I. FOUNDATIONAL PRINCIPLES 1. NATURE AND STRUCTURE OF CRIMINAL LAW i. Nature / Features of Criminal Law 1.

The criminal law involves public law. That is, although the direct and immediate victim of a crime typically is a private party (e.g., the person who is robbed, assaulted, or kidnapped), and other individuals are indirectly harmed (e.g., the family members of the direct victim), a crime involves more than a private injury. 2. A crime causes social harm, in that the injury suffered involves a breach and violation of the public rights and duties, due to the whole community, considered as a community, in its social aggregate capacity. 3. A person convicted of a crime is punished what is significant here is that the the essence of punishment lies in the criminal conviction itself, rather than in the specific hardship imposed as a result of the conviction. The hardship suffered as a result of the criminal conviction may be no greater or even less than that which results from a civil judgment. 4. First, the criminal law is a blunt instrument, used in our name. The criminal justice system, which enforces our criminal laws, inflicts pain on persons convicted of criminal conduct by taking their life, liberty, and/or property. Any system that intentionally causes such suffering requires a justification. The principles discussed in this chapter provide potential bases for legitimizing our criminal justice system. ii. MPC 2.02 General Requirements of Culpability: A person not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, with respect to each material element of offense. 1. Consent. Consent may be defense if: a. Bodily injury consented to or threatened by the conduct consented to is not serious b. The conduct and injury are reasonably foreseeable hazards in lawful athletic/sport contests c. Consent establishes justification for conduct of code d. Ineffective consentlegally incompetent, youth, mental disease or defect, consent is prevented by law, induced by force iii. Deminimis: Defendant OK if no cause or threat of harm, within customary license or tolerance, other reasons that legislature would agree with when it forbid the offense iv. Culpability, Defined: Blameworthy attitude or disposition, law demands at least recklessness as to every offense element, knowledge or purpose are commonly required to one or more offense elements 1. Mens ReaGuilty Mind v. Model Penal Code Reform in 1962almost all states have adopted vi. Crimes v. Violations: violations do not reflect same moral gravity as crimes vii. Malum In Se vs. Malum Prohibitum: bad in itself bad because prohibited viii. Objective and Culpability Elements: definition of an offense typically consists of objective elements, which describe physical behavior required by the offense, and culpability elements, which describe offenders subjective awareness or attitude toward the behavior ix. Obj Requirements of Murder: Actor engage in conduct that causes death to another human being x. Culpability Requirements: May require that actor know the nature of conduct, that will cause a death, and that death cause is that of a human (varies according to jurisdiction) xi. Doctrine of Imputation: May allow for someone to be liable for murder as an accomplice, doctrine of voluntary intoxication can impute culpabililtydefendants treated as if they satisfy the required element of recklessness, causing death 2. PURPOSES & JUSTIFICATIONS OF CRIMINAL LAW i. Justifying Punishment: Criminal law imposes punishment; deliberately inflicts hardship on people as response to wrongdoing ii. Retributive JustificationBased on moral principle that wrongdoers deserve punishment. No other justification needed because achieving retributive justice is good/valuable. Not concerned with preventing future crimes, may have that effect through generating legal rules

iii. Utilitarian JustificationConsequentialist in nature. Punishment justified for beneficial consequences. Various mechanisms: deterring threat with sanction, rehabilitating offender, or incapacitating offender 1. General DeterrenceAiming to deter other potential offenders 2. Special DeterrenceAiming to deter the offender at hand a. Maintains Prospect of additional punishment for additional crimes b. Proportionality c. Must maintain high levels of punishment for offenses of low detection d. Punish one crime deter different crimes 3. Methods of Punishment: Incapacitation, Rehabilitation 4. RehabilitationTakes away offenders desire or need to engage in criminal conduct. Med treatment, psych, education, training, community service, etc. Focus on bettering offenders and promote law abiding citizens. Requires ability to ID those who need REHAB 5. Assumes rational thought iv. Retributive Justification: Just Desert 1. Deontological Desertthe sole criterion for punishment is the actors moral blameworthiness. Only punishment if, and only if, he or she is blameworthy. Punishment corresponds to blameworthiness. Maintain Laws Moral Standards, practically inefficient, inattention to crimecontrol issues 2. Empirical DesertBased on communitys shared intuitions of desert. Example: most take into consideration. Empirical DesertRetributive Means Promote Utilitarian End, mismatch between citizens beliefs of justice system and practitioners, vigilantismsubsidiary effect of a utilitarian principle through its strengthening of the moral credibility of the system 3. Desert as relative rather than absolute judgment: absolute punishment disagreed about, relative often agreed. Research shows that quite strong agreement among people on relative punishment v. Alternative Justification: Restorative Justice 1. Sentencing circles 2. Victim restoration 3. Community focus vi. Deterrence: Under right conditions deterrence can prevent future crimes 1. Must be aware of rule 2. Assumes rational thought 3. Only deter if actor determines costs outweigh benefit of crime vii. Rehab: Value beyond crime-controlstrengthen communities, should not be the lone method of distribution viii. Incapacitation: Limited to offender, concern for false positives ix. Model Penal Code Section 1.02 mentions all distributive principles and urges judges to advance all of them x. MPC REVISION 1.02: Desert as primary distributive principle xi. Bentham 1. Punishment ought not to be inflicted if: 1. Misapplied 2. Inefficacious, 3. Superflous, 4. Expensive 2. Consequence must be greater than the crime 3. Certainty, Proportionality and Deterrence xii. Robinson 1. Deterrence not good: a. Effectiveness cannot be sustained over long term b. Criminogenic costs hidden in functioning 2. Manipulating criminal law and penalties not effective 3. Lawmakers suppose that measures will have a direct deterrent effect on conduct 4. Info/data is virtually impossible to obtain 5. Deterrence only makes sense if it deters more than other principles 6. Deterrence works best when unjust decision is made

7. Assumes rational choice 8. Vengeful Desert a. Eye for an eye Punishment=Harm caused by the crime b. Often seen as institutionalization of victim revenge c. FITS: in low-level crime xiii. Modern Desert: Giving Each Offender Appropriate Amount of Punishment xiv. Luna 1. Restorative justice: includes all relevant parties to a crime in a group-decision making process to reach mutually agreeable outcome 2. RJ alternative to utility/retri principles 3. RJ crime not just vs. state, but community and members too 4. Develop law abiding citizens 5. Members of dispute have property interest in process + outcome xv. Wilson 1. Assumes that incapacitation actually ends crimeNOT ALWAYS! 2. Deterrence relies on: a. Tend to repeat offend b. Crims not immediately replaced c. Prisons not schools for crimes 3. Rand Group found barometer for judging if individual will reoffender 4. Three strikes youre out! 5. Flexibility but also give out longer sentences for crim hstories 3. LEGALITY, STATUTORY INTERPRETATION, PROVING CRIMES i. Evidentiary Burdens (23-27) 1. Burden of Pleading a. What is it? i. Burden of raising an issue (aka burden of going forward) b. Who bears it? i. Prosecution bears burden for all elements of offense ii. Defense for (most) defenses c. Why have it? i. Enhance efficiency by making each party responsible for raising issues from which it will gain ii. Enhance fairness by eliminating surprise 2. Burden of Production a. What is it? i. Establishes how much evidence party must present for an issue (or case) to go to the factfinderif not satisfied, issue (and perhaps entire charge) will not go to jury ii. For offense elements, must present enough evidence that some rational factfinder could find proof of guilt BRD (which is NOT the same as saying factfinder would or must do so b. Who bears it? i. Prosecution for elements and defenses that negate elements (e.g., mistake) ii. Defense (usually for affirmative defenses, though sometimes prosecution has burden of introducing evidence to disprove them (non-affirmative defenses may include consent) c. Why have it? i. Reduce surprise ii. Eliminate frivolous claims iii. Ensure that jury decision has minimally sound basis 3. Burden of Persuasion a. What is it?

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i. Ultimate burden of convincing the factfinder to decide in your favor (what people usually mean by burden of proof) b. Who bears it? i. Prosecution must establish all offense elements BRD (this is constitutionally required); also must refute many defenses BRD ii. Defense may bear burden for some defenses (or mitigations) iii. Defense may bear burden for some defenses (or mitigations) 1. NY 25.00: Defendant has burden for all affirmative defenses (must establish by preponderance of evidence) 2. NY 125.20(2), 125.25(1): mitigation from murder to manslaughter is an affirmative defense c. Why have it? i. Ensure that convictions are returned only when jury sufficiently convinced of guilt ii. Want to have uniform standard Presumptions & Inferences 1. Presumptions require jury to find a fact based on proof of another fact 2. Permissive inferences allow, but do not require, jury to do so a. Inferences may be useful in satisfying burden of production + burden of persuasion, as under MPC 1.12(5) 3. Mandatory presumptions are not allowed a. Sandstrom (27): Jury instructions improperly shifted burden to D [innocent till proven guilty] 4. Permissive inferences are allowed, so long as presumed fact is more likely than not to follow from proven fact Legality-What Is It? 1. Not a rule, but principle that supports rules 2. What rules does it generate? a. Constitutional rules i. Prohibition on ex-post facto laws ii. Void for vagueness b. Statutory rules i. Abolition of common-law offenses c. Common-law (interpretive) rules i. Lenity / Strict Construction 3. Allows actor to determine what law prohibits Lenity/Strict Construction 1. When a criminal statute is subject to conflicting reasonable interpretations, the statute (including sentencing provisions thereto) should be interpreted in favor of the defendant 2. The lenity doctrine only comes into play if a statute is ambiguous and it is not ambiguous unless, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended. Fair Import (MPC) 1. The Model Penal Code does not recognize the lenity principle. It requires instead that criminal statutes be construed according to their fair import, and that ambiguities be resolved in a manner that furthers the general purposes [of the Code] and the special purposes of the particular provision involved. Ex-Post Facto: The legislature may not retroactively criminalize what was an innocent act (a killing in self-defense) at the time of the conduct 1. Calder v. Bull Vagueness 1. Vague language may invalidate a statute as unconstitutional

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2. The Due Process Clause forbids the enforcement of any statute that, due to vagueness in language, vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied [its requirements]. (Vagrancy laws) Legality-Why? 1. Fairness/Notice a. Improved deterrence via announcement of rules b. Reduced moral blame if no chance to comply 2. Limit Power of Government a. Ensure criminalization authority rests with legislature b. Limit arbitrary enforcement/Abuse of discretion Legality-Concerns 1. Inflexibility 2. Prevention of appropriate punishment 3. Clear rules may not track blameworthiness 4. Technical Vagueness v. Ambiguity 1. Meanings a. Vague Statute doesnt define anything clearly (enough) b. Ambiguous statute clearly defines something, but its exact scope isnt clear in a particular case 2. Ramifications a. Vague statute must be thrown out entirely b. Ambiguity simply calls for use of interpretive tools Statutory Interpretation 1. Look first to plain language 2. Then use rules of constructionguide to interpreting ambiguous language (p.70) 1. Different language implies a different meaning a. Causing harm + Causing injury 2. A catch-all phrase is limited by the common factor of the items in the list a. Or other categorized by common factor of items in list (i.e. dogs & cats) 3. Expression of one thing excludes other things a. Other things not listed are by implication excluded 4. Special controls the general a. If two statutes apply, more specific has priority 5. Later controls the earlier a. Later date enacted controls 3. Look to other sources: legislative history, other statutes, etc. Legality in Liability vs. Sentencing 1. Imposition of liability allows little discretion and subject to specific rules 2. Sentencing has fewer rules and allows broad discretion Conduct Rules v. Adjudication Rules 1. Objective and simple criteria might be preferred for rules of conduct a. Directed at general public with no special training or background 2. Doctrines of adjudication may be more complex a. Allows maximization of uniformity b. Minimizes abuse of discretion c. High level of specificity Statutes 1. NYPC 1.05 2. NYPC 5.00 3. NYPC 25.00

II. CULPABILITY ELEMENTS: ROLE OF MENTAL STATE 1. CULPABILITY/ELEMENT ANALYSIS i. Objective Elements: Describe a persons acts and the physical environment in which they occur 1. A film of a crime would demonstrate that its objective elements were satisfied ii. Culpability Elements: (In modern codes) seek to capture cognitive states, seek to describe whats happening in a persons head at the moment s/he acts 1. Contrast (explicitly) normative approach to defining culpability, e.g., whether act was malicious 2. Modern codes seek to capture normative approach to defining culpability, whether the act was malicious 3. Modern codes seek to capture normative distinctions using cognitive distinctionssometimes must rely on purely normative assessments iii. Common Law Distinction: Actus Reus (Bad Act) and Mens Rea (Bad Mind) similar to distinction between objective and culpability elements iv. Culpability Elements vs. Objective Elements 1. Culpability elements apply to objective elements, culpability exists (or doesnt) as to some particular facts(s) defined to be objective elements of the offense a. E.g. a person doesnt just behave recklessly but must be reckless as to a particular fact (or risk), such as: Causing death (for homicide) or injury (for assault) or whether property belongs to another person (for theft) 2. Typically, some degree of culpability will be required for each objective element of a crime; different objective elements may have different culpability requirements v. Categories of Objective Elements a. 3 Types of Objective Elements [MPC 1.13(9)] i. Conduct ii. Circumstances iii. Results b. Not every offense will have all 3 Objective Elements! i. Many offenses have no result elements (homicide, assault/battery, property damage are among those that do) c. Categorization of particular element is not always very significant, though it sometimes is vi. Conduct 1. MPC 1.13(5): an action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions a. 1.13(2): act = bodily movement b. 1.13(4): omission = failure to act 2. NYPC 14.00(4): an act or omission and its accompanying mental state a. 15.00(1): act = bodily movement b. 15.00(3): omission = failure to act when theres a legal duty 3. Definitions of Culpability Levels 4. Rules for determining which culpability level is required for each objective element vii. Circumstances 1. MPC: Not defined a. Described in commentary to attempt provision [5.01 cmt. 2 at 301 n.9]: The circumstances of the offense refer to the objective situation that the law requires to exist, in addition to the defendants act or any results that the act may cause. Examples: i. Nighttime in burglary ii. Property of another in theft iii. Dwelling in arson 2. NY: Not defined viii. Result 1. MPC: Not (directly) defined

