Criminal Law Tutoring Session 6

April 20, 2011

Overview
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Criminal law system Trial procedure

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Defining criminal conduct

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Legality Proportionality Actus reus Mens rea Mistake of fact Strict liability Mistake of Law Actus reus Mens rea Reform issues Premeditation Provocation
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Unintended killings Felony-murder Death penalty

Evidence basics Burden of proof Advantages Disadvantages Blame Justifications

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Juries
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Significance of the resulting harm

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Causation Attempt Complicity Corporate liability Conspiracy Justifications Excuses Insanity

Issues in punishment
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Group culpability
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Rape
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Retribution Utilitarianism Vengeance

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Principles of exculpation
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Homicide
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Sentencing

Where we are now

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Criminal law system Trial procedure

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Defining criminal conduct

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Legality Proportionality Actus reus Mens rea Mistake of fact Strict liability Mistake of Law Actus reus Mens rea Reform issues Premeditation Provocation
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Unintended killings Felony-murder Death penalty

Evidence basics Burden of proof Advantages Disadvantages Blame Justifications

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Juries
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Significance of the resulting harm

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Causation Attempt Complicity Corporate liability Conspiracy Justifications Excuses Insanity

Issues in punishment
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Group culpability
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Rape
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Retribution Utilitarianism Vengeance

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Principles of exculpation
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Homicide
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Sentencing

Attempt
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Crime that need not be completed in order to be punished Either criminal fails Or police stop the attempt mid-crime If the crimes completed, it merges. No charge for attempt when theres a crime

Attempt
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Punishment
Historically, a misdemeanor ! Typically now, ! the sentence ! Some j/ds (and MPC): Parity. Same sentence.
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Mens rea: Same as for the completed crime

Smallwood v. State: D had raped women knowing he was HIVpositive. Question is whether thats an attempt to murder. Court said that D in this case did not show intent to kill. ! Minority rule of 1: Colorado allowed attempted reckless manslaughter (People v.Thomas)
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Attempt
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Preparation: How much is enough for attempt?

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Last act/Last step test: ! King v. Barker: Traditional view: Needs to be last step in line. Currently, all thats known is that conduct must be somewhere b/t the first step and the last in order to constitute an attempt. ! People v. Rizzo: D and three others planned to rob guy they knew was carrying payroll. They were arrested while driving around looking for him. Conduct was too far up the line to be the last step in the chain.

Physical proximity test: Actions must also be in physical proximity to crime

Attempt
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Abandonment can be a defense

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Victims convincing " to stop is not abandonment

Equivocality test: How clearly the Ds acts bespeak his intent.

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McQuirter v. State, D, a black man, drove up street behind white woman, then loitered outside her house. She was scared. He was arrested for attempted rape, and sheriff testified that D said that he had intended to rape her. He was convicted based on that evidence.
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Substantive crimes of attempt

Burglary (entering a dwelling) Stalking

Attempt
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The MPC substantial step test

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MPC 5.01 formulation on CB p. 1099

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Intent to complete the crime is necessary (mens rea for completed crime). 5.01(1)(b): Purpose of causing or belief it will cause a result. 5.01(1)(c): Substantial step 5.01(2) strongly corrborative of a criminal purpose. United States v. Jackson, Ds convicted for attempted bank robbery, court said that they took substantial steps toward the robbery that went beyond mere preparation J/d adopted MPC substantial step. United States v. Harper: Bill trap in the ATM: D seeded ATM and was apparently lying in wait to rob someone. Conviction reversed: Court of Appeals said that was not a substantial step.

Attempt
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Solicitation
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When someone else asked to do the crime

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State v. Davis: D solicited person for murder of girlfriends husband, but the person he found was a cop. Cop appeared to be carrying out plans but had no intention of doing so. Attempt? Court said no. (Cop didnt have mens rea for the act).

What if its impossible to actually commit crime? (Impossibility defense)

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Legal impossibility is a defense (Completed act is not unlawful.)

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People v. Jaffe D bought cloth that he believed was stolen. It wasnt actually stolen.

Attempt
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Hybrid legal impossibility: D intends to complete a crime, but because of a factual mistake, the crime never could have occurred.
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United States v. Berrigan: Anti-Vietnam priest convicted of smuggling letters outside of prison w/o wardens consent. Warden knew and was OK with it. Ds mens rea was to commit a crime, but he didnt actually commit one. People v. Dlugash: D shot a man he thought was already dead. Friend had shot man first.Victim very likely already dead (expert testimony unclear). Court of Appeals says that factual mistake is not a defense. D is properly convicted of attempted murder.

Factual impossibility is not a defense

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Group Culpability
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Complicity
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Someone helps the person who commits the crime At common law:
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Principals Accessories
Before the fact: Counseled and/or commanded commission of crime but not present ! At the fact: Counseled at the scene of the crime ! After the fact: Aids felon in avoiding capture and/or prosecution
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Group Culpability
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MPC 2.06 /Modern version

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Both principals and accessories treated as accomplices Can charge a bunch of people as accessories if not sure who did it, and sentence them all equally Dont need conviction for principal to get accessory conviction

Group Culpability
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Mens rea of accomplice must rise to specific intent State v. Gladstone: D drew map and sent customer to pot dealer but didnt otherwise facilitate transaction. Court said this wasnt intent to sell drugs. Hicks v. United States: D urged friend on to shoot victim. Court says he must have intended to actually encourage friend, not just intend to say what he said.

