MAIN IDEAS FOR CRIMINAL LAW

Theories of Punishment 1. Utilitarianism (Jeremy Bentham) the purpose of all laws is to maximize the happiness of society. Utilitarians stress general deterrence (punishment intended to deter the general community) Specific (or individual) deterrence is an alternative utilitarian goal. Criticism: (1) Uses people solely as a means to an end, that they do not have immutable rights (2) Can justify punishment of the innocent (3) Critics doubt that criminals can be reformed. 2. Retributivism (Immanuel Kant) Focus on the individual. The main point is human dignity. Punishment is justified when it is deserved. It is deserved when a wrongdoer freely chooses to violate societys rules. Focus on humans free will & dignity. Humans are ends, not means. Assaultive retribution (societal retaliation) Because the criminal has harmed society it is OK for society to harm him back. Protective Retribution Punishment is a means of securing a moral balance in society. (Not allowing free riders). Victim vindication Righting a wrong by reaffirming the victims worth as a human being in the face of the criminals challenge to that worth. Criticism: (1) Punishment is senseless and even cruel if it does no good; (2) it legitimizes hatred & anger; (3) it is irrational as it is based on anger, not reason ELEMENTS OF THE CRIMINAL OFFENSE A criminal offense is: (1) a culpable actors; (2) unlawful (must be by statute: legality); (3) act (actus reus); (4) wrongfully; (5) endangering a protected public interest and (sometimes); (6) causing a harmful consequence. A criminal offense consists of 2 main elements: (1) Actus Reus (a bad act), the physical or external portion of the crime (2) Mens Rea (a guilty state of mind), the mental portion of the crime. Actus Reus (Act Requirement): Consists of three ingredients: (1) a voluntary act (2) that causes (3) social harm. It is based on the retributive belief that it is morally wrong to punish people for their enacted-upon intentions. We dont want to punish types of people (e.g. poor). We want to protect free speech & the ability to change ones mind. Consequence Offenses: Where the law is determined by the harmful consequence (e.g. murder). Other laws are based upon the act committed (e.g. rape), rather than the consequences. Proctor v. State (COA Okla. 1918) Man was convicted of keeping a place with intent to unlawfully sell liquor. The conviction is vacated here because to constitute a crime there must be some commission or omission. The bad intent (mens rea) and the bad act (actus reus) must concur in time. FAILURE TO ACT CAN BE AN ACT - Omission v. Act: Jones v. US (DC Cir. 1962) Identified 4 situations in which the failure to act may constitute a breach of a legal duty: (1) where a statute imposes a duty to care for another; (2) where one stands in a certain status relationship to another; (3) where one has assumed a contractual duty to care for another; and (4) where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.

REQUIREMENT OF VOLUNTARINESS Martin v. State (COA Ala. 1944) Police brought drunken man into public, and then charged him with public drunkenness. Conviction overturned. The criminal act must be voluntary. Involuntary Acts: The Model Penal Code considers reflexes, bodily motions during sleep, conduct during hypnosis, and bodily movements otherwise not a product of the determination of the actor to be involuntary. People v. Decina (1956) Defendant found criminally liable for car accident deaths where he had an epileptic seizure, because he knew that such a seizure might occur at any time. THE PROHIBITION OF STATUS CRIMES Robinson v. California (1962) Re: A CA statute that made it a criminal offense to be addicted to the use of narcotics. Held: Narcotics addiction is an illness. It would be cruel & unusual punishment in violation of the 14th Amendment to imprison someone based upon their status as ill. Powell v. Texas (1968) Did not allow the same defense for alcoholism where his problem wasnt for being drunk (which may not be of his volition), but for being drunk in public. Concur (White): Says that even where there is an irresistible compulsion to drink, a man may not be shielded from conviction when he knowingly failed to take reasonable precautions against committing a criminal act, here the act of going toa public place. Pottinger v. City of Miami (S.D. Fla. 1992) Plaintiffs complain that Miamis practice of arresting homeless people for the basic activities of life (e.g. sleeping, eating) is a violation of the 8th Amendment ban against cruel & unusual punishment. Court agreed based on the involuntariness of the activities given the unavailability of low-income housing. LEGALITY (Fair Warning) Legality A person may not be punished unless her conduct was defined as criminal before she acted. This principle has 3 corollaries: (1) Criminal statutes should be understandable to reasonable, law-abiding people (2) Criminal statutes should be crafted so as not to delegate basic policy matters to policemen, judges & juries for resolution on an ad hoc and subjective basis. (3) Judicial interpretation of ambiguous statutes should be biased in favor of the accused (lenity doctrine). Keeler v. Superior Court (Calif. 1970) Facts: Man punched his pregnant ex-wife in the stomach. Fetus died. He was prosecuted for murder the unlawful killing of a human being. He claimed that the fetus was not a human being under the law. Held: The legislature did not consider a fetus to be a human being. The court does not have the right to define crimes. And, without fair warning that an act is a crime, there is a violation of due process of law. (Prohibition of ex post facto laws). SPECIFICITY City of Chicago v. Morales (1999) Chicago City Council enacted a criminal ordinance that prohibited criminal street gang members from loitering with one another or with other people in a public place. The S.Ct. of IL held that the ordinance violated the due Process Clause of the 14th Amendment. This court affirmed, as the ordinance was unconstitutionally vague. (E.g. How far must loiterers go after the disperse?) It provided absolute discretion to the police to determine what constituted loitering. Thus, the ordinance could be applied by the police to attack innocent activity. Note: If it were written more narrowly (e.g. prohibiting intimidating activity by gang members) it would be constitutional. Mens Rea The Guilty Mind The criminal law generally conceives bad thoughts as (1) the desire to harm others or violate some other social duty; or (2) disregard for the welfare of others or for some other social duty. One can manifest a guilty mind, or