a. 1.03(4): for jurisdictional purposes, result includes causing death for homicide offense i. Commentary 5.01 (attempt) also notes that results, of course, include death in homicide. ii. 2.03 (defining causation) also describes results: Conduct is the cause of a result when 2. NY: Not defined ix. Circumstances v. Results 1. Example: It is an offense to cause injury to a police officer a. Single result element? b. Or result injury plus circumstance police officer? 2. Note that conduct element here is implied, but not directly stated (conduct can be anything that causes injury) x. Culpability Levels 1. Purpose (or Intent) a. NOT the same as premeditation b. NO distinction in modern codes, as there was at CL, between specific intent and general intent c. Purpose as to Conduct or Result: conscious object to engage in that conduct or cause that result i. Not that likelihood of success is not important; can intend to cause unlikely result d. Purpose as to Circumstances i. MPC: aware of [or hopes or believes in existence of circumstances ii. NY 15.05(1) only defines intent as to conduct or result 2. Knowledge a. Definition, as to Conduct or Circumstances: is aware of nature of conduct or circumstances i. MPC 2.02(7): Need only be aware of high probability prevents willful ignorance ii. NY 15.20(3), (4) have special rules for age of minor, quantity of drugs b. Definition as to result i. MPC: aware that it is practically certain that conduct will cause result ii. NY 15.05(2) only defines knowing as to conduct and circumstances [Why? Does this make sense?] iii. How does knowledge differ from purpose/intent? 3. Recklessness (MPC & NY) a. As to Conduct: Not defined b. As to Circumstances and Results i. Consciously disregards a substantial and unjustifiable risk that element exists or will result from conduct (MPC; cf. NY 15.05(3)) ii. Risk is of such degree that disregard, based on known circumstances, is gross deviation from law-biding standard of conduct 4. Negligence (MPC & NY) a. As to conduct: not defined b. As to circumstances and resultes i. Should be aware of/fails to perceive a substantial and unjustifiable risk that element exists or will result from conduct ii. Risk is of such degree that failure to perceive, based on known circumstances, is gross deviation from reasonable standard of conduct xi. Culpability Levels 1. Purpose / Intent: Affirmative Desire 2. Knowledge: Awareness of fact, high probability or practically certain 3. Recklessness: Awareness of risk, substantial likelihood 4. Negligence: unawareness of risk a reasonable person would/should see

xii. Applying Culpability Terms to Offenses 1. There is not just one level of culp for an entire offense; must determine level of culp for each objective element of the offense 2. Hierarchy of Culpability a. MPC 2.02(5): greater culp satisfies offense that requires less b. NY does not (explicitly) adopt this rule, but seems to recognize it xiii. Concurrence Requirement: 1. Must be temporal concurrence. D must possess the requisite mens rea at the same moment that her voluntary conduct (or omission) causes the social harm (the actus reus). 2. Second, there must be motivational concurrence: The defendants conduct that caused the social harm must have been set into motion or impelled by the thought process that constituted the mens rea of the offense. xiv. Read-In Rules 1. MPC 2.02(4): Stated Culp Requirement applies to all elements unless theres a clear intent to limit scope a. NY 15.15(1) is similar 2. MPC 2.02(3): if no culp stated, do not assume none is required; instead, read in recklessness a. NY 15.15(2): version of 2.02(3)some level of culp should be read in; use level that conduct in question necessarily involves xv. Culpability Summary 1. Various things (mistake, intoxication) may prevent required culp from being present; this simply means that offense is not satisfied not truly defenses, but merely failures of proof, i.e., they relate to the requirements of the offense definition itself 2. Sometimes liability may be imposed without culp (or on reduced culp), and/or culp may be imputed though not present (e.g., intox, felony murder) 3. Culp is now understood as being required for each element, rather than for offense as a whole; different elements may require different levels of culp 4. In modern codes, culp may be required even though not stated 5. Level of culp is significant not only as to question of liability vel non, but as to how much liability 6. One serious issue with culp is how much to make requirements individualized (subjective) or adhere to strict objective rules negligence definition a. Negligence definition b. Manslaughter mitigation 7. Numerous issues in culp, such as objective v. personalized requirements, reflect underlying debates about the purposes of crim law xvi. Statutes 1. NY 15.00-15.15 2. MPC 1.13 3. MPC 2.02 4. MPC 2.05 xvii. Cases 1. People v. Ryczek 2. People v. Clark 2. READING CRIMINAL STATUTES i. NY 150.01: Arson in the 5th Degree (Class A Misdemeanor) 1. A person is guilty of arson in the fifth degree when he or she intentionally damages property of another without consent of the owner by intentionally starting a fire or causing an explosion ii. NY 150.05: Arson in the 4th Degree (Class E Felony) 1. Recklessly damages a building or motor vehicle by intentionall y starting a fire or causing an explosion

a. 150.00(1): Building in addition to its ordinary meaning, includes any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein. Where a building consists of two or more units separately secured or occupied, each unit shall not be deemed a separate building. b. 150.00(2): Motor vehicle includes every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power, except (a) electrically-driven invalid chairs being operated or driven by an invalid, (b) vehicles which run only upon rails or tracks, and (c) snowmobiles as defined in . . . the vehicle and traffic law 2. [I]t is an affirmative defense that no person other than the defendant had a possessory or proprietary interest in the building or motor vehicle iii. NY 150.10: Arson in the 3d Degree (Class C Felony) 1. Intentionally damages a building or motor vehicle by starting a fire or causing an explosion 2. [Recall 150.01: intentionally damages by intentionally starting a fire or causing an explosion.] 3. [I]t is an affirmative defense that a. no person other than the defendant had a possessory or proprietary interest in the building or motor vehicle, or if other persons had such interests, all of them consented to the defendants conduct, and b. the defendants sole intent was to destroy or damage the building or motor vehicle for a lawful and proper purpose, and c. the defendant HAD NO REASONABLE GROUND TO BELIEVE that his conduct might endanger the life or safety of another person or damage another building or motor vehicle iv. NY 150.15: Arson in the 2d Degree (Class B Felony) 1. Intentionally damages a building or motor vehicle by starting a fire, and whe : a. Another person who is not a participant in the crime is present in such building or motor vehicle at the time, and b. The defendant knows that fact OR the circumstances are such as to render the presence of such a person therein a reasonable possibility person or damage another building or motor vehicle v. NY 150.20: Arson in the 1st Degree (Class A-I Felony) 1. Intentionally damages a building or motor vehicle by causing an explosion or a fire and when a. Such explosion or fire i. Is caused by an incendiary device [150.20(2)] propelled, thrown or placed inside or near such building or motor vehicle; or ii. Either (i) causes serious physical injury to another person other than a participant, or 1. 10.00(10): Serious physical injury means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ 2. 10.00(9): Physical injury means impairment of physical condition or substantial pain iii. Was caused with the expectation or receipt of financial advantage or pecuniary profit by the actor; and when b. Another person who is not a participant in the crime is present in such building or motor vehicle at the time; and c. The defendant knows that fact OR THE CIRCUMSTANCES ARE SUCH vi. Statutes 1. NY 120.00-120.60 2. NY 145.00-145.70 3. NY 150-150.20 3. CULPABILITY II: NEGLIGENCE LIABILITY & STRICT LIABILTY i. Objective v. Subjective Negligence

1. Objective Negligence: Uniform Standard; Ignore personal traits of defendant a. Strict liability offenses imposing clear rules of conduct might be seen as a strongly objective negligence standard: violation is per se unreasonable (859) i. So in the case of Garnett, statutory rape is a strict liability offense 2. Subjective Negligence: Judge reasonableness based on whats reasonable to expect of this particular person 3. MPC 2.02(2)(d): judge reasonableness based on reasonable person in the actors situation a. Meant to be partially, though not fully, subjective (856) b. Cf. NY 15.05(4): in the situation (same standard, or no?) ii. Justice Arguments 1. Deterrencehow deter something that one was unaware of? iii. Strict Liability: Generally disfavored in modern codes 1. Ok for bad crimes, like statutory rape 2. Ok for violations (MPC) 3. Undercut moral credibility? 4. CULPABILITY III: MISTAKE i. Kinds of Mistake 1. Exculpatory Mistake, i.e., mistake that negates culpability a. Claim of mistake is nothing other than claim that defendant lacked required culpability b. Objective elements are there but culpability is not 2. Inculpatory Mistake a. Treated as attempts b. Legal Impossibility c. When what is going on in your head does not line up with what is going on in reality d. Culpability is there but objective elements are not 3. Mistake as General Defense a. Commit offense but are unaware that your conduct is criminal because you relied upon an official misstatement of law or because law was not made reasonably available b. Does NOT negate offense element 4. Reckless Mistakes [this is exactly the same thing as recklessness] 5. Negligent (or unreasonable) Mistakes 6. Reasonable Mistakes a. Was reasonably mistaken = was not negligent ii. Lasseter v. State: Read-in reckless as to lack of consent in rape 1. Mistake must be reasonable (non-negligent) iii. Mistake of Fact: Belief/mistake about objective reality (whether an offense element is satisfied): RELEVANT to liability 1. The age-old rule that is still expressed today is that mistake of fact is an excuse iv. Mistake of Law: Belief/Mistake about contents of criminal law (whether a fact is an offense element): NOT RELEVANT to liability 1. Mistake of law is no excuse 2. Personal beliefs about what the penal code does OR DOES NOT cover will not affect that persons liability 3. If you think something is a crime when it is not, even if that crime is not even a crime in the eyes of the law, that does not make you a criminal in the eyes of the law. It is possible to be more moral than the law. v. Transferred Culpability: Mistake that is both exculpatory and inculpatory; negates culpability for one crime, but demonstrates culpability as to some other crime 1. E.g. Life-Saving Necrophilia 2. MPC 2.04(2) (150):

a. Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed. vi. Mistake Summary 1. While culpability is generally required as to the elements of crimes, some culpability is required as to each of those facts that make up the crime. What is NOT required is a level of culpability as to the criminality: to the fact that you are committing a crime. You do NOT need to know that you are committing a crime in order to be held liable for that crime 5. IMPUTATION OF MENTAL STATE: INTOXICATIONException or loophole to the principle that culpability is always required. It is possible to impute culpability, i.e. voluntary intoxication i. Voluntary Intoxication: May be used to negate culpabilitydemonstrate that defendant did not have culpability required by offense [e.g., MPC 2.08(1), NY 15.25] 1. When used for this purpose, no different from mistakes (or anything else) used to show lack of culpability 2. Ind. 35-41-3-5(b) (355) tries to limit use of VI to negate culpability, but was found to violate Indiana constitution in Terry (355-356) a. Recall Alaska Statute on mistake, which similarly limits use of mistakes to negate culp: only reasonable mistakes allowed for this purpose 3. Intoxication may be used as both a defense but also as a sword by the prosecution. It can simultaneously show no culpability but also satisfy a culpability requirement ii. Basis for Liability: Intoxication may also be used to impute culpability, treat element as satisfied even though (usual) demands are not satisfied [MPC 2.08(2), NY 15.05(3)] 1. Recall that recklessness usually requires conscious disregard of risk 2. Unawareness of riskwhat would usually be negligenceis treated as recklessness (i.e., same as conscious disregard when its due to voluntary intoxication) iii. Reasons to Adopt Imputation Rule 1. Deterrence Theory a. Discourage broader set of undesirable behavior b. Adopt clearer rule to enhance notice (and chance of conviction) c. This is an explicitly utilitarian justification 2. Evidentiary Theory a. Imputed element is difficult to prove, and likely to be present where imputation rule is satisfied b. In the Weaver case, odds are that he was reckless, so lets just say that he was 3. Causal Theory a. Defendant caused the absence of the imputed element (by becoming intoxicated) 4. Equivalency Theory a. Satisfying imputation rule is just as serious/wrongful as satisfying imputed element itself iv. Intoxication: Other Options 1. Intoxication is a problem because it creates a problem where retributive and utilitarian principles pull in different directions. How do we resolve this tension? We compromise. i.e. If you kill someone while highly intoxicated, well punish you for reckless homicide. 2. Fixed Mitigation (like Attempt) a. Ensure some, but reduced liability in all cases if use a grading mechanism for inchoate offenses i. Standard mitigation reduction of one grade ii. Where D lacks culpability due to VI, would be liable for offense one grade less than if sober

iii. We could establish a spectrum of punishment. If you murder someone while intoxicated, you will be held guilty for intoxicated murder. iv. May be criticized as rough justiceretributive, blameworthiness 3. Use culpability existing prior to intoxication a. You made a culpable choice to drop LSD. Therefore, that culpable choice will be used as the basis in determining how to punish you b. MPC Rule v. This Rule c. Require relaxation of concurrence rule/requirement? Or of causation rules? 4. Separate offense, e.g. dangerous intoxication a. Writing new criminal statutes to explicitly punish for behavior that is linked to [voluntary intoxication = intoxicant loss of control] b. We have attempted to address this through crimes of endangerment, and also through laws which bans the use of certain drugs c. (Majewski 366) v. Concurrence Requirement: What matters is the intent of the actor at the time that he/she acted 6. CULPABILITY WRAP-UP i. Culpability is important! And generally required for liability 1. Culpability is now understood as being required for each element, rather than for offense as a whole; different elements may require different levels of culpability 2. In modern codes, culpability may be required even though it is not stated a. Often a default rule to read in a certain amount of culpability 3. Various things (mistake, intoxication) may prevent required culpability from being present. This simply means that offense is not satisfied - not truly defenses but merely failures of proof, i.e. they relate to the requirements of the offense definition itself 4. On the other hand, sometimes liability may be imposed without culpability and/or culpability may be imputed though not present ii. Level of culpability is significant not only as to question of liability vel non, but as to the quantitive amount of liability iii. One serious issue with culpability is how much to make requirements individualized (subjective) or rather to adhere to strict objective rules: 1. Should we consider cultural, societal norms, etc. as they apply to an individual, or is there a standard of culpability? 2. Negligence definition - consider the Garnett case. 3. Manslaughter mitigation iv. Numerous issues w/culpability, such as objective v. personalized requirements (see above), reflect underlying debates about the purposes of criminal law 1. Retributive justifications (and deterrence, and perhaps even the legality principle) would not allow for mitigation. The more flexible the standard, the more subjectivity the jury is given in making a decision. This is not appropriate under certain theories of criminal law 7. HOMICIDE I: DEPRAVED INDIFFERENCE MURDER, FELONY MURDER i. Depraved-Indifference (DI) Murder: Finding a defendant culpable at a higher standard than their actions would otherwise dictate. Holding someone more culpable than would normally occur 1. MPC 210.2(1)(b): Homicide committed recklessly under circumstances manifesting extreme indifference to the value of human life. 2. NY 125.25(2): Recklessly causes death under circumstances evincing a depraved indifference to human life 3. How is DI distinct from ordinary recklessness? a. This might kill somebody. I hope it doesnt v. This might kill somebody. I dont care. implies a lack of emotional attachment to ones actions. 4. Does it make sense to equate DI homicides with intentional murder (as MPC and NY both do)?

