Attempt in Criminal Law

Attempt - Common Law

1. General Principles
a. An attempt occurs when a person, with the intent to commit a crime, performs a substantial step, beyond mere preparation towards the commission of the offense
i. At common law, attempt requires a specific intent to commit the target offense
b. A criminal attempt needs a “target” offense because it can exist only in connection with another crime
c. A defendant cannot be convicted both of the target offense and an attempt to commit it.
2. Elements of Attempt
a. Mens Rea
i. Actor’s conduct which constitutes the attempt must be intentional
1. Knowledge is not enough
ii. Actor must have committed that act with the specific intention of committing the completed offense.
iii. For attendant circumstances, most jurisdictions follow the MPC Approach:
1. For “attendant circumstance” elements, it is sufficient that the defendant possessed the same degree of culpability required to commit the target offense.
a. Same mens rea requirement as for the attendant circumstance of the completed crime
b. Actus Reus
i. Mere preparation is not sufficient to constitute an attempt to commit a crime.
1. Semantical distinction between preparation and attempt is one incapable of being formulated in a hard and fast rule.
2. Preparation alone is not enough, there must be some appreciable fragment of the crime committed.
3. Courts apply different tests to determine whether an act is mere preparation or an attempt
ii. Dangerous Proximity Test
1. A person is guilty of an attempt when her conduct is in dangerous proximity to success or when her act is so near to the result that the danger of success is very great.
2. Three factors considered in determining dangerous proximity
a. Nearness of the danger
i. If the accused intended to rely upon his own hands must have had a present intent to accomplish the crime without much delay, at a time and place where he was able to carry it out.
ii. If the offense is to be committed by soliciting someone else, the solicitation must be alleged as one of the overt acts.
b. Greatness of the harm
c. Degree of apprehension felt by the victim
i. Victim needs to be there in order to feel apprehension
iii. Probable Desistance Test
1. The actus reus requirement for attempt is satisfied where “the actor had reached a point where was unlikely that he would have voluntarily desisted from his efforts to commit the crime.” (Point of no return)
2. Whether anyone who went so far would stop short of the final step?
iv. Res Ipsa Loquitur Test
1. An attempt occurs when a person’s conduct, standing alone, unequivocally (with certainty) manifests a criminal intent.
a. Ignoring any statements the defendant made regarding intent
b. “Silent film” analogy
3. Special Defenses: Impossibility
a. Impossibility Analysis
i. Would the defendant’s actions, if the circumstances are as she believes them to be, constitute a crime under the existing criminal laws?
1. If no, this is a case of pure legal impossibility, and the defendant is not guilty of attempt
2. If yes, go to Step 2
ii. If the defendant’s goal is illegal, but the commission of the offense fails due to a factual mistake, does the factual mistake relate to the legal status of an attendant circumstance?
1. If yes, this is a case of hybrid legal impossibility, which is a defense to attempt in a minority of jurisdictions
2. If no, this is a case of factual impossibility, which is not a defense to attempt
b. Types of Impossibility
i. Factual Impossibility
1. Exists when a person’s objective is prohibited by the criminal law, but a circumstance unknown to her prevents her from bringing about that objective.
2. NOT a defense to attempt
3. Examples:
a. D points an unloaded gun at the victim and pulls the trigger, believing the gun was loaded
b. A pickpocket puts hand into victim’s empty pocket, believing there was money in the pocket
c. D shoots into an empty bed, believing that the victim is sleeping there
ii. Legal Impossibility
1. Pure Legal Impossibility
a. When the defendant’s actions, if the circumstances are what he believes them to be, would not be a crime
i. A belief that a non-crime is a crime does not make it an offense
b. IS a valid defense to attempt
i. But this pretty much never gets to a court in real life
c. Examples:
i. Right after Prohibition, D attempts to sell bootleg liquor illegally, but it is no longer illegal.
ii. D puts hand on woman’s shoulder, thinking it is rape, but it is not conduct within definition of rape.
2. Hybrid Legal Impossibility
a. Defendant’s goal is illegal, but commission of the offense is impossible due to a factual mistake regarding the legal status of some attendant circumstance in the crime.
i. Goal is illegal
ii. Focus on whether factual mistake is in regards to an attendant circumstance or not.
b. WAS a valid defense at common law, but overwhelming legal trend is to abolish it
c. Examples
i. D receives unstolen property believing it to be stolen, where the receipt of “stolen property” is an attendant circumstance in the crime
ii. D offers a bribe to a juror who is not a juror, where the statute prohibits the bribery of “jurors.”
iii. D shoots a corpse believing that it is alive, where the statute prohibits the killing of a “human being.”
4. Special Defenses: Abandonment
a. The defense only applies if the defendant (1) voluntarily and (2) completely abandons her plans.
b. Analysis
i. Step 1 - Voluntarily
1. Abandonment is voluntary if it results from a genuine change of heart.
2. It is not voluntary if it is caused by unexpected resistance, the absences of an instrument necessary to the crime’s completion, or other circumstances that increase the likelihood of arrest or the unsuccessful completion of the crime.
ii. Step 2 - Complete Abandonment
1. The abandonment is not complete if the defendant merely postpones her plans until a better opportunity presents itself.
2. Majority Rule: Once defendant has committed the last act necessary to complete the crime, or has already caused serious harm, then there can be no abandonment defense.




