Theory of Punishment

Deterrence (a thing that discourages) – utilitarian (useful) theory

○ Assumes that everyone is a rational cost benefit decision makers.

○ General Deterrence -a person will not commit a crime from fear of suffering
the same punishment as the current defendant has suffering
○ Specific Deterrence- the defendant will avoid future crimes because he or she
too fears additional punishment

• Rehabilitation – reform of the individual

○ Society has an obligation to punish an individual in a way that makes him or her
a better person and a better citizen tomorrow
• Isolation
○ Isolating wrongdoers from the abiding person
○ Not pure deterrence since it does not require the defendant to change his
behavior
○ Also referred to as incapacitation

• Education
○ Once the wrongdoer gets punished it educates the rest of the populace
○ It serves as a general deterrence
○ A form of rehabilitation

• Retribution (this is the biggest theory that is used in criminal courts)

○ The individual needs to get what he or she deserves
○ Looks at the past rather then the future
○ They do not care if we are suppose to deter the defendant
○ When using retributive theories- what the defendant deserves turns on a
  Wrongfulness of the act
 Degree of harm caused
 The mental state at the time of the offense

• Communicative retributive
○ Right-deprivations help to define the fundamental equal worth of all human
beings
○ Backward-looking- what did the victim deserve for his past wrong
○ Forward-looking- how does punishment help to reaffirm social bonds and
fundament social values

Statutory interpretation – interpretation the words of the legislature

• LOOK AT THE WORDS AT THE STATUTES

• DO THESE WORDS HAVE PLAIN or UmANBIGUAS MEANING

○ IF YES YOU ARE DONE

○ IF NO THEN YOU LOOK TO LEGISLATIVE INTENT

 Commentary after the statutes

 Legislative history for the states
 Committee reports
 Statutes with similar or different language (taking out something, or the
languages are similar but they have taken out of it)
 Resources : dictionary

○ The Goal- what did the legislature intent to say

 The language
 Plain meaning
  Sources outside the statute- legislature history (committee reports, the
passage of the bill)

○ Ejusdem Generis- limits the general language to the specific terms

 List of deadly weapon- knife, gun (based on these examples is a faire gun,
under the list of weapons? What is the purpose of the gun and what is the
purpose faire gun?
○ Statute Title- they will not really determin the meaning of the statute. May not
always be a clear determination of what the statute is about
• The expression of one thing is the exclusion of another “Expressio unius est exclusio
alterius”
○ A statutes list a number of act, and the act that your client that has committed,
it presumes the act of the client is not included. It is a way to argue that your
client’s act was not criminal.
 The legislature intended to exclude anything that falls outside the list
• Rules of Lenity- should be interpreted narrowly in order to ensure that a defendant
is not convicted for a crime about which the person may leave been unaware
○ The statute favorable to the defendant
○ Narrow construction to benefit the defendant
○ Strictly construe- most favorable to the defendant that the court gives
interpretations

International Law- sometime the US look at what the international law say

Capital Punishment

1. Felony murder- qualifies the decision

a. Any felony with a person that dies (even if the victim got a hard attach it is
still a murder)
2. Vibracated – once the person is convicted the sentencing phase comes in.
a. Aggravating facts- that the states brings in the status
b. Mitigating circumstance by the defendant. Aiming at getting the jury at the
side of the defendant
i. Age could be a mitigating or aggravating fact

3. The court looks at the following things when looking at a death penalty sentencing
 a. Evolving standard of decency – deciding if a sentencing a decent or not.
The society
b. National consensus – in favor of or against.
c. The court always uses independent judgment- they are not thinking
about precedence. They are referring to the lower court at the abuse of
discretion
4. Roper v Simmons – the Three general differences between juveniles under 18 and
adult
a. Lack of maturity and an underdeveloped sense of responsibility
b. Juveniles are more vulnerable or susceptivle to negative influences and
outside pressures, including peer pressure
c. The character of juvenile is not as well formed as that of an adult
Thompson v. Oklahoma – recognized the impact of these characters about juvelines under 16
and relied on them to hold that the 8th Amendment prohibited the imposition of the death
penalty on juveniles below the age of 16.