mens rea, by implementing an ignoble desire, or by acting uninfluenced by a noble desire, such as concern for the
safety of others. -Every element of the actus reus must adhere to a requirement of mens rea.

Regina v. Faulkner (Ireland 1877) Sailor accidentally set fire to a ship while attempting to steal rum. This court overturned a lower court decision finding him guilty & sentencing him to 7 years. The defendant should intend the act with which he is charged, or that it was the necessary or foreseeable consequence of some other felonious or criminal act. -For attempts (non-complete offenses) the prosecution must prove purpose (that the defendant was aware of the situation & purposely intended it to happen. -For Knowingly & Purposely there is a presumption that people know the natural consequences of their actions. Ideas: (1) Intentional/Purposely D not only knew what he was doing, but intended it to happen (Best standard for D). (2) Knowingly Prosecution must prove that the defendant knew what they were doing and/or the required circumstances existed and/or that the result would occur. (3) Recklessly Where the defendant knew there was a risk & took it anyway (4) Negligently He should have been aware (as a reasonable person would have). Dont need to prove mens rea. (5) Strict Liability No mens rea necessary. Best standard for prosecution. Model Penal Code 2.02(2) Culpability Definitions
PURPOSELY (Highest level of mens rea) KNOWINGLY Circumstance he is aware of such circumstances or hopes & believes they exist he is awarethat such circumstances exist he consciously disregards a substantial & unjustifiable risk that the material element exists (Using reasonable person standard we think you were aware) Result it is his conscious objectto cause such a result he is aware that it is practically certain that his conduct will cause such a result he consciously disregards a substantial & unjustifiable risk that the material element will result from his conduct. Conduct it is his conscious object to engage in conduct of that nature. he is aware that his conduct is of that nature Awareness: Actor is aware that his conduct disregards a risk. (aware of conduct, not of drugs themselves, for example.

RECKLESSLY (The lowest standard requiring mens rea. it is the default if a standard is not mentioned in the law)

NEGLIGENTLY

a reasonable person would be aware of a substantial & unjustifiable risk that the material element exists

a reasonable person would be aware of a substantial & unjustifiable risk that the material elementwill result from his conduct.

