Using
racketeering to exert control over good company, 3) Employee in good company
using racketeering to do job, 4) Conspiring to do 1-3
Extensive scope - focuses on the whole enterprise and wide vicarious liability
Gang Laws - differ across states, coordinated actions, realize that a lot of times when we
define a group as a gang we make them stronger not weaker
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XII. Justification - Lesser Evil
XII. Justification
A. General Concept
1. Justification is an Act-based defense - no liability because act is good (socially
beneficial)
Not a mitigator, just no liability at all
A justification is NOT an excuse - the act is still NOT justified but it can be
excused (ex: insane person killing someone is wrong, but no culpability)
B. Lesser Evil
1. Three Components:
Protected Interest - it will avoid a harm or evil to himself or to another (not
very restrictive)
1. Enumerated or unenumerated rights - very open ended, many things can
be considered rights - not very restrictive at all
Necessity - 1) temporal and 2) harm
1. Temporal necessity, either:
a. Imminent threat: Danger itself must be immediate, harm is coming
right now
b. Immediately necessary: Need to respond must be immediately- this
is what D would prefer
2. Harm necessity - doing the crime must accomplish something
a. Alternatives - should be no other alternatives
b. Causal justification - what you are doing must accomplish what
you want
3. Area for juries to decide; not a question of fact, but a value decision: is
responding now/at this point, the kind of timing that we, as
representatives of community, think is ok?
Proportionality - balancing the harms (jury decision)
1. Harmful act must be less harmful than harm avoided.
2. Again, question of community values but:
a. Legislature defines the tradeoffs jury can consider, e.g. what types
of defenses apply / how narrow the conditions under which jury
can consider.
3. Look at whether there are procedures in place:
a. Shows that Legislature has thought about this type of conduct, and
put procedures in place to define what appropriate / where the line
is.
4. Costs
a. Potentially arbitrary application of broad defense.
Juries MAY invoke in troubling, arbitrary way. BUT is
random arbitrariness bad (NO); only when pattern of
discrimination (nature of victim, etc) that is problematic.
b. Undermines General Deterrence in some settings.
Highly contextual, situation-specific.
c. Puts power to juries to decide which law is more important.
5. Benefits
a. Limits prosecutorial abuse by allowing those targeted to avoid
punishment.
b. Satisfaction of legal sanction = getting a positive signal from
juries, “we agree with your situation” rather than the ambiguous
signal of just not being charged.
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XII. Justification - Defensive Force
2. Key Elements:
You can use lesser evils if nothing more specific applies (specific controls the
general)
Your belief that the act is necessary CANNOT be reckless or negligent - when
you’re mistaken it’s okay unless you’re recklessly or negligently wrong
Focus on the ACT not the ACTOR
3. Issues
Rarely used.
WHY? Is it deterring? Does no one commit the crime where this justification
is allowed? Is it just never prosecuted?
Often overlaps with duress.
Other ways to accomplish the same end:
Jury nullification.
Lenient sentencing.
Political pressure on prosecutors.
A. Defensive Force
1. Types:
Self-defense
Defense of others
Defense of property
2. Requirements:
Trigger - ex: in MPC it is “unlawful force”
Subjective, NOT OBJECTIVE, views of risk - your beliefs must be
reasonable
Objective Trigger standard:
May never be at risk; would a reasonable person in your
situation have reacted with force proportionate in the amount
you did?
Subjective Trigger standard:
Actor believes response is necessary; therefore act is not
unreasonable; point of Justification is that society is
recognizing, even encouraging, behavior under certain
conditions.
Reasonable, but not correct.
Reasonable person under like circumstances - you cannot be acting
recklessly or negligently
Sequential Unlawfulness.
When does the Defensive Force become Aggressive Force?
Look at each chain separately: is response disproportionate?
No disqualification re: actor’s recklessness or negligence in bringing
about the situation requiring force (e.g., can be brought about by D).