 
Attempt - MPC

1. General Principles
a. An attempt occurs when a person, with the intent to commit a crime, performs a substantial step, beyond mere preparation towards the commission of the offense
b. A criminal attempt needs a “target” offense because it can exist only in connection with another crime
c. A defendant cannot be convicted both of the target offense and an attempt to commit it.
2. Elements of Attempt
a. Mens Rea
i. When the target offense contains a conduct element, the defendant must purposely engage in conduct that would constitute the target offense
1. i.e. get into car while drunk, put key in ignition, and then arrested
ii. When the target offense contains a result element, the defendant must purposely attempt to cause the result OR act with knowledge that the result will occur.
iii. For “attendant circumstance” elements, it is sufficient that the defendant possessed the same degree of culpability required to commit the target offense.
1. Same mens rea requirement as for the attendant circumstance of the completed crime
b. Actus Reus
i. A person commits criminal attempt who, acting with the kind of culpability otherwise required for the commission of the crime, he:
1. Purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
2. 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 result without further conduct on his part; or
3. Purposely does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime.
ii. Substantial Step
1. The defendant must have done or omitted to do something that constitutes a “substantial step in a course of conduct planned to culminate in his commission of the crime.” MPC 5.01(1)(c)
a. Emphasizes what the actor has already done, as opposed to what remains to be done to complete the offense.
b. “Substantial Step” standard is intended to broaden the scope of attempt liability
2. Conduct is not a substantial step “unless it is strongly corroborative of the actor’s criminal purpose.”
a. Conduct must match the intent/purpose
b. Little bit of blending into mens rea territory, but should still be analyzed separately.
c. To be “strongly corroborative,” the actor’s conduct, considered in light of the circumstances, must add significantly to other proof of her criminal intent, such as a confession or other incriminating evidence.
3. 5.01(2) provides a list of non-exclusive factual circumstances in which a defendant’s conduct, if strongly corroborative of criminal purpose, may be sufficient as a matter of law
a. Lying in wait, searching for or following the contemplated victim of the crime;
b. Enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;
c. Reconnoitering the place contemplated for the commission of the crime;
d. Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;
e. Possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances;
f. Possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;
g. Soliciting an innocent agent to engage in conduct constituting an element of the crime.
3. Special Defenses: Impossibility
a. Pure legal impossibility is a defense
i. The result desired or intended by the actor must constitute a crime
b. Factual and hybrid impossibility is not a defense
4. Special Defenses: Abandonment
a. “Renunciation of criminal purpose” is a valid defense
b. Analysis: A person is not guilty of attempt if:
i. Step 1: They abandon their effort to commit the crime or otherwise prevents its commission; and
ii. Step 2: Their conduct manifests a “voluntary renunciation” of their criminal purpose; and
1. Renunciation is not voluntary “if it’s motivated in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, that increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose.”
iii. Step 3: Their conduct manifests a “complete renunciation” of their criminal purpose.
1. Renunciation is not complete “if it is 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.”