Elements of a crime – components that when established permit a finding of criminal

liability. All of the element must be present at the same time for the crime to have
taken place.
• Actus Reus – the act must be voluntary
• Mens Reas- mental state
• Causation- proximate and but for (but for your act there will not be a crime.
Proximate unbroken chain of effects that has let to the crime.)
• Attendant Circumstances – elements of the crime that are required to be proved
but are not specific elements
 ○ An “attendance circumstance” is a fact or condition that must be present at
the time the defendant engages in the prohibited conduct and/or causes the
prohibited result that constitutes the social harm of the offense. Often an
attendant circumstance is an element of the offense, e.g., the crime of burglary
– the breaking and entering of the dwelling house of another at nighttime –
contains an elemental attendant circumstance that the crime must occur at
night.
○ A condition that must be present at the time of the action
○ Must be proven: value of an item taken, time or location of an act, amount of
illegal substance involved.
○ May also determine if the crime is a felony or misdemeanor
There must be a concurrence in time- they have to take place of three elements- actus reus,
mens reas reus, and causation

Actus Reus

Wrongful Act

• a 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
○ Involuntary acts
 Reflex or convulsion
 Bodily movement during unconsciousness or sleep

 Unconsciousness- where the subject physically acts in fact but is not

at the time conscious of acting.
 It could include only evidence of such unconsciousness from the
actor’s own testimony

 Conduct during hypnosis or resulting from hypnotic suggestion

Voluntary Act-

• We can not punish someone for inaction or mere thinking

• It is extremely difficult to tell what a person is thinking, let alone whether he will act
on those thoughts by committing a crime
• Voluntary act is
 ○ Movement of the human body that is willed or directed by the actor
○ Not all of the behavior must be voluntary before criminal responsibility
attaches.

 Ex. A person that knows that has epileptic seizures, voluntarily drove a
car and killed four people. Even thought the killing was not a voluntary
act, he voluntarily drove
 Cox v. Director of Revenue- the guy that fell asleep in the car while
bing drunk. The court held that he committed the act when he put the
key in the ignition

○ Omission and Legal Duty

 The criminal law is used to motivate individuals to perform obligations
impose on them by other laws
 One can not claim that he did not act because he was unaware that a
legal duty to act arose
 West v. Commonwealth- the brother that was taking care of his sister that
had mental disability. The brother took responsibility for her, but due to
his lack of performing his duty, the sister died.

 You can accept duty by

• Statute imposes a duty of care
• Standing in a certain status relationship to another,
• Where one has assumed a contractual duty to care of
another
• Were one has voluntarily assumed the care of another
and so secluded the helpless person as to prevent
others from rendering aid

○ Possession or the failure to terminate possession once the defendant

learns of the item’s presence is sufficient to justify a voluntary act
 State v. Winson- the guy that got arrested and was charged with having
drugs in jail. Possession is a voluntary act if the possessor knowingly
procures or receives the thing possessed, or having acquired control of it
was aware of his control for a sufficient time to have enable him to
dispose of it or terminate his control
 Constructive Possession- One cannot convict a person of possession
unless there is evidence of control and dominion over the substance. See
Watson v. State- Δ was guest in a room when raided. No act because no
constructive possession over the drugs.

• Robinson v. California – the guy got arrested because he has scar tissues on his arm
from using drugs. The “use” is an act; but the “addicted to the use” is a condition or
status and the court can not convict someone for status or condition

MEANS REA
- The particular mental state set out in the definition of an offense. The specific mens reas is
an element of the crime

Intent- Purposefully
Conscious object, to engage in conduct that will cause a result that he is aware
of
• It is his desire (his conscious object) to cause the social harm
• He acts with knowledge that the social harm is virtually certain to occur as a result of
his conduct.

○ Ex. A person wants to kill his wife and he places a bomb in her baggage and it is
going to explode when the plain is up in the air. D prays that the other
passengers will not get hurt, but he knows that the plain will explode in the air.
Even thought he did not have the intend to kill all those people, he was almost
certain that they will die.
○ If D is a very religious person and believes that God will grant him all his wishes,
and believes that God will save all those people when the plain blows, It will be
insufficient that he should have been aware as a reasonable person, that they
would be killed.

Knowingly requires awareness.