Concurrence/duration issues
Necessity - MPC says “immediately necessary”, whereas lesser evils is just
“necessary” - defensive force is NARROWER than lesser evils
Immediately causes problems - makes battered wife syndrome more
difficult - killing the person in his sleep is not an immediate threat
Proportionality - MORE PROPORTIONALITY RESTRICTIONS (saying as
a MOL this is not proportionate) - there are listed restrictions
More proportionality restrictions when it comes to deadly force
No deadly force when it comes to protecting property (MPC)
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XII. Justification - Defensive Force
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XIII. Excuse - Disability & Mistake
XIII. Excuse
A. General
1. Excuses v. Justifications
Justification: focus on the act, act is inherently acceptable
Excuses: focus on the actor, act is not acceptable BUT actor lacks sufficient
culpability
excuses relate to a condition that is peculiar to the actor, such defenses
are generally considered to be non-delegable and, thus, unavailable to an
accomplice.
2. Requirements:
Need a disability or mistake
Needs to be an excusing condition
A. Disability
1. Inability to control movement or understand actions
a. Involuntary movement (seizures);
b. Un-comprehended action (hallucinations);
c. Inability to appreciate criminality (insanity);
2. Other factor limiting control: duress
3. Excluded:
a. Voluntary intoxication (what about voluntarily going off meds?).
b. Psychopathy.
A. Mistake
1. Wholly involuntary act.
2. Ignorance of Nature of Act: Voluntary act but you don’t appreciate its implications.
3. Ignorance of Wrongfulness of Act:
a. You do appreciate implications of act but you don’t know it’s criminal.
b. Ignorance of the law, “did not realize it was a crime”.
1. CL - doesn’t allow as defense.
2. N.B.: willful blindness can turn recklessness into knowing.
3. NJ Statute: culpability mitigation = research
a. Belief that act is not a crime is a defense if actor “diligently
pursues all means available . . . and honestly and in good faith
concludes his conduct is not an offense.”
b. Research as a defense:
Concern is people who are skating the line of legality/criminality;
do we reward people who skate the line for doing research or do
we make them bear costs for taking the risk?
a. Relying on official misstatement.
Sources: statutes, judicial decisions, administrative orders; official
statement from officer charged with interpretation (D.A., NOT cop on
beat).
a. Unavailability of law.
Narrowly defined: requires publication, not access = ignorance of the
law.
a. Mistaken justification.
b. Reliance on unlawful military orders.
1. Impairment of control:
Partially voluntary act, partially involuntary (bc of duress) but would otherwise
be fully liable bc knew of nature and consequences
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XIII. Excuse - Insanity & Theories of Punishment
A. Insanity
1. Insanity - primary excusing argument
Legal NOT a medical issue
Question is NOT whether you have the disease (may be prove during
trial), but whether the disease’s implications impair D’s behavior and
affect criminal liability.
Diagnosis is made by the jury, not a doctor - as a factual matter
Psychopathy is excluded (not really justified by theories of punishment)
Insanity defense only matters when you can otherwise convict the actor of the
crime; if mens rea is negated, then insanity defense doesn’t matter.
2. Four Tests: all look at your point of cognition, some look at your control
McNaughten - says you are completely incapable from knowing right from
wrong, this is the toughest standard to satisfy, used in about 50% of the states
Cognition - absolute
Control - not included
Irresistible Impulse Test (IIT) - either (1) you are completely incapable of
knowing right from wrong OR (2) you are completely incapable of not doing
the act
Cognition - absolute
Control - absolute
Durham/”Product” Test - insanity is a but-for cause, most lenient standard,
only used in New Hampshire
Cognition - but-for
Control - but-for
ALI Test - insanity does NOT need to be the sole cause but it needs to be a
substantial factor - you are having a really hard time fighting these urges, used
in half the states
ALI no control test
a. Cognition - substantial factor
b. Control - not included
ALI with control test
a. Cognition - substantial factor
b. Control - substantial factor
3. Restrictions:
“Guilty by Mentally Ill” (GMBI) - now you can be guilty OR not guilty OR not
guilty for reason of mental defect OR guilty but mentally ill
Treated the same as a guilty verdict - you face the same punishment and
treatment options (every incoming prisoner gets screened)
Huge civil implications: D could spend more time incapacitated -- Goes
to pysch ward; when “cured” goes to jail for rest of sentence.
Discourages juries to find person N.G. by reason of mental defect when
they feel guilty about convicting someone mentally ill. But also distracts
jury to make medical diagnosis?
Abolition - with the abolition you would be guilty if you had the right mens rea
even if you had no control of your acts, but you can still use insanity to show
you didn’t have the mens rea necessary, used in 4 states
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XIII. Excuse - Insanity & Theories of Punishment
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