ii. DI Appropriate: Commonwealth v. Malone + When a specific act is the direct cause of the homicide (i.e. pulling the trigger of a gun that fires a fatal shot to a person) iii. Felony Murder: Imposition of criminal liability upon an actor whose conduct has resulted in homicide during the commission of another (often specified) felony 1. There are all kinds of crimes which exist to which we dont appl y felony murder. White collar crime is one. But for particular felonies (ex. bank robbery), and in the course of events someone is killed (whether purposely or accidentally), that will constitute felony murder a. Enumerated felonies: robbery, burglary, kidnapping, arson, aggravated sexual abuse, etc. 2. In simple terms: Felony + Death = Murder. Normally intent would be required, but not in this case iv. Felony Murder: NY 125.25(3) 1. Person commits or attempts to commit [specified felonies] and, in course of and in furtherance of such crim or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants 2. Enumerated Felonies: robbery, burglary, kidnapping, arson, rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first [or] second degree a. Affirmative defense i. Note: 125.27(1)(a)(vii) does NOT define a felony murder offense (why not?) v. NY 125.25(3): Defense 1. In any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant: a. Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and b. Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and c. Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, [etc.]; and d. Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury e. You must meet every one of these elements to prove an affirmative defense. By NY standards, the burden of proof is on the D to show evidence that fulfills all these elements vi. Felony Murder: MPC 210.2(1)(b) 1. The jury is entitled to find that felony murder is depraved-indifference murder on the sole basis of finding facts that prove a felony and prove a death. This creates an evidentiary presumption. It is not as clear-cut as the NY penal code 2. Culpability is still required, but this is good evidence too 3. Culpability for murder is presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. a. What does this mean? How does it work? b. Why these felonies? Why not others? i. Stated felonies include robbery, rape, arson, burglary, kidnapping, felonious escape. All these crimes have some measure of physical confrontation implicit in the crime. The MPC singles them out because it shows that an offender, when choosing to commit one of these crimes, has some measure of knowledge that someone may be harmed as a result of the act c. Under the MPC (unlike NY) the victim may be your accomplice or a participant in the crime, and you could still be liable for committing a felony murder

vii. Felony Murder Rationales 1. DeterrenceNeed to prevent felonies, and killings occurring during felonies, whether culpability is present or not. We dont care about culpability. We simply want to prevent you from doing these things. 2. Evidentiary Dangerous felonies create inherent risk of death, so offender probably was at least reckless. If you committed arson, we dont need to prove that you intended to kill someone. The very fact that you committed arson implies an acknowledgment that someone might be physically harmed by your behavior. a. But culp is hard to prove, so FM rule makes prosecution easier 3. EquivalencyCumulative culpability for felony and killing a. [Causal explanation doesnt really apply here] b. Historical context in which FM rule arose: at Common Law, all felonies were capital offenses c. Do any of these rationales seem persuasive? d. What are the arguments against FM? Are they persuasive? 8. HOMICIDE II: MANSLAUGHTER i. Manslaughter: The idea of manslaughter implies a sort of provocation. This is where you hear the phrase heat of passion often invoked. You havent had time for those passions to cool and in the spur of the moment, you kill someone a. Common Law wanted to punish more for premeditation. Manslaughter is a sort of immediate crime b. Manslaughter is an unlawful killing, or according to the Model Penal Code, a homicide without malice aforethought on the one hand and without justification or excuse on the other. c. There is a sense that the reaction to the provocation was reasonable, though not in the usual sense (well, reasonable people dont kill!) -- the killing is seen as understandable. 2. Intentional killing committed in sudden heat of passion as the result of adequate provocation is voluntary manslaughter. 3. An unintentional killing that occurs during the commission or attempted commission of an unlawful act may constitute involuntary manslaughter. ii. Voluntary ManslaughterCommon Law (236-238) 1. Defendant responds to provocation while in heat of passion, i.e., before s/he has had time to cool off a. Sense that reaction to provocation was reasonable, though not in usual sense (reasonable people dont kill!) really seen as understandable 2. Objective standard of provocation a. Often, mitigation could only apply in specified situations i. Battery on defendant ii. Mutual combat iii. Injury to a close relative iv. Spouses adultery b. Traditionally, mere words could not suffice. There must be some immediacy between the act and witnessing the act. You must be present and responding to the person who provoked you. Hearing an aftermath summary doesnt prove sufficient provocation. c. Some jurisdictions required provoking incident to occur in defendants presence iii. Voluntary ManslaughterModern Codes 1. MPC 210.3(1)(b) (cf. NY 125.20(2), 125.25(1)(a)): a. Murder mitigated to manslaughter when committed under influence of extreme [mental or] emotional disturbance for which there is reasonable explanation or excuse b. Reasonableness based on person in [actors/defendants] situation under circumstances as he believes them to be

i. Note the same phrase: in (actors/defendants situation). This requires a consideration of a first-person perspective from the offenders POV 2. Broader, more flexible standard than common-law rule a. No specific list of things to be included or excluded b. No specific time limit in fact, disturbance may increase over time c. Test of reasonableness is more individualized (cf. definitions of recklessness and negligence) iv. Homicide Mitigations: Where even though you have committed a murder, we may punish that murder and call it a separate crime, i.e. manslaughter 1. Voluntary Manslaughter (Provocation) v. ManslaughterFeminist Critique 1. Victoria Nourse, Passions Progress, 106 Yale L.J. 1331 (1997), concludes that expanded mitigations have frequently been applied in situations where men kill girlfriends or spouses, sometimes out of jealousy or anger 2. See Jeremy Horder, Provocation & Responsibility: From a feminist perspective the existence of [the] mitigation simply reinforces in the law that which public institutions ought to be seeking to eradicate, namely, the acceptance that there is something natural, inevitable, and hence in some (legal) sense ... forgivable about mens violence against women, and their violence in general. 9. Testable Doctrines i. Depraved-Indifference Murder ii. Felony MurderIf you go out to commit a violent felony, that shows that you are willing to take risks with the lives of others. Like NY, many other states link felony murder to DI murder. There is no direct demonstration of culpability to hold someone liable. If they are committing a felony, and murder ensues therein, the act of committing a felony establishes liability. iii. Voluntary ManslaughterThere is reckless homicide, or involuntary manslaughter, and there is also voluntary manslaughter. It takes some cases that would otherwise be homicide and reduces them based on provocation. Under common law, committing an offense in the heat of passion could be used to reduce a crime to manslaughter. In modern penal codes, a modern, more flexible standard applies. The status of the victim (they had it coming) plays a role in determining whether an offense is homicide or voluntary manslaughter. The perpetrator will then be punished at a lower level. 1. Some people do not agree with the doctrine of voluntary manslaughter because they believe it mitigates situations which should not be mitigated (i.e. the ex-boyfriend who kills his former girlfriend in a jealous rage). Some manslaughters should instead be treated as homicide in order to show certain societal values and unwillingness to allow certain behavior, no matter the notions of provocation or the status of the victim. See the feminist critique of voluntary manslaughter. III. OBJECTIVE ELEMENTS: THE ROLES OF ACTION AND RESULTING HARM 1. THE ACT REQUIREMENT; OMISSION LIABILITY i. There are two courses of action here: (1) mount a legal duty argument, or (2) gather enough evidence to prove that elements of an offense have been met ii. Voluntary Act RequirementTwo Aspects 1. Conduct (whether act or omission) must be voluntary a. Your behavior which supports your criminal liability must be of your own volition. It follows then that culpability is required for conduct. It is generally understood that as to the movements of your own body, some culpability (purpose, knowledge, etc.) is understood b. Voluntariness concerns things that are going on in your mind 2. Liability requires either: a. Affirmative Act, OR b. Satisfaction of rules of omission liability i. This is laid out in NY 15.10. Conduct is defined in 15.00(4), act in 15.00(1), voluntary act in 15.00(2), and omission in 15.00(3). Omission encompasses a duty of performance.

ii. MPC: 2.01(1); its definition of omission (1.13[4]) does not include any mention of a duty of performance. Voluntary is defined in 1.13(3). The following non-voluntary acts include reflexes or convulsions, bodily movements during a state of unconsciousness/sleep, conduct during hypnosis, etc. iii. According to the MPC 2.01(3): Omission liability requires that offense expressly makes omission sufficient, or the duty to act is otherwise imposed by law iii. Voluntary Act (and Omission Liability): NY 1. 15.10: Minimal requirement for criminal liability is performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing 2. 15.00(4): conduct = an act or omission and its accompanying mental state 3. 15.00(1): act = bodily movement 4. 15.00(2): voluntary act = bodily movement performed consciously as result of effort or determination 5. 15.00(3): omission = failure to perform an act as to which a duty of performance is imposed by law iv. Voluntary Act (and Omission Liability): MPC 1. 2.01(1): person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable 2. 1.13(2): act or action = a bodily movement whether voluntary or involuntary 3. 1.13(4): omission = a failure to act 4. 1.13(3) defines voluntary by reference to 2.01(2): the following are not voluntary acts within the meaning of this Section: a a. reflex or convulsion; b. a bodily movement during unconsciousness or sleep; c. conduct during hypnosis or resulting from hypnotic suggestion; d. a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual; 5. 2.01(3): omission liability requires that a. Offense expressly makes omission sufficient, or b. Duty to act is otherwise imposed by law v. Omission Liabililty; Sources of Duty (422-23, Jones (426)) 1. Criminal Law Itself a. Neglect/Endangerment b. Duty to Report Information or Assist Authorities (such as law enforcement officials or firefighters who expressly ask YOU for help) 2. Civil Law a. TortNeed Duty i. Special Relationship (e.g. parent-child)-think back to the Fungwe case. He could be held liable simply because he has a duty as the childs parent. But someone else with more knowledge of that childs danger might not be held liable because they have no duty to the child ii. Assumption of responsibility-ex. a lifeguard iii. Actor created peril-if you create danger, it may be your responsibility to mitigate or erase the danger b. Property Owners-If you own a building, you may be required to install certain measures to mitigate danger (emergency exit plans, proper lighting to discourage crime, repairing door locks) c. Contract-If you are the lifeguard on duty, you may assume a duty of care because it was written into your employment contract

3. You dont necessarily need to know that a duty of care exists. It seems peculiar not to notify someone of their obligations, especially in terms of legality principles and outright fairness vi. Possession As Act 1. Is that an act or a failure to act? Are you actively doing anything? Can be tricky 2. MPC 2.01(4): Possession is an act . . . if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession a. If you find yourself in possession of something unlawful, whether voluntarily obtained or not, knew you had it long enough in order to dispose of it, and make no attempt to rid yourself of that possession, then you will be held liable for the act of possessing that unlawful object. If you are completely unaware that you possessed something, you may not be held liable for that possessed item 3. NY 15.00(2): Voluntary act includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it a. Some argue that possession shouldnt be a crime because it isnt really an act 2. ATTEMPT: INCHOATE OFFENSE: Recognize that attempt is another exception to the norm i. Attempt LiabilityWhy? 1. Enable law enforcement to prevent crimes; gives basis for intervention before harm occurs 2. Attempts exhibit blameworthiness/dangerousness meriting punishment (subjectivist view) 3. Attempts jeopardize protected interests, exhibit disregard for law, disrupt public order (objectivist view) ii. Attempt LiabilityWhy Limit? 1. Could be a waste of resources to punish someone who never intends on following through with some felonious thought 2. We want to limit the scope of the criminalization to things that are truly harmful or important. Thoughts on their own do not cause any damage 3. We value freedom and autonomy, and want to preserve liberty. Sometimes that extends to thoughts/fantasies which could be wrongful in nature or are worrisome, but where the source of those thoughts will not act on those thoughts 4. Prevention of punishment of innocent, but seemingly suspicious, conduct (avoid false positives and room for doubt as to whether a person would actually commit a crime) 5. Maintain possibility of renunciation (locus penitentiae) 6. Should we have general attempt rule, or more specific inchoate crimes (or both)? a. Currently we have one standard provision of attempt b. You could also write statutes penalizing particular crimes (i.e. possession a certain quantity of illicit substances, driving under the influence) iii. Attempt vs. Preparation 1. At some point in chain of events from [thoughts of committing offensecompletion] actor conduct becomes criminal 2. Point that conduct becomes criminal, mere preparation criminal attempt iv. Attempt 1. Even when all elements of attempt are satisfied, an actor may escape liability if he or she satisfies the rules for renouncing the attempt 2. Absent renunciation, failure to complete an offense only avoids liability for the full offense; it does not relieve actor from liability for attempt v. AttemptConduct Tests 1. Note that conduct test is not always an issue: completed attempts (e.g., shoot-and-miss attempts; you have shown that you were fully willing and intent on committing a crime, but your own error prevented that crime from taking place) satisfy any conduct test 2. Measuring distance from completed crime (how close is conduct to crime itself?) a. Last act