Aware + practically certain
• Knowledge of a material fact – an attendant circumstance- is required element of an
offense.

○ A person has knowledge of the material fact if he

 Is aware of the fact; or
 Correctly believes that the fact exists

• Most jurisdictions also permit a finding of knowledge of an attendant circumstance

when the defendant is said to be guilty of “wilful blindness” or “deliberate
ignorance,” i.e., if the defendant is aware of a high probability of the existence
of the fact in question, and he deliberately fails to investigate in order to avoid
confirmation of the fact. An instruction in this regard is sometimes called an “ostrich
instruction.”

Reckless- more culpable then negligence

Conscious awareness and disregard + substantial + unjustifiable risk + gross
deviation from the law abiding person

• Consciously disregarding a substantial unjustified risk that the material element

exist.
• Substantial and unjustified risk
 ○ Considering the nature and purpose of the actor’s conduct and the
circumstances known to him
• So understood, “civil negligence”, criminal negligence” and recklessness lie on a
continuum: Each involves unjustifiable risk-taking; they different only in respect to the
DEGREE of the actor’s DEVIATION from the standard of due care
• Criminal recklessness requires proof that the actor disregarded a substantial and
unjustifiable risk of WHICH HE WAS AWARE

Negligence
Should be aware+ substantial + unjustifiable rist + gross devisation from a
reasonable person

• Deviation from standard of care that of a reasonable person would have observed in
an actor’s situation.
○ The actor takes an unjustifiable risk of causing harm to another
• Objective standard- the actor is not punished for his state of mind, but for his failure
to live up to the standards of the fictional “reasonable person”
• Three factors to determine whether a reasonable person would have acted as the
defendant

○ The gravity of harm that foreseeable would result from the

defendant’s conduct
○ The probability of such harm occurring
○ The Burdon or loss to the defendant of desisting from the risky
conduct (the reason for taking the risk)
○ Ex.

 D drives very fast between lanes in his car, in order to get to a friend’s
birthday party. D kills a friend in the car
 1. The gravity of harm was substantial (death)
 the probability of such harm is not unsubstantial
 and the burden to defendant of driving is a safer manner was small
(would have reached the party just a little bet later)

 Same situation, but a father is driving to the emergency room because his
child is dying. – took a justifiable risk
 The negligent actor’s risk-taking, however, is inadvertent: He does nt appreciate that
his conduct is dangerous, although he SHOULD HAVE BEEN AWARE

The difference between Reckless and negligence is that the reckless actor “consciously
disregards” the risk, whereas the negligent actor risk-taking is inadvertent
Distinction Between Negligence and Recklessness – The line between “criminal
negligence” and “recklessness” is not drawn on the basis of the extent of the defendant’s
deviation from the standard of reasonable care — the deviation is gross in both cases — but
rather is founded on the defendant’s state of mind. Criminal negligence involves an
objective standard – the defendant, as a reasonable person, should have been aware of the
substantial and unjustifiable risk he was taking); recklessness implicates subjective fault, in
that the defendant was in fact aware of the substantial and unjustifiable risk he was taking
but disregarded the risk.
Both require the “substantial and unjustifiable” element of risk taking.

• EX. D wrenched a gas meter from gas pipes in the cellar of a building which V resided,
in order to steal coins inside the meter. Gas escaped into V’s living quarters,
unintentionally harming V.
○ D did not have the intent to cause harm to V and he did not know that it was for
certain (as the person that was blowing the airplane) that V was going to get
injured.
○ However if D was AWARE of this risk and Consciouly disregarded it, then it is
correct to state that D recklessly caused the social harm.
○ If D did NOT have such foresight- if he SHOULD have been aware of risk, but
was not- then he acted in a criminally negligent manner.