MISTAKE

-Can apply the mistake doctrine only to those elements where there is a mistake. 1. Mistake of Fact He thought the umbrella was his. 2. Mistake of Governing Law He thought you could take any umbrella (He didnt realize it was against the law). (See US v. Baker) 3. Mistake of Non-Governing Law Mistake of a law that is not the main law in question. (E.g. knew about the law against theft of umbrellas, but didnt know about law that made all umbrellas property of the state). (See People v. Bray; Regina v. Smith) -#1 & #3 can be used as defenses; #2 is never a viable defense. ***** People v. Ryan (COA NY 1993) Re: law making it a felony to knowingly & unlawfully possesses 625 milligrams of a hallucinogen. Issue: Must the defendant know the weight of the material possessed? Held: Yes. The purpose of the knowledge requirement is to avoid over-penalizing someone who unwittingly possesses a larger amount of a controlled substance than anticipated. Order reversed & indictment dismissed. ***** State v. Lima (RI 1988) - Defendant was convicted of putting child into a tub of scalding water. The trial judge committed an error in refusing to instruct the jury that an intentional act is required to convict under the statute. State v. Guest (Alaska Sup. Ct. 1978) Does an honest & reasonable mistake of fact regarding a victims age serve as a defense to a charge of statutory rape? Yes. To refuse such a defense would be to impose criminal liability w/o any criminal mental element. Model Penal Code 2.04(2): deals specifically with the problem of mistake & grading. The defense of ignorance or mistake 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 & degree of the offense. ***** Mistake of Fact Defense (From the common law, but now in MPC) if the defendant proves that, because of a mistake of fact, he didnt possess the mens rea, then he is not guilty. This is an affirmative defense in that it allocates the burden of production (not proof) to the defendant. ***** People v. Bray (COA Cal. 1975) RE: Mistake of Non-Governing Law Appeal of a conviction for being a felon in possession of a concealable firearm. Man didnt know that he was a felon. Issue: Does the statute require proof of the defendants knowledge of his felony status? Held: Yes. Instructions on this matter should have been given. Regina v. Smith (Brit. 1974) RE: Mistake of Non-Governing Law Court dismissed the charge of damaging the property of another on the ground that the prosecution had not proven that the defendant did so intentionally. ***** th Cir.) - RE: Mistake of Governing Law US v. Baker (5 Appeal of a conviction for trafficking in counterfeit goods. Issue: Should the jury have been told that an element of that offense is knowledge of the criminality of the conduct? Held: No. We must distinguish between two different situations: (1) that in which the defendant lacks the mental state required for commission of the crime and thus has a valid defense; and (2) that in which the defendant still had whatever mental state is required for commission of the crime and only claims that he is unaware that such conduct was proscribed by criminal law, which isnt usually recognized as a defense. Idea: A defendant cant avoid prosecution by simply claiming that he hasnt brushed up on the law. Mistake of Governing Law Is no defense where governing law means the definition of the offense committed. On this principle, the defendant may be acquitted for ignorance that conditions specified in the definition were present; but may not be acquitted merely because she didnt know that such conditions constituted defining elements of a proscribed offense.

Hopkins v. State (Md. 1950) Upheld a conviction for violating the law making it unlawful to erect a sign aiding in the solicitation of marriages, despite the fact that the attorney general told the defendant that it was OK. Idea: Ignorance of the law ordinarily does not give immunity from punishment for a crime. (D could have argued mistake of non-governing law: He didnt know that the AG couldnt make pronouncements of law.) In considering the mistake defense, we must distinguish between: (1) Where the D lacks the mental state required for commission of the crime and thus has a valid defense, and (2) That in which the D still had whatever mental stated is needed for commission of the crime & only claims that he was unaware that such conduct was proscribed by law not a recognized defense. (To allow an ignorance-ofthe-criminal-law defense would allow it to be a shield for the guilty because it is hard to refute & would require farreaching inquiries). Misdemeanor Less harmful offenses than felonies. Generally, anything punishable by less than 1 year in prison. HOMICIDE -Most states have not adopted the MPC definition of homicide. -Law has developed through the common law. MURDER Intentional Unintentional (1) Intentional Murder (p.363-79) (MPC 210.2) (2) Unintentional Murder (Felony Murder Rule) (MPC 210.2(1)(b)) MANSLAUGHTER (Homicide w/o Malice) (3) Intentional (Voluntary) Manslaughter (p. 380-402) (MPC 210.3(1)(b)) (4) Unintentional (Involuntary) Manslaughter (MPC 210.3(1)(a)) 210.4(1); 210.5

Summaries of the Case Law (1) Intentional Murder Malice aforethought required. Unjustified killing of a living human being manifesting: 1) Purpose to cause death; or 2) Intent to inflict serious bodily harm. (2) Unintentional Murder (Felony Murder Rule is a subset of this) Extreme recklessness with respect to a serious risk of harm to anothers life where the risky action manifests so unworthy or immoral a purpose as to suggest callous indifference to human life. Willingness to undertake even a very small risk of death where the risky conduct is so unworthy as to establish guilt of a serious felony. (3) Intentional (Voluntary) Manslaughter No malice. Intentional killing that is either committed in the heat of passion, caused by adequate provocation or is based on an honest but unreasonable mistake such as a wrong belief that the killing was necessary for self-defense. (Or diminished capacity) (4) Unintentional (Involuntary) Manslaughter Reckless manslaughter/negligent homicide. Homicide in which there is no intention to kill or do grievous bodily harm, but that is committed with criminal negligence or during the commission of a crime not included within the felony-murder rule.