b. Proximity i. Prevalent at common law, proximity doctrine, the dangerous proximity doctrine, the indispensable-element approach, and the probable-desistance test ii. Measure minimum attempt conduct in terms of actors closeness (or proximity) to commission of substantive offense iii. Preparation will not ripen into attempt until crime is about to occur iv. Proximity Tests said to reflect objectivist view of criminality v. Gravamen of an offense is its harm or evil, tangible or intangible, and only this merits criminal sanction vi. One of the most famous and controversial applications of this standard occurred in People v. Rizzo, in which four armed men drove around looking for V, whom they expected would be withdrawing a large sum of money from the bank. They entered various buildings looking for their victim. Suspicious, two police officers placed the men under surveillance. Finally, the suspects were arrested when one of them entered another building. V was not present where the arrest occurred. With apparent embarrassment, the court overturned the conviction. While commending [t]he police of the city New York [for their] excellent work in this case by preventing the commission of a serious crime, and expressing their great satisfaction to realize that we have such wide-awake guardians of our peace, the court concluded that in the absence of a victim, the armed suspects were not dangerously close to success. c. Indispensable element i. In determining proximity, some courts emphasize[] any indispensable aspect of the criminal endeavor over which the actor has not yet acquired control.115 For example, according to this standard, an actor who does not yet possess a necessary instrumentality for the crime, e.g., a gun for a murder or the equipment needed to manufacture illegal drugs, has not yet crossed the line from preparation to perpetration; and an offense that requires action by an innocent person cannot be attempted until such action is completed 1. The presence or absence of an indispensable element often says little regarding the actors culpability, the firmness of her intentions, or the degree to which prior conduct may have disturbed the publics repose. d. Unequivocality / Res Ipsa / Manifest Criminality i. Unequivocality test, also known as Res Ipsa ii. Focuses not on how close actor actually comes to committing the substantive offense, but rather on whether the conduct offers clear evidence of the actors criminal intent iii. Attempt liability requires proof of the actors culpability 1. Res Ipsa requires conduct test goes furtherconduct provide proof of culpability iv. Manifest Criminality: Atempts punishable not because they come close to completing the offense, but rather because they create anxiety and disruption in society by openly displaying actors disregard for law and interests it protects e. Probable Desistence i. The probable desistance test, centers on how far the defendant has already proceeded. Specifically, a court will find an attempt when, in the ordinary course of events, without interruption from an external source, the actor reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit the crime. 3. Measuring distance toward completed crime (how much has been done already?): substantial step (MPC) 4. NY tends to effect ( 110.00): what kind of test? vi. AttemptCulpability 1. Basic idea: attempt MUST mean that you trying to do something, so it must mean that youre attempting to reach a certain result 2. Recall three categories of objective elements

a. Conduct b. Circumstances c. Results 3. For purposes of defining culpability terms, distinctions between these categories usually dont matter 4. Categories are relevant when determining culpability rules for attempt, which apply differently to different categories (in particular, circumstances v. results) a. Conduct is always purpose b. Circumstances always requires culpability c. MPC 5.01(1)(c): In regard to circumstances: whatever the crime requires, that is what the attempt requires d. The Results category is trickiest 5. Colorado is beautifully simple in its attempt provision: To determine attempt, look to the offense elements and the culpability required for those elements. Did your attempt satisfy those elements? If yes, attempt liability a.

vii. Attempt Culpability as to Result (NY) 1. If core of offense requires a result, attempt liability is possible only if crime requires intent as to result a. It is NOT possible to attempt: i. Depraved-indifference murder ii. 2d-degree assault under 120.05(3), which requires no intent to injure

2. BUT for result elements outside core, such as aggravating factors, attempt liability is possible even if less culpability (or no culpability) is required as to result a. It IS possible to attempt: i. 1st-degree robbery [160.15(1)] without intent to cause serious physical injury (where robbery fails, but injury occurs) ii. 1st-degree kidnapping [135.25(3)] without intent to cause death (where kidnapping fails, but death occurs) b. Elements outside the core can require any culpability level, even as to the result. Core elements must require specific intent as to any result. [Cahill does not like this structure] 3. Attempt: Kidnapping a. A person is guilty of kidnapping in the second degree when he abducts another person [core of offense]. b. A person is guilty of kidnapping in the first degree when he abducts another person [core of offense] and when: i. His intent is to compel a third person to pay or deliver money or property as ransom, or to engage in other particular conduct, or to refrain from engaging in particular conduct; or ii. He restrains the person abducted for a period of more than twelve hours with intent to [injure / sexually abuse / commit felony / terrorize / interfere with government function]; or iii. The person abducted dies [aggravation (not core)] during the abduction or before he is able to return or to be returned to safety.

viii. AttemptOther Aspects (NY) 1. Attempt IS possible even if offense imposes strict liability as to conduct (or circumstance) a. Can attempt 2d-degree rape (i.e., statutory rape) under 130.30(1) b. Can attempt to possess contraband if there is actual possession, such as possession of gun that doesnt work (note: defendant believed it did work) 2. Attempt is NOT possible where offense itself involves inchoate conduct (e.g., cant attempt to operate a vehicle under the influence operating already includes attempts to drive) ix. Attempt: Renunciation [MPC 5.01(4); cf. NY 40.10(3), (5)] 1. The MPC made a choice not to punish attempt based on proximity to the crime, but rather what steps you have taken towards committing that crime. The MPC will punish earlier but will also give the opportunity to mount a defense of renunciation. Perhaps someone who is too close to the moment of completing an offense has lost their opportunity to renounce a crime 2. MPC 5.01(4): [I]t is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose

a. NY clearer about requiring actual prevention 3. Not voluntary if motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actors course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose a. NY refers to belief that circumstances exist 4. Not complete if motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim a. NY: another time or another victim or another but similar objective 5. It is NOT renunciation if youre waiting for a better time to commit the crime or if you are concerned about being caught a. You only get a defense if you have a genuine change of heart about committing the offense b. The MPC and the NY Penal Code are largely the same in their renunciation rules c. Note that you cannot renounce completed crimes; only attempt x. U.S. v. Mandujano: Federal court case interprets the federal meaning of attempt as a substantial step toward commission of the crime. It chooses to adopt the legal standard set by the MPC 1. Whether Mandujano was correct in adopting the substantial step test in determining attempt was a matter of statutory interpretation, whether right or wrong xi. RenunciationJackson Case: Circumstances which might lead us to assume that renunciation is not voluntary must not be present or apparent at the inception of the actors course of conduct. Background risks (Well, criminals often go to prison so perhaps I should reconsider the course of my actions) will not constitute an argument aimed at showing that an actor did not voluntarily renounce his behavior. Seeing FBI agents milling around the bank and then deciding not to go through the robbery will not constitute voluntary behavior as those FBI agents were not present at the inception of the actors course of conduct. xii. Attempt Catastrophe: What kind of element is the risk of catastrophe? Is it a result element or a circumstance element? If it is circumstance, then all that is needed for culpability is recklessness. BUT if it is a result, then the Scatenas could not be found guilty of attempting to risk catastrophe. In this case, you could argue that the risk of catastrophe was a direct result of the Scatenas conduct. It is possible that people were safe, they did something, and a causal result people were no longer safe. If this is indeed a result, then one could not be found guilty of attempting to risk a catastrophe because what is needed for attempt is a purpose as to that result. You must have that as your primary objective (risking the quality of the water supply). The evidence shows that the Scatenas acted recklessly and negligently but did not purposefully act with the end objective being the thrill of risking a catastrophe 1. Elements matter xiii. Culpability & Attempt: The MPC standard of attempt elevates the culpability requirement for offenses. Think about how the attempt provision fits into the culpability required normally for the offense. Purpose is always required for attempt, whether the offense attempted might simply require knowledge or recklessness. Think of the problems above. You must have PURPOSE in attempting to commit a reckless homicide, and that would be a very difficult argument to sustain xiv. Attempt & DI Murder: Cannot intentionally attempt a reckless homicide (or DI murder) 3. IMPOSSIBLE ATTEMPTS i. Factual v. Legal Impossibility 1. Factual impossibility examples (per Rollino (310)) a. Picking an empty pocket; stealing from an empty safe b. Shooting an empty bed, or with an unloaded gun 2. Legal impossibility examples (per Rollino (310)) a. Accepting goods believed to be stolen b. Buying something believed to be an illegal drug c. Offering bribe to someone believed to be a juror d. Shooting a deer believed to be alive

3. Problem: Distinction Makes No Sense! This distinction is nonsensical because there is too much interlap between the two. One could just as easily be the other. But all of these are attempts. You may try to distinguish further, but they are all attempts nonetheless. You could try to call them impossible attempts, but any attempt could be characterized as an impossible attempt because the intended result never took place. You wanted something to happen, and that thing did not occur a. Hard to find basis for categorizing one way or the other b. Even harder to find principled reason justifying such a distinction ii. Factual v. Legal ImpossibilityReal Distinction 1. Beliefs about real-world facts are relevant to determining liability 2. Beliefs about the content of the criminal law are irrelevant 3. Attempted crime v. imaginary crime 4. Recall (from discussion of exculpatory mistakes) that: a. Beliefs about real-world facts are relevant to liability b. Beliefs about the content of the criminal law are irrelevant 5. Both of these are equally true of inculpatory mistakes a. Mistaken beliefs about ones situation can lead to (attempt) liability. We care about these whether they are exculpatory or inculpatory b. Mistaken beliefs about what the law prohibits are irrelevant. Think of imaginary crimes. Just because you think something is a crime does not make that situation/action/behavior a legal crime that is punishable by a penal code iii. Applying Attempt & Impossibility 1. Statutory rape is based on absolute liability. There is an age of consent, and if you have sexual relations with someone over that age, you have committed no crime. If, however, that person was under the age of consent (whether or not you mistakenly but reasonably believe that person was of age), you are still strictly liable for the crime 2. However, if the state does not require strict liability but merely negligence or recklessness, you have not necessarily committed the crime. It may be an exculpatory mistake if your mistake is reasonable. In the context of mistake, you must always consider What culpability did you have? 3. What about if you believe you are committing statutory rape but in fact are having sex with someone who is actually of age? What if you are committing an impossible factual crime, but in your mind you are indeed breaking the law? This is a mistake that is inculpatory as you are fulfilling an element of the crime (culpability). It shows that you are willing and interested in violating the law, and have therefore committed an attempt regardless of possibility 4. What about someone who has misinterpreted the law? What if the age of consent is actually 16 but the offender believes it is 14, and then has sex with someone he/she knows to be 15 years old? Mistake of law does not exculpate criminality. Even though he has misinterpreted (whether reasonable or not) the age of consent, he will still be held liable a. How about when the lawful age of consent is 16, a perpetrator believes that it is 18, and then has sex with a 17 year old? Is he guilty of attempted statutory rape even though legally he has done nothing wrong? In his mind, though he has mistakenly interpreted the age of consent, he knowingly attempts to commit a crime that is, by law, not a crime at all. Can his mens rea and misperception trump the material elements necessary to fulfill the statutory offense? It doesnt matter. He will not be held liable simply because he has violated his own moral code.

4. Causation and Resulting Harm: Two kinds of causation 1. But-for (factual) cause (262-263) a. Should sufficient cause be required instead? b. Think of the Summers v. Tice case in Torts. Either A OR B caused the damage, though it could not be proven which party directly caused the injury c. In criminal law, a but-for cause is essential to establish criminal liability d. This is more about cause and effect. 2. Proximate (legal) cause: relevant factors (263-264) a. Extent of actors contribution to result b. Foreseeability c. Intent to cause result d. Intervening (voluntary) acts (265) ii. Causation: MPC 2.03 (259-60) 1. 2.03(1): but-for causation required 2. 2.03(2)(b), (3)(b): Proximate Causeresult may be too remote or accidental to have a just bearing on liability a. Note odd way MPC inserts this rule; contract provision on (251-52) 3. 2.03(2)(a), (3)(a) deal with transferred intentimputation rule to align culpability (harm intended/risked) with harm actually caused iii. Causation: NY 1. No causation provision! 2. Issue still arises, however: must decide what it means to cause death for homicide 3. Basic rules similar, though less concern with intervening acts (i.e. can have liability even with intervening act) 4. NY also addresses transferred-intent issue via offense definitions a. e.g., 125.25(1) (with intent to cause death of another person, he causes death of such person or of a third person) iv. Conduct Rules: Review 1. Rules demand difficult (arbitrary) line-drawing a. How do these rules comport with desire for effective notice, and with legality principle? 2. Rules not purely objective but normative, i.e., they demand not just observation, but evaluation a. Conduct, as well as culpability, bears on blameworthiness v. Govan 1. Clearly this is a but for causation cause. If he had not shot her, she would not have been rendered a quadriplegic and wouldnt have contracted pneumonia and therefore wouldnt have died. But is it proximate cause? Was her action a contributing factor? Could it have broken the chain of causation?