Principles of Statutory Interpretation – A single mens rea term — of whatever specific

type — modifies each actus reus element of the offense, absent a plainly contrary purpose of
the legislature.
• The means rea is applied to every material element in every statute
• Material element = conduct, attendant circumstances, and the result
○ “purposely destroys a book”
 destroys = conduct and result
 book= attendant circumstance (the legislature was not concerned with the
destruction of computers, wild birds, or furniture)
• If there is only one means rea in the statute it applies to every material element
○ “purposely destroys a book”
 the destruction needs to be purposefully and also the knowledge of the book
need
Proving Intent
 • Direct and Circumstantial Evidence
○ Circumstantial evidence – anything that allows a reasonable juror to infer a fact
that is relevant to the prosecution
○ May only stand where the facts and circumstances disclosed by the circumstantial
evidence form a complete chain which in light of the evidence as a whole
• Natural and Probable Consequences
○ The jury may infer the requisite intent by finding that the D intended a particular
result because it is a natural and probable consequence of his action

CAUSATION

the actus reus of a crime is composed of: (1) a voluntary act (2) that causes (3) social harm.
As all offenses contain an actus reus, causation is an implicit element of all crimes. Causation
has to be “actual” and “proximate.”

Actual Causation

• But-For “factual cause” or “cause-in-fact”

○ There can be no criminal liability for resulting social harm “unless it can be
shown that the defendant’s conduct was a cause-in-fact of the prohibited
result.” In order to make this determination, courts traditionally apply the “but-
for” or “sine qua non” test:
○ “But for the defendant’s voluntary act(s), would the social harm have
occurred when it did?”
○ If there are reasonable evidence, it is a jury to decide

 The prosecution needs to prove beyond a reasonable doubt that the

defendant conduct was a cause-in-fact of the prohibited result
 “But for D’s voluntary act, would the social harm have occurred when it
did?- If the answer is “no” if the social harm would not have occurred
when it did in the absense of D’s voluntary conduct- D is an actual cause
of the result

Accelerating a result – Even if an outcome is inevitable – e.g., everyone dies – if defendant’s

act accelerated death, he can be found criminally liable.
• The “but-for” test can be stated in such circumstances as “but for the voluntary act of
the defendant, would the harm have occurred when it did?”
 • E.g., a defendant shoots a terminally ill patient may still be found guilty of homicide
since although the victim’s death was inevitable, it would not likely have occurred when
it did but for the defendant’s unlawful act.

Proximate cause- Legal causation

• An intervening causes that might cut-off a defendant’s liability for harm.

• Matter of determining when the defendant should be held criminally liable for the
harm to the victim
• There has to be direct connection between the defendant and the crime. If there is
something that was no brought by the defendant harm, then
• Natural and Probable result of D’s actions
• Was this even too remote and accidental to hold the D responsible
• Independent Intervening Cause!!!- cuts the chain of events.
○ The harm was no intended by the D or was not reasonably foreseeable
or the natural and probable results of D’s conduct
○ Too remote or accidental

• Dependent Intervening Cause

○ If the intervening cause is something that have been reasonably
foreseeable from the defendant’s actions
○ Not too remote or accidental
○ Caused by the defendant
HOMICIDE – an unlawful (that is, unjustified or inexcusable) killing of a human being
 Murder – willful deliberate and premeditated killing; in cold blood (mere intent is not
enough, you need premeditated) –
a. Premeditated
i. People v. Thompson- mere passage of time is not premeditation. It can be
used to argue that the time suggest premeditation.
ii.Coolen v. State- the guy that stabbed with a knife a friend while being in his
house, when he though that the friend had a gun. It was not premeditated
since it was not fully formed conscious purpose to kill.
iii. It may be a brief seconds of though

iv.The killer had time not only to form the intent, but also to turn the matter
over in her mind and to give the matter at least a second thought
v.The true test is not the extension of time, but rather the extent of the
reflection
vi.Circumstantial evidence that prove premeditation

a. Want of provocation on the part of the

b. Preconceived designed
c. Killing by poison, laying in wait, torture
d. Motive(D’s prior relationship and conduct with victim)
e. Nature of homicide (pattern of stabbings in the abdmen, not a
limb)
vii.Gilbert v. State- the 75 year old guys that killed his wife to stop her misery.
Good motive is never an excuse.
b. Willful- a specific intent to kill- not on the exam