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Criminal Homicide in Criminal Law

Common Law - Criminal Homicid

Criminal Homicide Analysis - Common Law
1. Did the defendant commit the actus reus of murder
a. Voluntary act or omission
b. Social Harm (killing of another human being)
c. Causation (actual and proximate cause)
2. Mens rea for murder?
a. Intent to kill a human being, which includes awareness that death would result from one’s actions
b. Intent to cause grievous bodily harm, which includes awareness that grievous bodily harm would result from one’s actions
c. Depraved-heart murder: Extreme recklessness regarding homicidal risk.
i. Depraved heart murder consists of “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”
d. Intent to commit a felony, strict liability for homicide during commission of a felony
3. Is it first or second degree murder?
a. First degree murder requires “malice aforethought:
i. Intent to kill;
ii. Deliberation; and
1. Focuses on the quality of the thinking process
2. To deliberate is to measure and evaluate the major facets of a choice or problem
iii. Premeditation.
1. Focuses on the quantity of time
2. Killing is done after a period of time for prior consideration
a. Duration may be a short period of time
b. Any interval of time between the forming of the intent to kill and the execution of that intent, which is sufficient duration for the accused to be fully conscious of what he intended is sufficient
iv. Premeditation and deliberation characterize a thought process undisturbed by hot blood
b. Felony Murder Rule: First degree murder also includes homicide that occurs during the commission of a specifically listed felony. (See Felony Murder Rule Limitations Analysis)
i. A defendant is guilty of murder if death results from conduct during the commission or attempted commission of any felony, even where the defendant lacks the culpability required for murder.
c. All other types of murder are second-degree murder (Intentional killings not premeditated and deliberate, intent-to-inflict-grievous-bodily-injury killings, depraved heart killings)
4. Should the crime be mitigated to voluntary manslaughter? (“Heat of Passion” Excuse)
a. There must be adequate provocation
i. For provocation to be adequate, it must be “calculated to inflame the passion of a reasonable man and tend to cause him to act in the moment from passion rather than reason.”
1. Reasonable Man - Subjective Characteristics?
a. Determining the gravity of the provocation
i. The jury can take into consideration all those factors which in their opinion would affect the gravity of taunts and insults when applied to the person to whom they are addressed
b. Assessing the level of self-control to be expected of the “reasonable man”
i. The “reasonable man” is a “person having the power of self-control to be expected of an ordinary person of the sex and age of the accused.”
ii. Girouard v. State, Maryland CoA 1991: Words alone are not sufficient provocation
b. The killing must be in the heat of passion
c. There must be a sudden heat of passion (no cooling time)
d. There must have been a causal connection between the provocation, the passion, and the homicide.
5. If the defendant committed the actus reus of murder, but did not act with the mens rea required for murder, is the defendant guilty of involuntary manslaughter?
a. The relevant standard is gross negligence
i. Defendant should have known the risk of death, but didn’t
ii. Failure to do so was a gross deviation from the standard for conduct of a reasonable person

Common Law Felony Murder Limitations - Analysis
1. Does the jurisdiction apply the agency approach or the proximate causation approach to felony murder?
a. Under the agency approach, a felon can be liable only for any deaths caused by her accomplices.
b. Under the proximate causation approach, a felon can be liable for a death caused by a non-felon if the felon set in motion the acts that resulted in the victim’s death.
2. If a first-degree murder statute criminalizes the commission of murder in the perpetration of the specified felonies in the statute, then any murder that occurs during the commission of one of those felonies is first degree murder.
3. If the felony does not appear in the first-degree murder statute, then ask: Is the felony an inherently dangerous felony?
a. Test
i. Look at elements of the felony in the abstract, not the particular facts of the case
ii. Whether the felony by its nature cannot be committed without creating a substantial risk that someone will be killed?
1. Or, is there any way the felony can be committed without a substantial risk of death?
b. If yes, proceed to Step #4
c. If no, the defendant is not liable for felony murder
4. If the felony does not appear in the first-degree murder statute, but it is an inherently dangerous felony, then ask: Does the merger limitation apply?
a. Merger limitation: felony murder rule is inapplicable to felonies that are an integral part of the homicide and which evidence shows to be an offense included in fact within the offense charged.
i. Under the merger doctrine, the defendant is not liable for felony murder if the felony is:
1. An “assaultive” felony (defined as “a felony that involves the threat of immediate injury”) and
2. Its only purpose is to harm the victim
b. If no, the defendant is liable for second-degree felony murder
c. If yes, the defendant is not liable for felony murder