2. Could you say Govan should have foreseen that when he shot at Sharon, it was foreseeable that she would have been struck and injured so as to cause her death. Whether her death was immediate or far-removed in time is irrelevant. He should have foreseen that shooting his gun at a person could cause the death of that person, no matter when or how. 3. We tend to think that human actions affect the chain of causation more than human omissions 4. Why distinguish between people who shoot and hit, and those who shoot and miss? Completion v. attempt. Why not just collapse the attempt and completed crime into one offense? a. The culpability is the same for both cases; is it just a question of aim and fulfilling the material offenses of homicide (death)? Youre still just as bad and dangerous as the person who completes the murder, but there is a powerful intuition that trying to kill someone and failing to do so is different than the actor who does kill? b. There is a tension here, even for retributivists, that a completed offense is morally worse than an attempt at the same offense. Many people struggle mightily to rationalize the distinction. Even if we agree that offenders should be punished according to what they deserve, there is an uneasiness regarding these justifications and attempt c. A good summary: The MPC punishes attempt equally until you get to the most serious crimes. The NY Code does the opposite: punishes attempt less until the most serious offense is attempted. Then it punishes attempt equally. vi. Conduct Review: 1. Conduct rules are difficult. They often demand that arbitrary lines be drawn between preparation v. attempt (what is a substantial step?), attempt v. completion (see the hit-and-miss discussion above), etc. It may often be difficult to establish when you have committed a crime 2. How do these conduct rules comport w/ desire for effective notice and with the legality principle? 3. Rules are not purely objective, but also normative. They demand not just observation, but also evaluation. There is a lot of case-by-case moral judgment 4. Conduct, as well as culpability, is based on the idea of blameworthiness IV. GROUP CRIMINALITY 1. CONSPIRACY i. ConspiracyPurposes/Bases 1. Why do we have conspiracy offenses? a. Inchoate offense v. independent harm: We want to catch a bunch of people for scheming to do something terrible before they commit that something 2. Procedural Benefits a. Hearsay evidence (a statement that some other person has made out of court, which are normally not admissible in a criminal court) b. Venue you can prosecute in several different places (see, e.g. MPC 5.03(4), NY 105.25) c. May expand statute of limitation d. May expand scope of liability 3. Possible concerns with allowing conspiracy liability? ii. ConspiracyConduct: Can be based on much less conduct than other forms of liability. We dont need to consider substantial steps. All that is needed is an overt act, and a agreement between two or more people 1. Agreement: Bilateral v. Unilateral a. Under modern criminal codes, a unilateral agreement is all that is required. It permits liability as long as the actor agrees with another person. In this understanding, a person can be held liable for conspiring with an undercover cop, even if that cop does not intend on committing the crime b. Under a bilateral agreement, the conspirator could not be held liable for conspiring w/ an undercover cop because that cop must actually be agreeing, not simply pretending to agree 2. Overt act (MPC 5.03(5), NY 105.20) a. Note: only one overt act is required; can be by any member of conspiracy

iii. Conspiracy: Culpability 1. MPC: with the purpose of promoting or facilitating its commission he agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime a. Commentary says provision is meant to require purpose as to conduct and results, but no decision made about culpability as to circumstances 2. NY: with intent that conduct constituting a [category of crime] be performed a. Seems to relax intent/purpose requirement for non-conduct elements b. The agreement must usually be verbalized or externalized in some fashion c. Conspiracies can be vast networks of people, which can complicate the agreement requirement. Imagine, for example, a drug cartel (chain conspiracy): i. A Distributor might never interact with a Dealer. How could they possibly agree? But it doesnt mean that it isnt a conspiracy as long as they all recognize the need for all these contributing parties to work together in order to run a drug trade d. The Wheel Conspiracy i. Imagine a network of dealers who all answer to one drug boss. Those dealers may not interact w/each other, but if they all understand their roles in the scheme of the greater organization, they could be said to be in a conspiracy e. The takeaway is that it can be difficult to understand the levels of agreement between various networks of conspirators. This is why feds often get involved in these kinds of cases, for they have the time and resources to investigate these complicated conspiracies. As opposed to many state level offenses, conspirators are often suspected to be criminals, but evidence must be found to prove that they are indeed engaging in criminal activity

iv. Conspiracy: Duration 1. Important to distinguish two different things: 2. Abandonment / withdrawal: After abandoning conspiracy, that actor not liable for subsequent completed crimes (but still potentially liable for conspiracy) 3. Renunciation: After renouncing conspiracy, no longer liable for conspiracy itself (as with renunciation of attempt)

v. Abandonment vs. Renunciation 1. MPC 5.03(7)(c) if an individual abandons the agreement, the 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 the existence of the conspiracy and of his participation therein 2. MPC 5.03(6) (see also NY 40.10(4)): It is an affirmative defense that the actor thwarted the success of the conspiracy [NY: prevented the commission] under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. a. Even if you tell police, you may still be on the hook and be held liable for conspiracy unless you renounce. To renounce, you must prevent the commission (thwart the success) of that conspired crime. It is designed to allow actors to opt out of a conspiracy in a very effective and proactive way (by facilitating law enforcement to stop the crime from occurring) vi. Abdel Rahman 1. At trial Rahman tried to show that he was not guilty of treason based on a constitutional right that in order to be guilty of treason you must have at least two witnesses to corroborate the evidence a. The U.S. government responded, saying that they were not going to try him for treason but rather for seditious conspiracy to overthrow the government. At trial, Rahman was sentenced to a life term 2. Remember that little conduct is required for conspiracy. As long as Rahman agrees (or even condones) the actions of his followers, and an overt act then takes place, he may be found guilty of conspiracy 3. It is critically important in cases such as these that criminal defense attorneys advocate for the First Amendment rights of their clients, in part to check the U.S. Government from over-exerting their power as prosecutors 2. IMPUTATION OF ANOTHERS CONDUCT: COMPLICITY (FACILITATION) i. Complicity v. Conspiracy 1. Complicity and conspiracy are not the same offense. However, people who conspire together are often complicit in a crime. But the theories are dissimilar 2. Complicity is another rule of the imputation doctrine. Think of attempt, think of felony murder. Here we are also imputing something: not culpability, but rather the objective element a. Complicity is very different in concept than conspiracy. Accomplices aid in a crime; the result is that they may be treated as if they committed the offense (held to the same level of liability as the principal) b. A co-conspirator is only an accomplice if s/he does something to help. If you agree to a crime but you are a lazy co-conspirator (a criminal couch potato!), you are not an accomplice. You must take some sort of substantial step towards providing assistance to the principal c. On the other hand, an accomplice is only a co-conspirator if s/he has joined in agreement. Ex. you stumble across a crime in process, and decide spur of the moment to obstruct law enforcement from catching the criminals, you are an accomplice (you aid in the completion of the crime) but you are not a conspirator. You did not agree with the original actors = no conspiracy i. Complicity = imputation rule; Conspiracy = distinct (inchoate) offense ii. Coconspirator is only an accomplice if s/he does something to help iii. Accomplice is only a coconspirator if s/he has joined agreement 3. Complicity is a way of guaranteeing equal convictions for the accomplice and principal a. NY Code has a facilitation element to its definition of the culpability necessary to establish complicity 4. Note: Federal Pinkerton rule (not followed by MPC or NY) does hold coconspirators liable as accomplices for any offense in furtherance of conspiracy, making conspiracy and complicity largely overlap ii. Culpability v. Offense

iii.

iv.

v.

vi.

vii.

1. What is the culpability to aid, and the culpability as to the offense? 2. NY Code has a facilitation element to its definition of the culpability necessary to establish complicity a. NY is less clear, but it is possible that incompetent aid can count as being complicit in a crime. The incompetent look-out will be found liable for robbery, even if he stationed himself two blocks away w/ an obstructed view Conduct: Attempting to Aid (Ineffectual Accomplice) 1. How much help is enough? What if help isnt helpful? 2. MPC 2.06(3)(a)(ii): complicity applies if one aids or agrees or attempts to aid 3. NY less clear, but possible that incompetent aid can count (Rivera (1st Dept 1999)) Conduct: Aiding an Attempt (Ineffectual Principal) 1. What if person aids a crime that doesnt happen? a. MPC i. 2.06(1) says crime must be committed; 2.06(7) requires proof of commission of offense ii. But, per 5.01(3), may be liable for attempt for trying to aid what would be an offense if committed; in fact, would-be accomplice liable for attempt although crime is not committed or attempted by other person b. NY i. 20.00 discusses liability when one person engages in conduct which constitutes an offense ii. NY cases make clear that one can be an accomplice to an attempt (i.e., attempt also counts as an offense) Culpability: Rules 1. As a general matter, it is important to understand the distinction between intending to help something and intending for a crime to occur. a. Distinguish culpability as to aiding from culpability as to offense 2. Can purposefully/knowingly aid without having purpose or knowledge as to the offense, e.g. can be an accomplice to reckless/negligent homicide a. Ex. a person who gives car keys to a drunk driver b. Participating in a drag race. You are only (knowingly) intending to participate in a drag race; if the driver loses control of the vehicle and kills somebody, you are not liable for homicide. You were only intending to engage in drag racing, not in the killing of a person. 3. NY 20.00: acting with mental culpability required for commision [of offense], he intentionally aids a. As to aiding (conduct): Intent/Purpose required b. As to result: whatever culp offense requires 4. MPC 2.06 a. As to Aiding: Purpose (2.06(3)(a)) b. As to Result: whatever culp offense requires (2.06(4)) c. As to circumstance: ? (commentary); should be whatever offense requires Facilitation (a whole separate crime, according to NY 115.00) 1. Culpability: need not intend to aid; need only believe it probable one is aiding 2. Conduct: Must in fact aid a. Because of conduct rules, facilitation does not always include complicity can be accomplice but not facilitator if: i. Offense doesnt occur ii. Conduct doesnt in fact aid Case of Cardinal Bernard Law 1. As Cardinal Law is moving around one of his priests to cover up past crimes, does that make him both an accessory after the fact (moving him away from parishes which have accused one of his

priests of child abuse) as well as an accomplice (he aided in the commission of these crimes by placing Geoghan in close proximity to children) 2. Why didnt Cardinal Law simply move him to positions which removed him from those situations? Why didnt he assign a role that involved interaction only with adults? 3. How much culpability must Cardinal Law have? Must he intend that Geoghan is going to molest boys? Is he held to a different level of culpability? 4. What if we applied NYs definition of complicity? Was Cardinal Law intending to help Geoghan commit these crimes? Was he simply (passively) permitting Geoghan to commit crimes? Did he intend to help Geoghan avoid criminal charges by moving him around and writing letters saying that it would be a matter of the church? 5. Would a jury have convicted Law? Boston residents who are strongly Catholic? Would they have found Law guilty of complicity? viii. Bib tries to help (383) 1. Muscle: obviously guilty of statutory rape. He could also be charged w/felony murder, but it seems like he brought his gun w/ the intention of protecting himself against John, so he could probably be found liable for first-degree murder 2. Bib: Even though hes an ineffective look-out, he attempted to affirmatively help by sounding his horn. That is enough to find him liable under both the MPC and the NY Code. It would not suffice his common law a. What if Bib stands lookout w/o Muscle being aware? i. This also would not suffice at common law, but would suffice as an attempt to aid. That is still an attempt to help 3. Conduct a. B has aided by standing lookout b. Has also attempted to aid by sounding horn (attempt suffices for MPC [and NY], but would not suffice at common law) c. This also would not suffice at common law, but would suffice as an attempt to aid i. Under common law: if the principal was liable for nothing, then the accomplice was liable for nothing. The law couldnt reach someone if the principal died, for example d. There may be settings where the principal is liable for one crime, and the accomplice is liable for the other (whether that is a higher/lower crime) 4. Culpability a. B probably has requisite culpability for complicity as to sexual assault b. But probably doesnt have culp for murder (though perhaps negligent or reckless homicide?) ix. Hypo: Call-Girl Phone Service (p. 343) 1. Not a conspiracy. There is an overt act but no agreement between Lauria and his employees. Agreements must be externalized in some way 2. What about complicity? a. If this took place in NY, you could possibly bring a facilitation charge. You have awareness that criminal conduct is taking place and that you are providing some support for those crimes, you may be liable for facilitation b. Complicity: no obvious intent to aid. Lauria may not be an accomplice x. Hypo: Wrong Place, Wrong Race (p. 395) 1. Can Mondello be liable for conspiracy? a. Overt Act: Hawkins dies at the hands of one of the mob b. Agreement: He and his group threaten to hurt others if they ever come back. But have they entered into a concrete agreement? 2. Is Mondello an accomplice for having gathered the crowd? a. He might be liable for aiding or gathering the crowd in the first place. But he didnt know that Fama had a gun. So he probably would not be an accomplice to homicide, but perhaps an

accomplice to something short of death (like assault, as he was aware of the prospect of violence). He could be found liable for aiding/supporting b. His liability would track his culpability xi. Hypo: Helping Lincolns Assassin (p. 396) 1. This stresses the common law difference from modern penal codes 2. He could be treated as an accessory after the fact, but now we would no longer view things that way xii. Hypo: Cheering on Rapists (p. 397) 1. Cheering rapists could be a form of aid. But they entered into no prior agreement before the act, so conspiracy would not fly 2. Encouragement can be a form of help. They could be held liable as accomplices and would be convicted of rape 3. If there were a good Samaritan law, then a bystander who sat by and did nothing (but did not encourage) would be liable. But otherwise, no. S/he may be despicable, but owes no duty to the woman xiii. Hypo: Murder by Cop? (p. 397) 1. Did he intend for Murdock to die? Could he be liable for reckless homicide? Did he create a reckless situation? Is he merely negligent? 2. This is not garden-variety complicity. Bailey may have been consciously aware that he was creating a reckless situation, or at least that the police would arrest Murdock. But did he foresee that Murdock would be killed by the police? 3. Youre an accomplice to anothers crime if they kill a crime. If the police kill someone by returning fire (which they are allowed to do), then they have committed no crime, and therefore Bailey has committed no crime. If they are guilty of nothing, then how can Bailey be guilty? a. A person is an accomplice to another in the commission of an offense. No offense, no liability? b. Maybe he is an accomplice to the fact that Murdock that shot the police. But not as to Murdocks death c. This hypo is an example of MPC 2.06(2)(a): causing an innocents death. If he was using an unwitting pawn (the police) as the agent of his own criminal plan, and he intended to kill Murdock, then he might be held liable of homicide d. At the very least he might be liable for negligent homicide: a crime that he risks xiv. Complicity Recap 1. Complicity is another example of an imputation rule: treats defendant as if s/he satisfied an element s/he did not satisfy in fact a. Here the rule imputes another persons conduct i. Other rules (intoxication, felony murder) impute culpability b. Principals conduct is imputed to accomplice because: i. Accomplice aids that conduct ii. Accomplice has purpose/intent to aid that conduct iii. BUT accomplice need not have intent as to other elements of offense (circumstances, results); only needs whatever culp the offense requires iv. Contrast facilitation, which requires only knowledge/belief that one is aiding anothers conduct 3. CORPORATE CRIMINALITY i. In order to find a corporation liable, the acts and culpability of its employees are imputed ii. It is sort of like complicity in that there is a principal, whose actions are then imputed onto the corporation iii. Corporate liability: MPC 2.07 (1 of 3) 1. (1)(a), (3)(a)

iv.

v.