INTENTIONAL HOMICIDE

A. Intentional Murder (Second Degree) Intent to kill establishes the malice aforethought necessary for murder. Need conduct & knowledge (that this is going to cause death) OR purpose (desire). Note: Intention is subjective, unlike recklessness (objective standard) MPC 210.2(1)(a) Both purposeful & knowing homicides are classified as murder (absent a justification or excuse). The prosecution must establish that the D engaged in conduct with the conscious objective of causing death of another or at least with awareness that death was practically certain to result. (The state of mind may be proved circumstantially See US v. Watson below). Transferred Intent A D is considered guilty. The intent to kill one person in transferred to the unintended killing of another person. If the defendant has completed the necessary actus reus, then the mens rea is transferred from the intended target to the victim. B. Premeditated Murder (First Degree) -Not just purpose & near-certainty (knowledge), but planning & desiring. The main factors to consider are the length of time involved & whether the actors blood is hot or cold. C. VOLUNTARY MANSLAUGHTER Differs from involuntary manslaughter in that it is intentional: the D has with knowledge or purpose killed another human rather than having done so with gross negligence or recklessness or merely with intent to commit another crime. The criminal law reduces the murder to voluntary manslaughter where there has been provocation that has caused the D to act in the heat of passion. Justifiable Act The act is completely OK & you are completely exonerated. Excusable Act The act may not be justifiable, but it is excusable. (morally bad, but understandable under the circumstances) Partial Justification Where you prove you didnt commit intentional murder, but merely intentional manslaughter. -It is unclear whether provocation is a partial justification or partial excuse. This makes it problematic to implement. Modern Provocation: Courts must find that a person: (a) Was provoked (subjective) (b) Was provoked in a way that a reasonable man would be (objective) -See MPC comments to 210.3 Views Regarding the Burden of Proving Provocation (vary by jurisdiction): 1-If the defendant merely says he was provoked, it is up to the prosecution to show that he wasnt 2-Some states have changed this to: The defendant must show provocation by a preponderance of the evidence. People v. Walker (COA Ill. 1965) One man came at others with a knife. The others knocked him out with a brick. One man took his knife & stabbed him. D contends that finding of murder should be dropped to voluntary manslaughter because he acted in hot blood. Court agreed & reduced crime. Some reasons to reduce an unlawful intentional killing from murder to manslaughter: -Provocation -In mistaken belief of self-defense -Where there was a real threat, but the D provoked the threat.

MPC Commentaries to 210.3 re: provocation: Provocation has 2 essential requirements: 1. Must be adequate (objective standard) it is if it would cause a reasonable person to lose self-control. Usually the provocation must arise from some action of the deceased. Physical attack usually suffices, mutual combat, witnessing adultery, unlawful arrest. Words alone do not amount to adequate provocation. 2. (Subjective) The D must have been provoked & have actually acted in response to the provocation. Reasons for Mitigation: 1. Partial Justification Where the provoked killer wrongly thinks he has a good reason to kill (e.g. excessive reaction to real threat), he deserves some punishment, but not as much as a unprovoked killer (retributivism). 2. Partial Excuse Where the actor is so enraged that his actions are slightly less voluntary. The killing is less ascribable to malevolent character (retributivism), and it is less deterrable (utilitarianism). Views on Burden of Proof: 1. (Old Common Law) Once the D comes forth with evidence of provocation, the prosecution must disprove provocation or heat of passion beyond a reasonable doubt. (This is the policy of the MPC). 2. (Most States) Require the D to prove EED (extreme emotional disturbance) as an affirmative defense, by the preponderance of the evidence. ADULTERY Rowland v. State (Miss. 1904) Man killed wife while firing at the man she was committing adultery with. Reduced from murder to manslaughter. Price v. State (Tex. Ct. App. 1885) Positive proof of the crime of adultery is not required. It may be established by circumstantial evidence. Where not witnessing it, but knowing it is happening, & in an overpowering passion kills the wrongdoer, the offense is reduced to manslaughter. Adultery in a Modern Context Generally allowed only where the killer discovers the spouse and lover in the act (or immediately before or after it), and kills immediately after the discovery. COOOLING TIME Ex Parte Fraley (Okla. COA 1910) Man killed person who had allegedly killed his son 9 months before. This was considered as too much time between the provocation & the killing. (Cites cases citing 4 hours and even 15 minutes as being enough to cool down) Ordinarily one day, or even a half day, is in law much more than a sufficient time for ones passion to cool. Court says that there is no excuse, let alone justification. State v. Gounagias (Wash. 1915) Rejected the idea of cumulative provocation based on anger. (Where people kept reminding him of the humiliation of his rape.) Such provocation is not sudden, uncontrollable anger. Rather it is evidence of brooding thought. -Provocation contains elements of both partial justification & partial excuse (e.g. hot blood = partial excuse, but not partial justification). Rule: Words alone cannot produce provocation. -But, this doesnt make sense from an honor code view (response to words may be justified) or they may put you out of your head, which produces an excuse. Exception Where the words give you information that if you had gotten in another way wouldve provoked (e.g. I just slept with your wife.) Provocation We ask 2 questions: 1. Would a reasonable person have been provoked? 2. Was the defendant actually provoked? -Provocation may only be an excuse/justification if the act happens immediately (more or less). Cumulative effect does not count as a provocation (see State v. Gounagias).