Group Culpability
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Mens rea of attendant circumstances: Ambiguous. Best left to resolution by the courts. Causation can be pretty attenuated:
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Wilcox v. Jeffery: Journalist aided illegal jazz performance because he attended, applauded.

Corporate Liability
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Entities liable for the actions of agents

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New York Central v. United States: RR was liable for the actions of its agents, who were paying rebates to certain shipping companies. Taking it to extremes
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United States v. Sun-Diamond. Corporations conviction upheld even though agent actually defrauding company. Court said co. must have encouraged support of candidate.

MPC approach: Corporation still liable if manager did due diligence to prevent the crimes commission. Notes critical of this in that it both over- and under-criminalizes corporate conduct.

Corporate Liability
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Employees can be held liable for their actions on behalf of the company Responsible corporate officer doctrine: CEO responsible for act committed by company even if employee really did it. .
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United States v. Park: Company charged with violating Food and Drug Act. Food was held in bad warehouse and rats got in the food. CEO said he wasnt responsible for decision. Convicted. Courts most comfortable with this when the crime is regulatory and the penalty not steep

Conspiracy
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People agree to commit crime together. Can be convicted whether target crime took place or not Prosecutors love it: Get a bunch of Ds with the same evidence Krulewitch v. United States: Cant use testimony about the conspiracy to prove a past conspiracy

Conspiracy
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Actus reus: The agreement itself

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United States v. McDermott: No agreement, no conspiracy Majority of j/ds require an overt act as well.
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MPC requires it for felonies of third degree or less (MPC 5.03(5))

Mens rea:
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To achieve an object thats either unlawful as such (intent to commit murder thats criminal) OR Intent to complete act that if done in the course of a conspiracy became unlawful. Example: conspiracy to evade a regulatory obligation to the government

Conspiracy
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Purpose is normally required, but People v. Lauria. (Prostitution ring case). Knowledge was enough mens rea to prove conspiracy. Minority rule. Pinkerton rule
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Accomplice is on the hook for any reasonably foreseeable crime committed by a co-conspirator in furtherance of the conspiracy
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Used by about ! of j/ds Pinkerton v. United States: Walter and Daniel Pinkerton were brothers in IRS fraud scheme Court says because the offenses were unlawful acts committed in the furtherance of the conspiracy, Daniel is on the hook for the substantive crimes, too, even from prison.

Conspiracy
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MPC rejects the Pinkerton doctrine and only imposes liability when the conditions for accomplice liability are met Abandonment is not a defense
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Have to do something do affirmatively withdraw Or (MPC and some j/ds) take action to thwart the conspiracy

Conspiracy
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Multiple conspiracies Wheel and spoke: One person in the center knows whats going on, but those on the outside (wheel) dont know everything (Kotteakos) Ball and chain: Everyone knows the next link in the chain and knows there are other links, but doesnt know the whole chain. (Bruno)

MPC approach: Would look at each co-conspirator as an individual and charge for part of conspiracy he was involved with
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Insanity
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Excuse: D didnt know that what D was doing was wrong Defense has the burden of proving that D is legally insane Must prove D competent to stand trial
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MPC definition (CB P. 867): no one who lacks capacity to understand the proceedings or assist in own defense shall be tried.

In case of execution, must prove D competent to be executed (not punishment if cant understand whats happening)
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Barred by 8th Amendment

Insanity
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Classic insanity test: MNaghten rule

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MNaghtens Case: Man indicted for murder of prime minister. He thought that the Tories were persecuting him and intended to kill P.M. His defense raised an insanity excuse and was acquitted. Judges met to determine if this could be. Rule that came out of that meeting: To establish insanity defense, prove that he was under such a defect of reason that he didnt know what he was doing, or didnt know that what he was doing was wrong.

Insanity
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Majority test.
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For a while, went with MPC formulation below. Then after Hinckley decision (Reagans would-be assassin) districts started going back

MPC approach: Lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
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Volitional as opposed to cognitive approach

Minority of j/ds have abolished insanity defense completely

Insanity
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Must suffer from mental defect to invoke insanity defense

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State v. Crenshaw D decided wife had been unfaithful and murdered her, then went to great lengths to conceal her body. He claimed that his religion made it mandatory to kill adulterous wife and pled insanity. Court says issues is not his faith, its whether he did not know act was wrong. Wrong in this case is societys moral standard, not Ds (majority rule)

Its a legal definition of insane, not a medical definition

Coming up: The final

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Short answer Multiple choice One longer short answer Some sort of word limit Some sort of outline (longer than 2 pages) *Maybe* your casebook ALL SUBJECT TO CHANGE WHAT PROF. WHITE SAYS SUPERSEDES THIS SLIDE!

Coming up: The final

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Prof. White will hold review session during finals period Janna will take e-mailed questions
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janna.fischer@colorado.edu My cutoff is 5 p.m. Sunday, May 1