vi.

vii.

a. The conduct doesnt have to be higher management or some upper-level CEO. It is simply conduct by an agent acting on the corporations behalf. Broad range of criminal activity. Conduct by agent (see (4)(b)) acting in corps behalf within scope of employment (unless offense designates responsible agents), AND b. Offense is a violation, or statute outside Code expressing clear purpose to hold corporations liable (per (2), such purpose is to be assumed for strict-liability offenses) i. Compare NY 20.20(2)(c) 2. (1)(b), (3)(b): failure to perform specified duty a. Compare NY 20.20(2)(a) Corporate liability: MPC 2.07 (2 of 3) 1. (1)(c): BOD or high managerial agent (see (4)(c)), can be found liable if they are acting on the corp.s behalf and authorize, request, command, perform, or reckless tolerate an offense. These are all affirmative actions acting in corps behalf and within scope of employment a. The scope of this liability is much broader. It may support liability for any crime. If you want to try a company for fraud, this is the statute you must argue 2. Compare NY 20.20(2)(b) 3. Unlike (1)(a) and (1)(b), this subsection may support liability for any crime Corporate liability: MPC 2.07 (3 of 3) 1. 2.07(5) a. Defense to (1)(a) violations where responsible high managerial agent exercised due diligence in policing the actions of its employees and attempting to prevent any criminal behavior b. Burden of persuasion on defendant 2. 2.07(6): person who commits offense on corps behalf, or agent who fails to satisfy duty, is personally liable for offense. Both you and the corporation may be held liable for the offense a. Compare NY 20.25 3. The complicated issue is: Should we punish corporate criminality at all? Shouldnt we just punish the individual employees who were responsible for the criminal activity? Corporation v. Individuals Within the Corp. Case of Ford Motor Company 1. As a matter of culpability, you might say that Ford was aware of the substantial risk that someone who drove a Pinto would die a. But is the incremental risk of driving a Pinto enough to establish culpability? 2. In order to convict Ford, you must show that the co. satisfies the rules for causation. You must prove that Ford caused the deaths. a. Just because they made an unsafe car, does that make them causally liable? Could Ford therefore never be guilty of homicide because, no matter what death trap you put on the market, they were not the proximate cause? 3. There are certainly situations in which you could say that Ford is the but for cause of the accident. But for the design errors, the Pinto would not have caught fire. Duggar was the cause of the collision, but not of the ensuing explosion a. You would say that the cause of death was not the driver, but an isolated risk posed by Ford. If you remove that risk, the death wouldnt have happened. That is the argument you would have to make as a prosecutor against Ford in order to find the company causally responsible 4. Fords primary argument would be: NO CAUSATION. Too many intervening actors 5. Lets assume there was a low-impact collision in which no car would have caused a fire, but the Pinto exploded regardless. Would they still be held liable for homicide? a. You would argue that they had knowledge that the Pinto design would lead to deaths. A journalist reported that they had made calculations that 180 fiery deaths would ensue. Thats statistical knowledge (general), but not specific knowledge. Is that enough? Case of Ford Pinto, Contd 1. How do you punish a corporation?

a. You could dissolve the company, but would that be fair to the shareholders and lower-level employees (e.g. line operators) who had nothing to do w/the decisions to put the Pinto on the market? Or should the shareholders be accountable for the companys business practices? 2. Punishing corporate criminality is similar to a deterrence model - we want to incentivize companies to manufacture safe products and protect its consumers 3. If we think that Ford ought to pay a lot of money as recompense, how do we determine that monetary amount? Should we allow a jury to decide the payout? 4. One option is to look at a companys profits over x number of years and calibrate that amount into a sanction. Ford is allowed to continue operations, but for a certain number of years any profit generated goes to the government. Anything over the profit margin goes to Ford (to incentivize the company to remain competitive in the market) 5. There are a couple of concerns w/corporate criminality: a. It is difficult to determine how a corp. ought to be punished b. Corporate criminality could impede deterrence because it punishes a company, not individuals within that company. It does not hold specific individuals accountable for their actions. If you focus on the institution, perhaps you are not incentivizing individuals sufficiently for personal accountability and practicing good business ethics. 6. Some people argue that civil cases are the better forum for these kinds of cases, because the penalties are often higher and the burden of proof on the P is often lower than in criminal courts. 7. Some people have moral issues w/companies that they perceive to be evil (think of people who dislike tobacco companies, or BP in the wake of the BP Gulf Spill). But this is not often enough to hold a corporate criminally liable (just because you have a personal/moral beef doesnt equate a criminal charge) 8. Maybe holding trial and letting evidence be publicly known is punishment enough (bad PR, may lead many people to boycott a co. based on the facts that emerge at trial) viii. Evergreen Greenbacks (773-74) 1. (1)(a)? a. No; not a violation 2. (1)(b)? a. No; not failing to perform specified duty 3. (1)(c)? a. Was it recklessly tolerated? b. Note that (5)s due-diligence defense is not available for (1)(c) violations: cant both recklessly tolerate and exercise due diligence ix. Problems 1. The Shield that Hurts (782) 2. CEO of Baltimore Rodents (782-83) a. Application of personal liability under 2.07(6)(b) b. Liability might go in either direction: people who engage in certain actions on behalf of a company might be held corporately liable and/or personally liable for those actions 3. Collapse at Kalahoo No. 3 (1142-43) a. Liability under (6)(a)? (6)(b)? V. GENERAL DEFENSES 1. JUSTIFICATION I & II: LESSER EVILS; PUBLIC AUTHORITY i. Criminal Defenses 1. General Defenses a. Justifications i. Justificationsconduct justified, conduct was appropriate under circumstances, either not bad, or that it was good. Conduct was criminal, but in context, might have been good/warranted [Lesser of Evils?]. Conduct justified. Not a bad act. Make claim conduct is justified

a. You say your conduct is justified because it is appropriate under the circumstances. The actors otherwise criminal conduct avoided a greater harm/evil than it created. There is some thing you have done which may be wrong but was appropriate b. Excuses i. ExcusesNot saying conduct OK, saying what was done was wrong, but should not be held accountable. Not a justification. But that no punishment, not sensible to blame. Actors are excused. Not a bad person a. The actions themselves are not justified, but the actor are excused. Ex. insanity, immaturity, any sort of cognitive shortcoming c. Justifications apply to acts; excuses apply to actors. d. Nonexculpatory Defenses i. Non-exculpatoryShould not be punished for other reasons. Defenses: immunity, statute of limitations ii. Takes social policy and societal interests into account. Applies to actors whose criminal conduct is not justified and who are fully responsible (not excused) for that conduct iii. Same is true of the statute of limitations. After a certain period, we will not punish you even though your act/culpability is still reprehensible and could have been prosecutable had the statute not run 2. Other Defenses: These kinds of defenses are necessary if you committed some sort of crime a. Missing element (e.g., mistake) b. Offense modification (e.g., consent) Justifications: Generally: Internal structure 1. Triggering conditions 2. Necessity a. Acts when, and only to the extent, necessary to protect/further the interest at stake 3. Proportionality a. Proportional to the harm you are facing Lesser Evils Defense 1. Triggering conditions a. Could be just about anything 2. Necessity a. Immediate v. Imminent threat b. An actor is entitled to respond whenever they have the available chance to act 3. Proportionality 4. Note (what appears to be) utilitarian nature of defenseexplicit cost-benefit analysis a. Under a retributive lens this would never fly. You killed one person to save the lives of 7 people? Nope. You still killed someone. Thats wrong, not something you should do b. But under a cost-benefit perspective, a lesser evils defense is accepted. Killing may be justified if something good comes from that killing Public Authority 1. Note two differences from other justifications: a. Here only authorized actors, not just any actor, will receive justification b. Triggering condition need not be an immediate threat of harm Public Authority: Deadly Force 1. When it is proportional to use deadly force. This is often specified by statute 2. MPC 3.07(2)(b) requires a. Felony b. Peace officer c. No substantial risk of injury to innocents

ii.

iii.

iv.

v.

d. Crime involved use or threat of deadly force, or substantial risk of death or serious bodily harm if arrest delayed 3. NY 35.30(1)(a) requires: a. Felony involving use or threat of force, or b. Kidnapping, arson, escape, or burglary, or c. Felony and offender is armed with deadly weapon, or d. Threat of imminent use of deadly force vi. Case of Isreali General Security Service 1. Why hold the GSS liable for death when that was not their intent? They certainly intended to commit harm through torture, but intending death? Is that culpability level there? 2. We dont want to leave behind the offense element before even considering whether a death applies. First we must establish the offense and whether they satisfy the objective elements of the crime and have the proper culpability 3. This is not a mitigation, where a lesser crime might be charged instead. It is a defense which will excuse an actor from all liability 4. If you are lawfully authorized to commit a crime, that invokes a public authority defense. You cannot be found liable. Did the Israeli government authorize the GSS to torture others, even if that torture might lead to death? 5. Sometimes it is not necessarily known to an actor whether their conduct is necessary or even authorized. You might think something is necessary when in fact there is something else you might have done in its stead vii. viii. Problems 1. Dudley & Stephens (458-61) 2. Fight, Submit, or Escape (462) 3. No to Nuclear Power (462-63) 4. Burning Down Crack House (463) 5. Bomb Thief (463-64) 6. Rodney King (486-87) 2. JUSTIFICATIONS III: DEFENSIVE FORCE i. Defensive force justifications = As written, typically only justify the use of force against someone who is acting as an aggressor, but dont necessarily apply to other crimes (meeting force w/force) 1. Self-defense is sort of like an equal evil protecting one against another 2. When are you entitled to use specific kinds of force? Typically defined by statute ii. Dudley & Stephens 1. Uses the exact utilitarian logic. But under a retributive system, Dudley and Stephens were not justified in sacrificing one person in exchange for protecting the lives of many others 2. You can tease out the necessity and immediacy of the situation to determine what kind of appropriate action ought to be taken iii. Trolley Problem 1. People are more willing to sacrifice the lives of others when the sacrifice is detached (flipping a switch v. pushing someone onto the tracks to prevent the deaths of passengers in an imminent train crash) 2. The super-utilitarian perspective of this situation says: Pull the switch. Even if you are convicted of homicide and given the death sentence for your actions, that dilemma still results in 2 people killed versus 5 people saved. From a purely logical utilitarian view: Your morals are getting in the way of logic. But that is not how most people are able to rationalize that situation (by thinking only numerically). Human relationships/bonds (e.g. child/parent) often complicate moral behavior iv. General Issues 1. Triggering Conditions

v.

vi.

vii.

viii.

ix.

a. Response to use of unlawful force. If someone is using force against you, youre not necessarily entitled to respond in kind. You must determine whether it is lawful/unlawful and therefore justified 2. Necessity 3. Proportionality: typically dictated by statute a. The most important distinction is in force v. deadly force b. Another distinction arises in defense of person v. property. Usually deadly force is not authorized purely for the protection of property. Usually it arises when the threat of property also threatens people (e.g. arson, robbery [in some cases]) Defensive force: triggering conditions (527-31) 1. Response to unlawful force 2. Rosies Home Run (526) a. Under MPC 3.06(2)(a), Logan is in possession of baseball i. Thus Frankie has no right to use force under (1)(a) ii. Also no right under (1)(b), because ball wasnt unlawfully taken b. Frankies punch is unlawful, and Logan is entitled to use force in self-defense under 3.04(1), to the extent necessary Problems 1. Archery and Arson (517-18) 2. Homemade Burglary System (518) 3. Defense of Unborn (518-19) NY: Defense of self and others (35.15(1)) 1. A person may use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless: a. The latters conduct was provoked by the actor himself with intent to cause physical injury to another person; or b. The actor was the initial aggressor; except that in such case his use of physical force is nevertheless justifiable if he has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or c. The physical force involved is the product of a combat by agreement not specifically authorized by law NY: Deadly force (defense of self and others) 1. Definition: 10.00(11) physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury 2. 35.15(2): person may not use deadly force unless [general rules for use of force are satisfied and:] a. (a) He reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating; except that he is under no duty to retreat if he is: i. (i) in his dwelling and not the initial aggressor; or ii. (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction [per 35.30]; or b. (b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery NY: Defense of premises (35.20) 1. Any person may use physical force upon another person when he re Any person may use deadly physical force if he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of arson asonably believes such to be necessary to prevent

x.

xi.

xii.

xiii.