Adultery Treated as a provocation. (Note: One TX case did not allow the defense of provocation where the woman shot her husband. It only applied to men. MPC 210.3 Manslaughter A criminal homicide constitutes manslaughter when a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation. The reasonableness of such explanation shall be determined from the viewpoint of a person in the actors situation under the circumstances as he believes them to be. MODEL PENAL CODE RE: HOMICIDE (MPC ARTICLE 210) 210.1 Criminal Homicide: (1) is when a person purposely, knowingly, recklessly or negligently causes the death of another human. (2) Criminal homicide is murder, manslaughter or negligent homicide. 210.2 Murder: (Same as common law Intentional Murder) (1) Criminal homicide constitutes murder when: (a) it is committed purposely or knowingly; or (b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. This recklessness is presumed if the actor is engaged in or flight after an attempt to commit certain serious offenses. (Same as common law Felony Murder Rule) (2) Murder is a felony of the 1st degree can bring sentence of death. 210.3 Manslaughter: (1)(a) it is committed recklessly (Same as common law unintentional or involuntary manslaughter); or (b) it would otherwise be murder but there is an extreme emotional disturbance (EED) for which there is a reasonable explanation or excuse. The reasonableness is to be determined from the view of a person in the actors situation under the circumstances as he believes them to be. (Same as common law intentional or voluntary manslaughter) (2) Manslaughter is a felony of the 2nd degree. 210.4 Negligent Homicide (1) Criminal homicide constitutes negligent homicide when it is committed negligently (2) Negligent homicide is a felony of the 3rd degree. Mayes v. People Logic of distinction between intentional & unintentional murder. This case dealt with unintentional murder. Man threw a glass at his wife who was holding an oil lamp. He had already been angry & throwing things. Oil lamp burst & woman caught fire & died. He had a bad disposition (mens rea Abandoned & malignant heart Common Law A heart void of social duty.), but probably didnt intend to kill his wife. Not intentional murder because we cant tell he intended to kill. -Abandoned & malignant heart is a common formulation of the state of mind necessary to establish unintentional murder. Self-Defense In some states provocation or an honest mistake that self-defense is needed is a complete justification. (e.g. case where a locked out husband breaks in window, wife thinks he is a rapist & shoots him.) -Some states allow a partial defense where there is a wrong belief in the need for self-defense that is unreasonable (intentional murder is dropped to intentional manslaughter) State v. Williams American Indian family didnt take child to doctor for fear the child would be taken away. There was mens rea, not intent. It was either recklessness or negligence. This is unintentional manslaughter. Felony Murder Rule: Falls under unintentional murder & not unintentional manslaughter because the defendant has shown indifference to human life & malice. Rationales: (1) The independent felony establishes that the defendant acted with the sort of mens rea that would otherwise establish murder liability gross recklessness or wanton indifference. (2) A person who has proved