1. Knowing
c. Deliberate- to measure and evaluate the major facets of a choice or problem
i. Weighting the reasons for and against the action and considering the
consequences of the action
d. Killing by poison or laying in wait and torture = premeditation
2. Murder of 2 degree-
a. All murders –intent to kill or do serious bodily harm, without premeditation
b. Depraved heart
i. Extremely reckless behavior that manifests indifference to the value of
human life
ii.Awareness of an unjustifiable high risk to another’s life or an intent
to cause great bodily harm
iii.Lack of humanity
1. State v. Doub, III- the guy that was drunk and on crack and had couple
of accidents (in the second one he killed a 9 year old kid), he fled the
seine. Enough evidence to show deprived heart (indifference to the
value of human life)

Manslaughter- an unlawful killing that is not done with "malice aforethought"

Voluntary Manslaughter –Heat of Passion

➢ a killing that would otherwise be murder but that is mitigated to manslaughter because it
was done upon being reasonable provoked into a sudden heat of passion w/o
cooling off where a reasonable person would not have cooled off. Similar to first degree
murder because of intent.
• Elements:
○ A mental state that would ordinarily qualify as murder as purposeful killing
○ When Δ has been provoked by the victim into the heat of passion
○ A reasonable person would have been provoked
○ Δ has not cooled off by the time of the killing and
○ A reasonable person would not have cooled off.
 See People v. Pouncey Δ was in heated fight w/ neighbor went into house
retrieved a gun and shot neighbor. There was a cooling off period so no
voluntary m/s. convicted of first degree murder.
• When is provocation adequate
○ Mere word are not enough

Involuntary Manslaughter- similar to second degree murder because it is reckless.

• A reckless killing, a criminally negligent killing, or a killing done w/ tort negligence

○ Negligent manslaughter- no actual awareness of the risk but with a gross
deviation from the standard of care of a RPP. See State v. Williams Δ failed to
take baby to doctor for an infection in tooth that lead to abscess, malnutrition,
pneumonia, and death.
○ D’s negligent act must be “cause in fact” of victim’s death; V must be foreseeable
endangered by the negligent act; V must be harmed in a foreseeable way; and
Type and gravity of harm must be foreseeable.
○ Reckless – done with a subjective awareness of the risk of death but not
under circumstances manifesting extreme indifference to the value of
human life
• Imperfect self-defense

Felony Murder – any death occurring during the course of an inherently dangerous
felony is murder

➢ What felonies are included

○ “Dangerous per se”
 where the statute list types of underlying felonies for the felony murder
○ “by its circumstances create a foreseeable risk of death”
 the inherently dangerous felonies, where it is foreseeable that a death could
occur during the felony
 Hines v. State – D was a felon and while he was hunting for ducks he mistook
his friend for a duck and killed him. D committed felony by possessing a
firearm. The possession of a firearm created a FORESEABLE risk of death
and therefore it is an inherent dangerous felony.
➢ Limitations of Liability
 ○ Guilty of underlying felony
 The D must be guilty of the underlying felony. If he has a defense for the
felony, he also has defense to the felony murder
○ “Merge” the independent felonious purpose
 the underlying felony is independent of the killing. The felony can not involve
the intent of killing. Thus, a felony such as manslaughter or aggravated
battery will not qualify as the underlying felony.
 State v. Contreras – D and couple of friend went into D’s hotel room to get
back at the V for the earlier altercation. During the beating D died. The court
stated that the Burglary (underlying felony) involved the same intent and
they merged, therefore no felony murder.
○ During the Commission of a Felony
 The death must have been caused during the commission or attempted
commission of the felony.
 Death caused while feeing from the crime are is also a part of the crime. But
once the felon has reached a place of temporary safety the impact of felony
murder ceases
➢ Causation
○ Cause in Fact- “the result would not have occurred but for the defendant’s conduct
○ Proximate Causation – D is responsible for all results that occur as a
natural and probable consequences of his conduct, even if he did not
anticipate the precise manner in which they would occurred.
 The Agent theory- the killing must have been caused by the defendant or
someone acting as the defendant’s agent (an accomplice). The defendant is
not liable for felony murder when someone is killed by the victim or police
• State v. Sophophone- D was not guilty for the death of his accomplice
because D was arrested and the police shot the accomplice b/c he
resisted arrest. If it is a lawful killing the D’s can not be liable for such
a killing.