or terminate what he reasonably believes to be the commission or attempted commission by such other person of a crime involving damage to premises. 2. A person in possession or control of any premises, or a person licensed or privileged to be thereon or therein, may use physical force upon another person when he reasonably believes such to be necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission by such other person of a criminal trespass upon such premises NY: Deadly force (defense of premises [35.20]) 1. Any person may use deadly physical force if he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of arson 2. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary 3. Cf. 35.15(2)(c), 35.20(2) MPC: Defense of self / others 1. 3.04(1): [T]he use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. 2. 3.05(1): [T]he use of force upon or toward the person of another is justifiable to protect a third person when: a. (a) the actor would be justified under Section 3.04 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; and b. (b) under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and c. (c) the actor believes that his intervention is necessary for the protection of such other person MPC: Defense of property (3.06(1)) 1. [T]he use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary: a. (a) to prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property, provided that such land or movable property is, or is believed by the actor to be, in his possession or in the possession of another person for whose protection he acts; or b. (b) to effect an entry or re-entry upon land or to retake tangible movable property, provided that the actor believes that he or the person by whose authority he acts or a person from whom he or such other person derives title was unlawfully dispossessed of such land or movable property and is entitled to possession, and provided, further, that: i. (i) the force is used immediately or on fresh pursuit after such dispossession; or ii. (ii) the actor believes that the person against whom he uses force has no claim of right to the possession of the property and, in the case of land, the circumstances, as the actor believes them to be, are of such urgency that it would be an exceptional hardship to postpone the entry or re-entry until a court order is obtained MPC: Deadly force (defense of self or others [3.04(2)(b)]) 1. The use of deadly force is not justifiable under this Section unless the 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: a. (i) the actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or b. (ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right

thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that: i. (1) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and ii. (2) a public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed xiv. MPC: Deadly force (defense of property [3.06(3)(d)] 1. The use of deadly force is not justifiable under this Section unless the actor believes that: a. (i) the person against whom the force is used is attempting to dispossess him of his dwelling otherwise than under a claim of right to its possession; or b. (ii) the person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other felonious theft or property destruction and either: i. (1) has employed or threatened deadly force against or in the presence of the actor; or ii. (2) the use of force other than deadly force to prevent the commission or the consummation of the crime would expose the actor or another in his presence to substantial danger of serious bodily harm xv. Case of Bernhard Goetz 1. MPC 35.15 - To be applicable, you must fulfill both subsections (1) and (2) a. Goetz had to believe that the use of force against him was imminent (that he was about to be robbed). Then we get to the issue of whether he was allowed to commit deadly force 2. We must first look at: a. What offense Goetz committed in the first place (attempted murder, aggravated assault, etc) b. What offense he was attempting to prevent 3. Even if he did believe them to be armed, was Goetz reasonable in his use of force against each of the 4 men? What about the fact that he fired a fifth shot even after the man was down? It seems like he is: a. Guilty of Attempted Murder b. Nothing at all (pure self-defense) 4. Looking at the broader social context, one could say Is this the kind of atmosphere we want to foster? One in which the NY Subway becomes some sort of lawless land, where the justice system turns a blind eye to muggings and robberies? a. On the other hand, This man shot four black men; this was a racially charged shooting. Was this shooting framed by Goetzs own racism? It is a troubling aspect of the case 5. Some people believe there should be no self-defense justification (utilitarian view) because it perpetuates a system of violence/authorizes violent reactions that makes society more pervasively violent xvi. Rosies Home Run (p. 506) 1. When Logan uses force against Frankie, is that force justified? Where would we look to make this determination? We would look to the rules of MPC 3.06(1)(a)-(b) 2. Was Frankie unlawfully dispossessed of the baseball? No. Under MPC 3.06(2)(a), Logan is in possession of the baseball 3. Frankie has no right to use force under (1)(a). He also has no right to use force under (1)(b), because the ball was not unlawfully taken 4. So, Frankies initial punch against Logan is unlawful, and Logan is entitled to use force in selfdefense under 3.04(1) to the extent necessary 5. But is he allowed to use deadly force? No, not unless he believed it was necessary to protect himself against death, serious bodily harm, kidnapping, or sexual intercourse compelled by

force/threat. 3.04(2)(b). Did Logan use deadly force in the first place? Did he intend to cause Frankies death by blunt trauma? Was the deadliness of the force understood at the moment it was used? 6. To understand whether deadly force is justified, you must first consider whether the aggressor was justified in the use of their own force xvii. Archery and Arson in the Garage (p. 517) 1. Is Gleghorn liable for some or all of his activity? Yes. He may be held liable 2. Fairall is not presenting a threat (he is asleep) when Gleghorn lights his property on fire. Fairall is entitled to protect himself when he wakes up and finds a threat of arson 3. You must always consider who is entitled to use lawful force in a particular situation? xviii. Homemade Burglary System (p. 518) 1. He has killed someone, so we must also determine the level of homicide. Maybe reckless/negligent homicide, depending on his level of awareness of the voltage levels necessary to cause death. Puzzle over this: Even if this behavior isnt justified, is it a crime in the first place? a. If he is potentially liable for negligent homicide, is he justified? 2. He is entitled to protect his own property from unlawful entry under 3.06. But is he entitled to use deadly force? Does the proportionality line up? Was it necessary? 3. Use of Device to Protect Property - Extends to the use of a device only if the device is not designed to cause or known to create a substantial risk of causing death or serious bodily harm, and the use is reasonable under the circumstances, and the device is one customarily used for such a purpose or reasonable care is taken to make known to possible intruders its presence xix. In Defense of an Unborn (p. 518) 1. To determine whether Kurr was justified in killing her boyfriend, we must consider whether a fetus constitutes a person for purposes of determining whether a life was imminently threatened 2. She would be able to use deadly force if she were responding to deadly force. Does punching someone into a miscarriage present threat of deadly force used against the mother, pregnancy aside? Or is that simply battery/assault? 3. EXCUSES I: EXCUSES GENERALLY; INSANITY AND OTHER DISABILITY EXCUSES i. There is no aiding someone when it comes to excuses. Justifications: yes 1. If a mentally ill person commits arson, you cannot aid that person in lighting the fire and try to mount an excuse defense ii. Remember: Insanity is not a blanket defense. It can either show that you had or lacked the culpability required, but it is not a cover-all excuse 1. It is not a status defense, i.e. its not a defense to be insance. Rather, it is a defense to have a disability or impairment that operates to excuse otherwise criminal conduct iii. Modern Formulations: Have one or both of two prongs of defense: 1. Cognitive: offender lacked the capacity to know or appreciate the nature/wrongfulness of his/her conduct 2. Control: offender lacked the capacity to conform his/her conduct to law a. NY Penal Code has a cognitive prong, but not the control prong. The MPC has both iv. Insanity Defense: Evidentiary/Procedural Issues 1. Burden of persuasion. It is the Ds job (has the burden of proof, as this is an affirmative defense) to prove him/herself insane 2. Medical testimony may be provided, but the insanity claim is a legal claim which is determined by a legal expert 3. Concerns w/abuse a. NGRI (Not Guilty by Reason of Insanity) is raised in less than 1% of felony cases b. The success rate is about 25% (some report as low as 15%) c. More than half of all claims relate to nonviolent crimes d. Over 90% of NGRI verdicts are stipulated by both parties, or found by the court after a bench trial

4. Consequences of a NGRI Verdict a. If you are found not guilty on a NGRI verdict, you are usually turned over to the mental health system for institutionalization/treatment 5. Alternative of guilty but mentally ill (GBMI) a. In response to criticisms of the insanity defense, substantial minority of states have adopted an alternative verdict, guilty but mentally ill (GBMI) b. GBMI verdict if she is guilty of the offense, was sane at the time of the crime, but is mentally ill at the time of trial, as the latter term is defined by statute. c. The effect of a GBMI verdict is that the convicted party receives the sentence that would otherwise be imposed if she were found guilty; after sentencing, however, she may receive psychiatric care in the prison setting or in a mental institution. If she is cured while in custody, she must complete her prison sentence. d. Proponents of the GBMI verdict claim the following benefits of the system: (1) inappropriate insanity findings will be reduced; (2) treatment of mentally ill, but sane, offenders is provided; and (3) the public receives greater protection from mentally disordered and dangerous offenders. i. Critics of the verdict raise the following objections. First, the distinction between mental illness and insanity may be too fine for a jury to distinguish ii. Second, the GBMI verdict is unnecessary: Any person convicted of a crime may receive psychiatric care if the state wishes to provide it iii. Third, persons who are found GBMI are not guaranteed treatment iv. Finally, juries may compromise and return GBMI verdicts when NGRI verdicts should be reached, i.e., the GBMI alternative may reduce the number of appropriate insanity acquittals v. Excuses 1. Insanity 2. Involuntary Case 3. Duress a. Actor put in situation where he/she feels pressure to act a certain way b. If youre driven to commit homicide b/c others have threatened your family, you cannot be justified. But you may be able to claim an excuse 4. Immaturity a. Doesnt really constitute a defense, but is a jurisdictional rule (whether youll be tried in juvenile court, regular criminal court, etc.) 5. Mistake 6. Consider relationship of excuses to: a. Voluntary act requirement i. The requirement is sort of a de facto excuse. Where you behaved involuntarily, you may be excused for the result b. Condition negating culpability i. Insanity is applicable here. If you smash someones head against a wall, but you think you are simply smashing a watermelon, your mental illness is truly what drives your behavior ii. A defense attorney may argue that not only are you not liable, you were not guilty of any crime, period vi. Goldstein Case 1. Goldstein clearly apprehends that pushing someone in front of a train created a serious threat of bodily harm. So he may have been acting recklessly 2. Defense relied heavily on the fact that he was a schizophrenic, and therefore relied on an affirmative defense: insanity. They argue that at the time of the act, he was not aware that his act was wrong. He says he was overtaken by a ghost

a. Goldsteins mental health is a but for cause: Had he not been mentally ill, he wouldnt have committed the act 3. Does claiming that you are possessed by a spirit actually exculpate you from liability? If all youre saying is I couldnt control myself, in NY, if you know what youre doing is wrong despite your possession, that defense may not excuse you from liability 4. Might one say that he had depraved indifference? a. Remember that the act itself does not constitute depraved indifference 5. Its very difficult to determine if an excuse is appropriate and how to characterize a persons mental state at the time they committed an act, particularly for people who are mentally ill. 6. Goldstein could attempt to claim that this was not a voluntary act - that he was being controlled by ghosts a. But this may not be exactly right. His physical movements seem to indicate that he was cognizant and voluntarily acted of his own accord 7. You could try to analogize this case to the Jordan Weaver case. He was temporarily insane at the time of his criminal conduct 8. What about the fact that he failed to take his medication? Criminal law would view this as an omission. What is required to hold someone liable for an omission? Duty. Does he have a legal duty to take his medication? No a. It may be worth writing a criminal statute to address this issue, but as it currently stands in the MPC you are under no duty to take medication which mitigates your mental illness 9. Recall that not guilty and not guilty by reason of insanity are not the same thing. The latter results in a medical/psychiatric examination to determine whether you ought to be institutionalized 10. What about mitigating the crime from murder in the second degree to manslaughter on the basis of extreme emotional disturbance? a. That is what happened in the actual case. Goldstein did plead guilty to manslaughter. These cases often turn into a battle of the experts to establish the depth of insanity 11. The dilemma with insanity is that the thing that provided a defense is also the very reason we want to restrain your behavior. a. Retribution v. utilitarianism: the condition that excuses (from a desert standpoint) is the same thing that makes the person dangerous (from a utilitarian standpoint) 12. Should we use civil confinement more often? What advantages and concerns are associated w/this? a. Instead of, or after, criminal punishment? 13. Simply establishing but for causation, does not automatically justify act 14. NY law requires: that you lose ability to control/discern danger/harm 15. Hard to discern if punishment is appropriate 16. Not taking meds, [OMMISSIONDUTY?] 17. MPCControl 18. Purposes of punishment point in two directions: DANGEROUS v. BLAMEWORTHINESS 4. EXCUSES II: MISTAKE i. Mistake of Law 1. Mistakes regarding facts that constitute elements of a crime are relevant to liability 2. Mistakes regarding contents of criminal law are generally NOT relevant to liability a. Mistakes covering imaginary crimes do not cover criminal liability that was never there at all 3. It is a narrow defense for a mistaken belief that ones behavior is lawful a. This defense seems contradictory to what we have covered so far re: inculp/exculp. Remember our hypotheticals on statutory rape? ii. Mistake of Law Defenses 1. Unavailable Law (MPC 2.04(3)(a))

2. Reliance on official statement a. MPC 2.04(3)(b) b. NY 15.20(2) 3. These defenses are less about whether offender merits an excuse than about whether state should be allowed to prosecute after giving inadequate (or inaccurate) notice about the content of the law a. More like rules advancing the legality principle, or like nonexculpatory defenses, than like other excuses in this respect i. Looks a little like entrapment b. People have a right to know and understand the laws which govern their lives c. Ex post facto law also applies: You can only be held liable for something that was a crime at the time you committed the act d. We adhere to the legality principle even in cases which involve bad people 4. General due diligence defense (NJ) a. The only state that recognizes mistake in a way that looks at all like an excuse defense is NJ: the general due diligence defense. No other state has such a defense iii. Sophies Stand (564-565) 1. Defense under MPC? a. No: Sophie relied on her own research, not on official misstatement 2. General defense a la NJ? a. Does failure to research municipal ordinances prevent defense? Might we able to say that she did not pursue all means available? This is slightly trickier b. Is standard subjective or objective? iv. Problem (573-574) 1. Parking Lot Lottery Ticket a. Cf. MPC 223.5 (1220) b. The fact that an 8 year old is entitled to an immaturity excuse does not necessarily excuse the parent, who may be found to be an accomplice to theft 2. Cultural Marriage Differences a. Cf. MPC 213.1(1)(a), 213.3(1)(a) i. The marriage is unlawful, so the exceptions to rape of a husband against his wife dont apply. They have engaged in deviate sexual intercourse. ii. Can they rely on a mistake about their legal situation? Is there any distinction between the grooms and the parents? Are they all liable? b. The parents had been informed multiple times that what they intended to do was a violation of American law. The grooms may not have been so aware. If anything, they may have even been encouraged by the girls parents c. If we allow for the relaxation of the law in the face of cultural differences, how far should we be willing to bend those norms? d. How do we decide what is and is not a core value? Maybe the driving question is really: is it the role of a penal code to establish societys moral values? e. Do we adhere to a blanket mens rea of culpability? Do we consider motive as a mitigating factor? Ex. a person who steals as a source of income because s/he is poor v. a person who steals because they want to become rich v. Excuses and Character 1. Excuses are unusual in that they look behind culpability to consider its subjective origins or bases here, asking whether formation of culpability is somehow beyond scope of ones responsibility or control 2. Should we do this more generally give people a break for acting on some motivations, and punish more for others? a. Should we do this more generally give people a break for acting on some motivations, and punish more for others?