himself a felon deserves to be held strictly liable. (3) It will deter prospective criminals from committing the felony. (4) Will induce those who will commit felonies to take pains to commit those felonies safely. -Common felonies that include the rule are robbery, burglary, rape & auto theft. Unintentional Manslaughter: Anything that caused death without intent or malignant heart & not in commission of a felony. Manifests only recklessness or negligence. CLASS FINAL WILL DEAL WITH COMMON LAW & MPC RE:HOMICIDE (KNOW HOW THEY ARE THE SAME & DIFFERENT) MPC 210.2(1)(a): Intentional Murder How different from common law: 1. Terminology no mention of malice aforethought; 2. Says nothing about premeditated murder doesnt distinguish between someone who plans & someone who doesnt 3. No mention of intent to inflict serious bodily harm these are not considered intentional murder by the MPC. MPC 210.3(1)(b): Intentional Manslaughter -For acts under extreme emotional disturbance. Reasonableness standard for actor in circumstances as he believes them to be. -Different from common law as it does not have the objective person standard (only views it subjectively from the person as they saw the situation.) -Common law distinguishes between (1) provocation & (2) no provocation but there is a mistake (e.g. thinking it was self-defense, which was intentional but not murder). MPC only considers (1) provocation where there is extreme emotional distress. MPC does not consider a self-defense mistake here. MPC 210.2(1)(b): Unintentional Murder -includes common law felony-murder rule -MPC adds word extreme to indifference to the value of human life -Common law distinguishes between extreme recklessness which is unintentional murder & recklessness which is unintentional manslaughter. MPC eliminates the distinction between types of recklessness. MPC 210.3(1)(a): Unintentional Manslaughter -Common law has reckless killing & negligent killing. MPC doesnt. MPC 210.4(1): Negligent Homicide -Exactly the same as common law. ATTEMPT Why Punish Attempt?: Retributivist Theories -Because the act manifests bad character -If the D does all he can to cause harm, why should the failing of his plan absolve him? -But, there is worry that Ds will be punished w/o having done anything wrong Why Punish Attempt?: Utilitarian Theories -Because the attempters action, though harmless, proves that he is dangerous -Punishing attempters maximizes deterrence. How the Criminal Law Resolves This: The criminal law tends to compromise by: (a) Punishing attempts somewhat less than completed crimes (b) Preventing punishment for mere thought or bad character by stressing the need for some significant conduct *** US v. Morales-Tovar (WD Tex. 1999)

D was charged with violating US statute making it illegal for a deported person to enter or attempt to enter the US w/o permission. Trial court said that attempt under this statute was a specific intent crime. The COA said that it was general intent. THE ACTUS REUS OF ATTEMPT The Main Common Law Actus Reus Tests Re: Attempts 1. Proximity Test: When the conduct is close enough to completion (see below). At common law there was no clear line to determine adequate proximity. 2. Unequivocally Test: When the D has done something that indicates that he had a fully developed purpose to commit the crime. (This includes a mens rea element as well.) People v. Murray (Calif. 1859) (PREPARATION V. ATTEMPT) Re: Attempt to have an incestuous marriage. Between preparation for the attempt and the attempt itself, there is a wide difference. Prof. George Fletcher: The only reason we require offenders to act on their intentions is to make sure that the intention is firm and not merely fantasy. Subjectivists, however, reject the idea that an act is necessary. They want to focus on the actors criminal intent. Preparation/Attempt Boundary: Generally, the person who has engaged only in preparatory activity isnt criminally liable, while the person who has gone beyond the mere preparation may be charged with an attempt. But, how to draw the line. -Mistake of fact re: a crime constitutes attempt (e.g. shooting mannequin that you thought was a person). Mistake of law (legal impossibility) may not be an attempt. -At common law where the means are completely unreasonable to achieve the offense (attempting to kill with a toy gun), there will be no prosecution. COMMON LAW MENS REA RE: ATTEMPT Attempt liability requires that the defendant exhibit: 1. Purpose with respect to any conduct elements of the crime, and 2. Purpose or possibly knowledge with respect to any result element, and 3. Something less (recklessness or possibly negligence) re: the circumstances -Once some harm is done the common law doesnt allow the defense of renunciation. 3 Types of Attempt at Common Law: 1. When the person has almost fully completed the offense & is stopped at the last second (e.g. police come just as he is about to shoot). At common law there was no clear line to determine adequate proximity. 2. Where there is a mistake (luck, chance: Defendant shoots at a mannequin, not a man). Mistake of fact re: a crime constitutes attempt (e.g. shooting mannequin that you thought was a person). Mistake of law (legal impossibility) may not be an attempt. 3. Reasonability: Person wanting to commit an offense couldnt possibly cause harm. At common law where the means are completely unreasonable to achieve the offense (attempting to kill with a toy gun), there will be no prosecution. Mistake of Fact Mistake of Law MODEL PENAL CODE Model Penal Code 5.01: Criminal Attempt: RE: Attempt Doesnt exonerate the D Exonerates the D RE: Completed Offense Exonerates the D Doesnt exonerate the D