Property Offenses

1. Larceny (title does not pass)

➢ A taking
○ Obtains control of the property
○ Must be trespasser- without the consent of owner
○ Breaking bulk- obtained possession lawfully, but opened the bag and
that created larceny.
➢ And carrying away (asportation)
○ All parts or portions of the property be moved slightly
➢ Of tangible personal property
➢ Of another – possession not ownership
○ Taken away from a person with possession other than the defendant
 If D had possession at the time of the taking (bailee), the resulting offense is
not larceny, it could be embezzlement.
  It will be a larceny if property is taken from a thief, as he has possession
interest.
○ Custody v. Possession
 The person who had only temporary and extremely limited authorization to
use the property had only custody and not possession
• Employees have only custody of their employers’ property
 Generally, a bailee has possession. If however she opens closed containers in
which the property has been placed by the bailor “breaks bulk,” then it is
larceny
• Trespass on the goods inside and hence larceny
 Lost property – even if the owner does not know where the item, if the D
knows who the owner and indented to convert the item, then it is trespass
➢ With the intent to permanently (or for unreasonable time) deprive the person of
his interest in the property
○ Sufficient intent
 Intent to create substantial risk of loss
 Intent to pledge goods or sell them to owner
• People v. Shannon- took clothes and pretended that the clothes were
his and got money for them. Even though D did not want to deprive the
store permanent of the clothes, he still indented to permanently
deprive the store of money equal to the clothes’ value
○ Insufficient intent
 Intent to borrow, return the property within a reasonable time and at the
time of the taking has the ability to do so, an unauthorized barrowing does
not constitute larceny.
• But if later while in possession of the property the D forms the intent to
steal, the trespass involved in the initial wrongful taking is regarded as
continuing and the D is guilty of larceny.
• Joyriding- not larceny, b/c the D had the intent to return the vehicle
 If D honestly believes that she is entitled to the property as repayment for a
debt of the other
○ Misbelieved Property
 The receipt must at the time of the misdelivery realize the mistake ; and
 The recipient must, at the time she accepts the delivery, have the intent
required for larceny
➢ Lost property – can be charged with larceny if
○ The one who finds the property has reason to believe he can learn the owner’s
identity
○ When the finder takes posseion of the lost property, he must, at that moment,
have the intent to steal

2. Larceny by Trick

➢ Same as larceny but the taking is by fraud, which negates the owner’s
apparent consent.
 ➢ Pear’s case where Pear rented a horse from V, intending all the while to take the horse
and sell it. Pear argued that his initial taking of the horse was consensual and not
trespassory.
○ He had the intent to permanently deprive the owner of the property .
○ If Pears had formed the intent after the taking, then it will be embezzlement

3. Embezzlement- lawful possessor’s fraudulent conversion of the property of another

➢ The fraudulent
○ Intent to restore similar or substantially identical property is not a defense
➢ Conversion
○ D deals with the property in a manner inconsistent with the trust
arrangement pursuant to which he holds it.
○ No movement or caring away is required
○ It does not have to benefit the D.
 Ex. Giving the money of his boss to charity
➢ Of property
➢ Of another
➢ By a person in lawful possession of that property
○ An employee may either have possession of property given to him by his employee
(guilty of embezzlement) or be only in custody (since the employee retains
constructive possession) and hence be guilty of larceny
 Employer gives employee 500, and employee goes and spends it= larceny

False Pretenses – a misrepresentation that makes the V pass title to his property to the
wrongdoer, with the wrongdoer knowing his representation is false and intending to defraud
the V.

➢ Obtaining title
➢ To the property of another
➢ By an intentional or knowing false statement of past or existing fact
○ The failure to disclose a fact does not constitute false pretenses, Unless there is a
preexisting fiduciary duty b/w the parties
○ What will occur in the future is not sufficient. A false promise, even if made w/out
the present intent to perform, is also not sufficient
➢ With intent to
○ The D knew the falsity of her representation
○ The specific intent is not present if the D is acting under a claim of right or intends
to return the property
 ➢ Bell v. US- Bell opened a bank account deposited a check that was not his, took the
money the next day. Bell acquired ownership to the money, therefore it was false
pretenses