i. Social influences? 1. Should we mitigate crimes committed by people who had fewer opportunities during their developmental years? ii. Cultural differences? 1. What about people who dont share mainstream norms? Think back to the earlier hypo on Middle Eastern marriage practices. There may be room for a normative debate on whether we should or should not allow those differences to be mitigating factors iii. Hate crimes? 1. Should hate crimes be punished even more? 3. The retributive perspective is that we ought to punish wrongdoers because what they have done is wrong. The utilitarian perspective is that we ought to punish wrongdoers because they are dangerous and the capacity to act dangerously in the future a. Insanity is an example of how the two theories conflict. From a retributive perspective, they arent necessarily wrongdoers in that they are evil. But from a utilitarian perspective, they are dangerous and therefore need to be incapacitated, i.e. incarcerated vi. Kahan Perspective (1053-55) 1. Liberal positivism (which is pre-decided) v. legal moralism (judgments defined after an act has been commited) a. Liberal positivism can sometimes increase deterrence, particularly where societal norms have changed. We want people to embrace and understand this new norm (ex. the changing views on driving while intoxicated) b. Legal moralism: Criminal law doesnt necessarily have to embrace morality in deciding what an individual can and cannot do. Criminal law would be better served if it simply admitted that it is moralistic. Kanah explicitly promotes this view: criminal law should be explicitly moral and say Dont misbehave. Dont commit a wrong. i. Does it adequately mask the moral implications of those criminal statutes? c. Culpability is tricky. There are certain ways in which it could be construed to imply moral/immoral behavior. But what about, say, recklessness and awareness of a risk? That seems to be more of a psychological assessment than explicitly moralistic 2. Which is more accurate as description of existing law? 3. Which is more compelling as basis for crafting criminal law? vii. The Case of Julio Marrero 1. We might say that Marrero was behaving reasonably because gun dealers ought to know the laws behind the product that they are in the business of selling 2. Marrero must say that his mistake is based on an official statement of the law. NY 15.20(2)(d) Is the opinion of a gun dealer an official statement of the law? Is he legally charged or empowered w/the responsibility? a. Maybe the gun dealer was right in his interpretation of the law. Is the statute incorrect or misleading? We have to look at so many NY statutes to figure out whether he was right i. He works at a federal prison, so clearly he does not work at a state prison ii. Does he work at a penal correctional institution? If he does, then he is a peace officer, and the gun dealer would be correct. Not only would he have an excuse, he would not be liable at all iii. If the code had been written any state or penal correctional institution, we might be able to read the language in such a way as to interpret that state modifies penal correctional institution. But the statute does not say this. It says any state prison or of any penal correctional institution. Hmmm All of this suggests that this law is murky and unclear 3. In real life, Marrero was found guilty in trial court, on the basis that he was not a peace officer. The appellate court upheld, 4-3. These are people who read the law for a living, and even they were split in their interpretation of the statute

4. The MPC includes in 2.04(3)(b): that if you act in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous. NY does not have such a caveat in its penal code 5. MISTAKE AS TO JUSTIFICATION i. Want justification to be written/interpreted to allow use of force before danger of death is imminent ii. MPC 3.09 (1) The justification[s in 3.04 to 3.07 are] unavailable when: (a) The actors belief in the unlawfulness of the force or conduct against which he employs protective force or his belief in the lawfulness of an arrest which he endeavors to effect by force is erroneous; and [If you make a mistake about what kind of force is legally allowed to counter the force coming at you, that is no justification. This is a mistake about the situation (this was the mistake made by Jahnke)] (b) His error is due to ignorance or mistake as to the provisions of the Code [or] any other provision of the criminal law [If you make a mistake about the contents of the law, that is irrelevant, and does not constitute a justification] (2) When the actor believes that the use of force upon or toward the person of another is necessary . . . but the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justiciability of his use of force, the justification afforded by those Sections is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability. [If you are reckless about your justification, were going to punish you for reckless homicide. Your mistake must be reasonable so as to afford such a mistake justification] (3) When the actor is justified . . . in using force upon or toward the person of another but he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification . . . is unavailable in a prosecution for such recklessness or negligence towards innocent persons. [If you are jeopardizing other people by your conduct, you can be punished for that if you are so culpable (if you show recklessness or negligence towards innocent third parties)] iii. Mistake as to Justification: NY 1. NY defines most justifications in terms of reasonable belief (not just belief, as in MPC) a. Note, though, that 35.05(1) requires actual authorization (or discretion) b. What result if mistake is unreasonable? No mistake justification is allowed. There is no mitigation, as in the MPC. Youre either behaving reasonably, or youre not 2. NY cases have adopted rule similar to MPC 3.09(3) with respect to harm to bystanders iv. Moros mistake (531-32) 1. It may be that his conduct is reasonable (based on his own belief), but that doesnt mean that it is justified in the eyes of the law 2. Question is whether Moros use of force was unlawful under MPC 3.04(1), 3.11(1) 3. Here it seems that Moros conduct was justified (based on his belief) 4. Even so, Moros conduct still apparently unlawful (in that deli owner or Snakes brother could lawfully resist or prevent it) v. Battered spouse syndrome (cf. Killing Batterer [542-43]) 1. Arises when victims of domestic abuse kill their batterers/abusers 2. Confrontational v. non-confrontational homicides a. Confrontational, e.g. someone kills their batterer as their batterer is attempting abuse/battery b. Non-confrontational, e.g. someone kills their batterer in their sleep c. Most of the defenses which arise are in confrontational circumstances 3. Evidence: History, Experts a. Question of scope of experts to allow evidence i. History of abuse is often allowed

b. Expert testimony is often used to evince the syndrome. The medical trend is toward recognizing this syndrome as a psychological syndrome. The legal trend is towards allowing this kind of medical testimony as evidence in a courtroom [NO LEGAL JUDGMENTS] 4. Justification view a. Should we think about as a version of self-defense? Mistaken justification? b. Supposition is, not necessary to use deadly force c. Even if no imminent threat, is there a reasonable belief of threat 5. Excuse view a. Thought of recognizing threat as an excuse that is more appropriate b. Concern this pathologizes victim, saying they suffer from mental illness or defect i. Possible to think of excuse like duress, that other would have same reasonable response ii. We might be able to say that they suffer from some mental problem. Some experts think that this might suggest a disapproval or an implicit thinking that a victim is not in their right mind (that they have some sort of pathological problem) vi. Utilitarian: How to deter? (1) Allow battered victims to defend, (2) Boost law enforcement, (3) Extralegal means, to shift norms vii. Case of Richard John Jahke Jr. 1. His defense is not clearly one of justification, as it is not clear whether he fully satisfies the elements of a justification defense a. He says that he believes he was justified to use force. Is that the mistake, or is he rather making a mistake about whether his father is about to use deadly force on him? b. Its conceivable that his father was about to use some measure of force against him, to the extent that he believed he was about to be subjected to deadly force c. One could say that he has that belief in good faith. But did he have that faith reasonably? What do we mean by that? See Foley v. State i. An objectively reasonable person would have the same belief ii. Jahnke would base a reasonability defense on previous threats of death, statements that his father would one day kill him. iii. Would an objectively reasonable person be one who had been a victim of abuse, or through the impartial eye of a person removed from the situation? d. Did Jahnke act in the sudden heat of passion? i. Is stomping up the driveway something that would be a provocation in the eyes of the common law? You could counter-argue that his family history had been building up to a confrontation like this, and so it certainly wasnt sudden. ii. Jahnke deliberately plotted out a response to his fathers threats. Is that so indicative of an act done impulsively, in the heat of passion? iii. Self-doubt doesnt then equate pulling the trigger sudden heat of passion. If anything, it suggests a deliberation which runs contrary to the necessary mental state for the manslaughter charge. (527) e. Can Jahnkes behavior be justified, excused, or mitigated? Is the Battered Spouse Syndrome available to him? f. Should we think about an actors behavior against the backdrop of the level of law enforcement/legal action available to them? We want people, as a general rule, to rely on law enforcement (and only on law enforcement) as the proper means of protection i. But if the police are falling short, what now? Think back to the Goetz case, when 1980s era NYPD were arguably not fully protecting its citizens 6. NONEXCULPATORY DEFENSES: ENTRAPMENT i. Nonexculpatory Defenses: Do no speak to the merits, procedural, unrelated to why you ought to be punished 1. Double jeopardy: we dont re-prosecute someone because we have procedural notions of fairness and state power

2. Immunity a. Diplomatic: Dont want to hamper diplomatic affairs or have our diplomats be retaliated against while abroad b. Governmental: We dont want to halt the gears of government so we give immunity to certain government officials 3. Exclusionary Rules (N.B. not full defenses) [i.e. evidence] a. 4th Amendment: e.g. unwarranted police searches b. 5th Amendment: e.g. law enforcement browbeating witnesses 4. Statutes of limitation 5. Incompetency to stand trial 6. These (substantive, not procedural) defenses are what people cite when they state that someone got off on a technicality. These defenses dont connect to the criminal act or culpability ii. Entrapment: Subjective v. Objective [dont want police to turn citizens into criminal, like other nonexculpatory defenses] 1. Objective: what was the extent of police pressure [sort of like duress] a. Focuses only what law enforcement did, apart from the behavior of the perpetrator b. What was the extent of the police pressure? c. Follows the theory that an actor is entitled to a defense based on the acts of law enforcement 2. Subjective: was defendant predisposed? a. Focus on the past prior behavior of the actor b. Was this person predisposed? Would they have committed the crime anyhow? c. This defense is more difficult to achieve because it requires a defendant to show that police misconduct actually caused the crime, not only that it was improper or ran a risk of inducing an innocent d. Predisposed offenders may be able to obtain the defense under the objective formulation, but not the subjective formulation 3. Which is normally harder for defendant to get? Why? a. Subjective version, because it requires defendant to show that police misconduct actually caused the crime, not just that it was improper or ran a risk of inducing an innocent b. Put another way, predisposed offenders may be able to obtain the defense under the objective formulation, but not the subjective formulation iii. Entrapment: MPC 2.13 1. Utilizes an objective entrapment standard 2. Focuses on the behavior of law enforcement. Are they inducing or encouraging somebody to commit a crime? What they did created a risk that somebody would therefore act criminally 3. The burden of persuasion is on the defendant to show that they were entrapped 4. The issue of entrapment is also left to the court, not to a jury (1) A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another rperson to engage in conduct constitutiong such offense by either: (a) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or (b) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it (2) [A] person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment. The issue of entrapment shall be tried by the Court in the absence of the jury. iv. Entrapment: NY 40.05

7. (1)

(2)

(3)

1. Not the same wording, but more or less the same situation as the MPC. A defendant must be able to show the the methods used to obtain such evidence were such as to create a substantial risk. It is an affirmative defense 2. Note that entrapment is not a sting operation. We want the police to determine governmental corruption and bribery, for example. Some crimes can usually only be discovered through such undercover police activity. Thats fine as long as they are not doing it in a way which is underhanded, sleazy, or is creating criminals out of people who would not otherwise BE criminals 3. These rules deter police from behaving in misconduct. In a way these are rules which criminally govern law enforcement 4. In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create substantial risk that the offense would be committed by a person not otherwise disposed to commit it. Inducement or encouragement to commit an offense means active inducement or encouragement. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment v. DeLorean 1. You are only entitled to an entrapment defense if you are pressured into committing a crime by a law enforcement official. Being persuaded by your friend will not exculpate your crime. There is no private entrapment short of duress 2. Vicarious liability is sometimes at play where FBI informants are involved. What kinds of inducements are officials putting on those informants? What happens when the FBI informant acts beyond how the police intended them to act? 3. Possession 4. Communication/Travel a. Travel with intent to commit crime 5. Conspiracy 6. Racketeering 7. Entrapment? a. Discussions with undercover agent b. Only entrapment when pressure is put on you by police 8. Federal Court: Narrow subjective entrapment 9. Deterrance: Greater deterrence for high profiled Ds? 10. Informants: analyze police inducement with the informant, question of vicarious liability MAIN TAKEAWAYS FROM COURSE Criminal law is to engage with statutes/is statutory law [others mostly common], arguments start with statutes, main driver with how you resolve issuewhere policy comes into a. Know what is unclear (if applicable) and where it is unclear In many law courses you will find two lines of argument: One is focused on principle. In this course it is often focused on retribution. The other is that you are attempting to achieve some positive and/or practical outcome: the utilitarian argument. Those two ways of explaining the law will arise in so many areas of law People come with strong moral intuitions, make criminal law interesting, think hard about how it matters may be case we want law to do what we viscerally think what is right

EXAM REVIEW SESSION 1. No need to quote statutes in their entirety - you have limited time and space. Dare to be dull and mechanical. Its alright to use some version of the IRAC formula:

a. List the crime b. List the particular sticking point of that crime and explain the law (how it generally operates) c. Apply the law to the particular context 2. Move quickly through elements that are not particularly controversial in order to arrive at the substance that requires additional elaboration, e.g. if it is clear that someone has met the objective requirements of a crime (this person clearly caused the murder of another), move on to his/her level of culpability. You dont want to ignore the fact that the perp committed intentional murder, but it is sufficient to mention the crime and move on to more complicated arguments 3. Remember that not everything that has been discussed in the course will be covered on the exam. Prof. Cahill does not write completely comprehensive exams. Pick out the most pertinent parts 4. Its okay for your conclusions to be tentative, but be careful to have a conclusion. Its not appropriate to say I would bring a charge for attempted homicide, and the jury would then determine guilty or not guilty. Be clear about your own degree of confidence in your answer. 5. It is useful to have a very brief intro sentence listing the things that you would charge. However, an intro is not crucial, particularly for a take-home exam 6. You dont necessarily need to cite the provision from which you are drawing a criminal charge. However, if you are citing particular language in a provision, it is helpful to cite to that 7. There is no need to fully discuss the lower degrees of a crime if you feel reasonably confident that a higher degree of that crime could successfully be charged. Go where the action is, not where the action is not. However, dont necessarily foreclose a discussion of manslaughter if, for example, a homicide charge could be brought (esp. the sudden heat of passion argument). Dont shut off avenues of discussion where the fact pattern is clearly begging the crime 8. Confine discussions of public policy to questions which clearly demand such a discussion 9. Prioritize your argument. Be sure to mention as many issues as are relevant, but make sure to focus on the depth of analysis for the most important issues 10. Define all parts of the law youre about to apply before you begin any analysis

50%=1500, 175 (2 hrs. 50mins.) 45%=1350, 157 (2 hrs. 30mins.) 40%=1200, 140 (2 hrs. 10mins.) 35%=1050, 120 (1hr. 50 mins.) 30%=900, 105 (1 hr. 40mins) 25%=750, 87 (1 hr. 20mins) 20%=600, 70 (1hr.) 15%=450, 52 (45 minutes) 10%=300, 35 (30 minutes 5%=150, 17 (15 minutes)