(1) Definition of Attempt: A person is guilty if, acting with the kind of culpability otherwise required for commission of the crime, he: (a) Purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or (this subsection addresses the mens rea required with respect to the conduct of the actor or the attendant circumstances of the event) (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such a result; or (this section concerns the mens rea required for the results of the action taken) (c) Purposely does or omits to do something constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. The MPC drafters rejected the following lines 1. Physical Proximity Test Directly tending toward the completion of the crime. 2. Dangerous Proximity Doctrine The greater the gravity & probability of the offense. 3. Indispensible Element Test Emphasizes any indispensable aspect of the criminal endeavor over which the actor has not yet acquired control. 4. Probable Desistance Test If in the natural course of events, the conduct will result in the crime intended. 5. Abnormal Step Approach If the conduct goes beyond the point where a normal citizen would think better of his conduct & desist. 6. Unequivocally Test When the actors conduct manifests an intent to commit a crime. -The drafters of the MPC ultimately agreed that what was needed (for actus reus) was: (1) Criminal Purpose (2) An act that was a substantial step in a course of conduct designed to accomplish a criminal result. To be substantial such an act must strongly corroborate criminal purpose: MPC 5.01(2): The following shall be strongly corroborative of the actors criminal purpose (Constituting a Substantial Step) (a) lying in wait (b) enticing or seeking to entice the contemplated victimto go to the place contemplated for its commission (c) reconnoitering the place contemplated (d) unlawful entry of a structure (e) possession of materials to be employed in the commission of the crime, that are specifically designed for such unlawful use or which serve no lawful purpose (f) possession, collection or fabrication of materials to be employed in the commission of the crime (g) soliciting an innocent agent Idea: We punish attempts because they not only manifest intent to do harm, but also because they erode the public sense of security. (Thus, they are not inchoate) GOOD WAY TO ANALYZE THE MPC & ATTEMPT: Step 1: Consider whether the conduct has been completed, then Step 2: Consider whether youre dealing with a conduct offense or a result offense. MPC 5.01(1)(c): Applies to incomplete attempts MPC 5.01(1)(a & b): Apply to complete offenses & the actor could have established the full rime MPC 5.01(1)(a): Deals with conduct offenses MPC 5.01(1)(b): Deals with result offenses (e.g. murder) MPC 5.05(2) Mitigation: If the particular conduct charged to constitute a criminal attempt, solicitation or conspiracy is so inherently unlikely to resultin the commission of a crime that neither such conduct nor the actor presents a public dangerthe court shall exercise its poser under 6.12 to enter judgment & impose sentence for a crime of lower grade or, in extreme cases, may dismiss the prosecution. SOLICITATION

People v. Lubow (COA NY 1971) Re: Solicitation of a credit scam Basic definition of solicitation is that w/intent that another person shall engage in conduct constituting crime, the accused solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct. MPC 5.02: Criminal Solicitation: (1) Definition: If w/the purpose of promoting or facilitating its commission he command, encourages or requests another person to engage in specific conduct that would constitute such crime. (2) Uncommunicated Solicitation: It is immaterial that the actor fails to communicate with the person he solicits to commit a crime if his conduct was designed to effect such communication. (3) Renunciation of Criminal Purpose: Is an affirmative defense if the person persuades the other person not to commit the crime or otherwise prevents the commission of the crime under circumstances manifesting a renunciation of his criminal purpose. Solicitation v. Attempt: For purposes of grading, the MPC treats solicitation the same way as it treats attempt. Soliciting a crime results in the same penalty as completing that particular crime, except that committing a felony of the 1st degree is punishable as a felony of the 2nd degree. (MPC 5.05(1)) -The MPC position is that the D can be punished for either the solicitation or the attempt, but not both. (MPC 5.05(3)) State v. Davis (Mo. 1928) Re: Plans to kill a womans husband for insurance $. The court found that D had solicited a crime, but did not cross the line from preparation to attempt. IMPOSSIBILITY Legal Impossibility: Where the act completed would not be criminal. (Not a crime to attempt such things.) Examples: -A person accepting goods which he believes to have been stolen, but which were not in fact stolen goods, is not guilty of an attempt to receive stolen goods. -An accused who offers a bribe to a person believed to be a juror, but who is not a juror, is not guilty of an attempt to bribe a juror. Rationale: If none of the consequences which the D sought to achieve constitute a crime, surely his unsuccessful efforts to achieve his object cannot constitute a criminal attempt. Factual Impossibility; Where the basic or substantive crime is impossible of completion simply because of some physical or factual condition unknown to the D. (Considered an attempt.) Examples: -The picking of an empty pocket -Where D shoots into the intended victims bed, believing he is there, when in fact he is elsewhere. -A criticism of common law tests of impossibility is that their application depends on arbitrarily selecting one among many correct descriptions of the Ds act. US v. Sobriliski (8th Cir. 1997) Man arrested for selling fake drugs to an undercover officer. He appealed on the ground that it was an unpunishable impossible attempt. He testified that he knew he didnt have real drugs. The court found otherwise & affirmed his conviction ruling that impossibility is no defense to a charge under of attempting to distribute a controlled substance. DEFENSES SELF-DEFENSE -Common Law: Self-Defense is considered a full justification, not an excuse.