Robbery

➢ All of the elements of Larceny

➢ From a person or the presence of a person
○ Reasonably close to the victim, but not taken from her person
➢ By violence (force) or Intimidation (fear)
○ Threats of immediate death or serous physical injury to the V
○ The use of force encompasses the period immediately after the taking, if
wrongdoer uses force to stop the victim from catching him or regaining the
property

Receiving stolen goods-

➢ Receive personal property that has been stolen

➢ Knowing or believing that it’s stolen
➢ With the intent to deprive the owner of his property
Attempt – D attempt is an act that, although done with the intention of committing a crime,
falls short of the completing the crime

➢ Elements
○ Intent to commit the crime attempted
○ Some acts in furtherance of the intent
➢ Means Reas- specific intent is required
○ Reckless or negligence does not apply
 You can not attempt involuntary manslaughter
○ Same mens reas as target offense
➢ Act
○ An act beyond mere preparation for the offense
 Proximity approach – the defendant has done everything necessary to bring
about the crime
 Probable desistance- Only an act that would normally be sufficient to result
in the commission of a crime “but for” the intervention of some outside
person or event
 Equivocality approach- the doing of the act can have no other purpose than
the commission of the crime (Res Ipsa Loquitor)
 MPC- that the act or omission constitute a “substantial step in a
course of conduct planned to culminate in the commission of the
crime”
➢ Impossibility
○ Factual Impossibility – NEVER a Defense
 Despite D intent he can not complete his intended crime because of facts or
conditions unknown to him or beyond his control
 • Try to steal money from a person, and when reaches in pocket no
money
• Chen v. State- made a date to have a sex with a minor, but the person
was not a minor but an undercover cop.
○ Legal Impossibility – Always a defense
 The D thinks it is a crime but in fact there is no law making it a crime
➢ Abandonment – it is an affirmative defense
○ Voluntarily abandons the crime, not as a result of extrinsic factors that increase
probability of detection
○ Must be complete abandonment
○ Patterson v. State- D claimed abandonment of crime. He was charged attempted
burglary. He left the house when he heard someone coming down the stairs. He
abandoned out of fear.

Solicitation –

➢ Actus Reus - Consists of inciting, counseling, advising, inducing, urging, or commanding

another to commit a crime
○ If the communication did not reach the individual he hoped to encourage, in
some jurisdictions he could only be convicted of attempted solicitation
➢ Mens Reus- Specific intent that the person solicited commits the crime
○ Approval or agreement is insufficient
➢ It does not require the person solicited to commit the crime or do anything in response
➢ If the person solicitude agrees to the solicitation, then it becomes conspiracy.
➢ Withdrawal or renunciation is not a defense
➢ It is different form attempt

Conspiracy – occurs before anything has occurred

➢ Elements
○ An agreement – actus reas
 Does not need to be expresses
○ Understanding a common purpose – Specific Intent
 Knowledge of another person’s criminal purpose
  One must have knowledge of the agreement and also have the specific
intent to agree and commit the unlawful objective of the agreement
 Does not need to prove that had knowledge of the circumstance or that
knew all the co-conspirator
 Knowledge of the criminal plan is not sufficient. There must be an
agreement
○ An overt act
➢ No merger – can be charged with conspiracy and the crime
➢ Each conspirator can be liable for the crimes done by other co-conspirator if –
Pinkerton Rule
○ The crimes were committed in furtherance of the objective of the conspiracy
○ The crimes were “a natural and probable consequence” of the conspiracy –
FORESEEABLE
 The defendant should have anticipated their possible commission
➢ Different from attempt because attempt requires SUBSTANCIAL STEP
○ Conspiracy requires only an agreement
➢ Warton Rule- no crime of conspiracy unless more parties participate in the agreement
than are necessary for the crime
○ Where two or more people are necessary for the commission of the substantive
offence does not constitute conspiracy
 Adultery, dueling, sale of contraband, prostitution, selling of drugs
➢ If does not matter what happens to the other conspirator
○ They can be requited, not charged, but the state can convict the others
➢ Defenses
○ Impossibility is not a defense
○ Abandonment is not a defense however it could be if
 Tell everyone that you are out
 Try to persuade the others not to commit the crime
 And inform law enforcement officers
➢ Proof of conspiracy- Co-Conspirator statements
○ Any statements made by one conspirator during the court of the conspiracy and
in furtherance of the conspiracy can be used a sevidence against every other
member of the conspiracy
○ Exception to the hearsay rule

Accomplice Liability – all parties to the crime can be found guilty of the criminal offence

➢ It is not a crime, it is a theory of liability

➢ Actus Reas
○ Actually helping in a physical sense (providing the murder weapon, acting as
lookout, or driving the gateway car)
○ Assisting in a psychological sense (encouraging the commition of the crime
either before or during its actual commission)
➢ Means Reas
○ A person must have given aid, counsel, or encouragement with the intent to aid
or encourage the principal in the commission of the crime charged
 ○ Mere knowledge that a crime would result from the aid provided is insufficient for
accomplice liability- selling a gun knowingly that it will kill someone
 But if the gun is sold for 3 time its orginal price, he would have an interest in
the venture and could be liable as an accessory
○ The purpose to further its commission,
➢ Scope of Liability
○ An accomplice is responsible for the crime he did or counseled and for any other
crimes committed in the course of committing the crime contemplated, as long as
the other crime were probable or foreseeable
○ The accomplice liability – the person does not need to be present at the time of the
crime.
➢ Withdrawal
○ If the person merely encouraged the commission of the crime, withdrawal
requires that he repudiate this encouragement
○ If the person assisted by providing some material to the principal,
withdrawal requires at least that the person attempt to neutralize this
assistance
○ It must occur before the chain of events occur and the crime is unstoppable
➢ The accessory and the principal can be convicted of the crime, even if one of them is
not, or if one of them plea bargained his case, or one of them got off the charges.
➢ An individual cannot be convicted of being an accomplice if the crime requires two party
for the crime (prostitution, selling drugs).
➢ The principle must know of the accomplice’s intentions in order for the accomplice to be
liable
○ While the principal normally would need to know of another’s willingness to help
commit a crime in order for that person to be an accomplice, this is not true when
the accomplice is present and actually aids or assists in its commission
➢

Defenses

Alibi

➢ Evidence placing the D somewhere else at the time of the crime.

○ Not being at the crime does not = alibi
○ State v. Deffabaugh0 defendant wanted to show that he was not at crime, bot that
he was somewhere else at the time of the crime.
➢ Notice must be given to DA, otherwise the defense will not be valid

Self- Defense
 ➢ A person is justified in threatening or using physical force against another when and to
the extent a reasonable person would believe that physical force is immediately
necessary to protect himself against the other’s use or attempted use of unlawful
physical force
➢ General Principles
○ Necessity – the threat must be immediate
○ Proportionality
 D to use no more force than necessary to repel the aggressor
○ Reasonable belief
 Reasonable man standard = objective standard
• So long as a reasonable person in the defendant’s position could also
reasonably perceive the facts or circumstances in that way
• The actual characteristics of the D and the V are relevant (a prof. boxer
v. a 5 feet man)
 What defendant believed = subjective
• The facts and circumstances must be taken as perceived by the D,
even if the facts were not as the D believed them to be
• Subjective (D actually believes that the force is necessary),
and an objective standard (reasonable in the circumstances
including the D background and experience)
➢ Race
○ Using self-defense in situation where a person perceives himself in grave danger of
imminent harm primarily, or in significant part, because of the race of your victim
would be a defense.
➢ If D was the aggressor – no self-defense
➢ Burden of Prove
○ The D must meet the initial burden to provide evidence to establish self-defense,
and then the prosecution must demonstrate the lack of self-defense BRD
➢ Retreat Rule
○ Minority of states require the D to retreat to a place of safety, if one is reasonably
available, before using deadly force
○ The Castle Doctrine – even in those jurisdictions that require retreat before using
deadly force, a person need not withdraw in their own home, or in the area
immediately adjoining it – “curtilage”

Defense of Others

Defense of Property

➢ A D has a legal right to use nondeadly force when he has an honest and reasonable
belief that it is necessary to protect real or personal property in his possession from
imminent unlawful taking, damages, dispossession, or trespass.
➢ Force may not be used if there was other lawful measures
➢ If he can do so without risk to himself or his property, an individual must warn the
aggressor to stop unless it is clear the warning would be useless