Justified Self-Defense (Common Law): When a victim uses reasonable force against an assailant when he reasonably believes: (a) he is in immediate danger of unlawful bodily harm, and (b) the use of such force is necessary to avoid the danger. -Proportionality is necessary. Problematic Issues: 1. Immediacy: Critique: Why should it matter whether harm will occur immediately or in a little while? -A: If not immediate, person can find another way to cope with it -But, may not have a later chance to defend self (E.g. battered woman, hostage) 2. Necessity: Division between US & UK jurisprudence UK Force is necessary only where the victim cant retreat (except for the home) US Doesnt always require the victim to retreat (& in the home, one can often use disproportionate force.) Victim: A person who provoked a response cant use the defense of self-defense (because he is not a victim). But determining who started it is tough. Reasonable Amount of Force (Common Law): Objective standard based on the characteristics of that type of person in that situation. But, subjectively, the person must have actually believed force was necessary. People v. La Voie (Colo. 1964) When a person has reasonable grounds for believing, and actually believes, that danger of his being killed, or of receiving great bodily harm is imminent, he may act on such appearances & defend himself, even to the point of taking life where necessary. This applies even if the appearances were false or mistake as to the extent of the real or actual danger. -Defensive force justifications rely on the same balancing of evils that is the basis of the lesser evils defense. -But self-defense is unique in that the actor makes the justification at a moment when he is in a difficult position. So, courts are liberal w/excuse provisions. Mistake: A mistaken belief that force was necessary will: (a) When the mistake is reasonable full defense of justified self-defense (b) When the mistake is unreasonable Partial excuse (reduced from murder to manslaughter) Self Defense: is a defense to any violent crime, not just murder. But the partial excuse can only be used when charged with murder. Mistaken Self-Defense: Usually allowed if the belief is reasonable. But, in some jurisdictions it would be considered an imperfect self-defense which reduced murder to manslaughter. -Can use the self-defense defense where she accidentally harms an innocent bystander in defending herself (unless she is reckless or negligent). MODEL PENAL CODE MPC 3.04 Use of Force in Self-Protection (1) Use of force is justifiable when the actor believes that such force is immediately necessary for the purposeof protecting himself against the use of unlawful force by such other person on the present occasion. (2) Limitations (A)The use of force is not justified (i) to resist arrest by a police officer. (ii) to resist force used by the occupier of propertywhere the actor knows that the person using the force is doing so under a claim of right to protect the property.

(B) Use of deadly force not justified unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; not is it justifiable if: (i) the actor provoked the use of force (ii) the actor can retreat or surrender possession of a thing (dont have to retreat from home or work) State v. Norman (NC 1988) Cannot slay your abusive husband when he is sleeping, because no harm is imminent. People v. Goetz (COA NY 1986) Man shoots youths who were mugging him. A person may use force to the extent

that he reasonably believes such to be necessary to defend himself or a 3rd person from imminent use of unlawful force by another. (Objective notion of reasonableness)
Common Law v. MPC 1. In the MPC there is no requirement that a belief that such force is necessary be reasonable. (MPC uses a subjective standard; Common Law is objective). This is considered scary as it may warrant killing by the confused. But 3.09(2)&(3) (see below) limit the right where the defendant is reckless. 2. MPC uses the UK rule re: retreat. Must retreat rather than use deadly force (except at home & work). 3. MPCs immediately necessary replaces the common laws immediate danger & necessary force. This may allow a person who is not in immediate danger to act. Rather it allows self-defense where the ability to use selfdefense is suddenly present, but may not be later (e.g. battered wife killing sleeping husband; kidnapped person suddenly having access to a gun). MPC 3.09(2): When a person is charged with a negligence offense & wants to argue self-defense & he is mistaken re: the need for self-defense, then his mistake must be reasonable. An unreasonable mistake will not provide a defense. This means that if his mistake was negligent he can still be found guilty of an offense that requires negligence. Same with recklessness. But, for purposely or knowingly crimes any belief will do.