 
MPC - Criminal Homicide

MPC Criminal Homicide Analysis
“A person is guilty of criminal homicide if they purposely, knowingly, recklessly, or negligently causes the death of another human being.”
1. Murder
a. When the actor kills another:
i. Purposely or knowingly; or
ii. Recklessly PLUS under circumstances manifesting extreme indifference to the value of human life. Section 210.2(1).
1. MPC’s Felony Murder Approach: Such recklessness and indifference are 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
a. Robbery
b. Rape or deviate sexual intercourse by force or threat of force
c. Arson
d. Burglary
e. Kidnapping
f. Felonious Escape
2. Defendant given opportunity to rebut this presumption.  Not a strict liability.
2. Manslaughter
a. A person is guilty of manslaughter if:
i. They recklessly kill another; or
1. No clear answer on how this is different from “recklessly under circumstances manifesting extreme indifference to the value of human life”
ii. Kills another person under circumstances that would ordinarily constitute murder, but where homicide is committed as the result of:
1. “Extreme mental or emotional” disturbance
2. For which there is a “reasonable explanation or excuse” for the disturbance,
a. Which is “determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.”
i. External circumstances have to be taken into account (person’s disability, etc)
ii. Idiosyncratic moral values are not to be taken into account (bigotry)
3. Differences from common law “Heat of Passion”
a. Does not require “adequate provocation”
b. No fixed category of adequate circumstances
c. No rigid cooling off rule
i. “Extreme emotional disturbance may be based upon a series of events, rather than a single precipitating cause.”
3. Negligent homicide
a. A criminal homicide is negligent homicide when it is committed negligently (gross negligence required)
b. “The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.”

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MPC - Elements of Criminal Statutes

MPC - Elements of Criminal Statutes

Components of a Criminal Statute
1. In general crime contains two components:
a. Actus reus
iv. Physical or external part of the crime
c. Mens rea
i. Mental or internal ingredient
2. Elements of Criminal Offenses
a. Mens Rea
b. Actus Reus
i. Voluntary Act (or Omission)
ii. Social Harm (conduct, result, attendant circumstances)
iii. Causation
1. Actual Cause (“Factual” Cause)
2. Proximate Cause (“Legal” Cause)

Contents
1. Breaking Down a Criminal Statute: Analysis
a. Page 16-17
2. Actus Reus
a. Page 18
3. Causation
a. Page 18-19
4. Mens Rea
a. Page 20-21

 
Breaking Down a Criminal Statute: Analysis
1. Identify the mens rea and the actus reus elements in the criminal statute
2. Label each actus reus element as “conduct,” “attendant circumstance” or “result.”
3. Figure out what the required mental state is for each of the actus reus elements (purposely, knowingly, recklessly, or negligently)
a. Purposely
i. Result or Conduct: “conscious object to engage in conduct of that nature or to cause such a result.”
ii. Attendant Circumstance: “is aware of the existence of such circumstances” or “believes or hopes they exist.”
b. Knowingly
i. Result: “Actor is aware that it is practically certain that his conduct will cause such a result.”
ii. Conduct or Attendant Circumstance: “is aware that his conduct is of that nature or that such attendant circumstances exist.”
c. Recklessly
i. “Consciously disregards a substantial and unjustified risk that the material element exists or will result from his conduct.”
1. “Substantial and unjustified”: considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.
ii. Defendant must be subjectively aware of the risk.
d. Negligently
i. Defendant “should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.”
ii. Defendant need not be subjectively aware of the risk. Defendant should have been aware of the risk.
4. Determine what the prosecution must prove by plugging specifics of the act element into the mental state definition.
a. *Culpability is required with respect to each material element of the offense.
b. WHEN NO MENS REA IN STATUTE, ALL LEVELS OF CULPABILITY ARE SUFFICIENT BESIDES NEGLIGENTLY

Examples:
Statute: requires defendant to “purposely break and enter into the dwelling of another with the purpose to commit a felony therein.”
1. Mens rea: “Purposely” and “purpose to commit a felony therein”
Actus reus: “break and enter into the dwelling of another”
2. Result/Conduct: “break” and “enter”
Attendant Circumstances: “dwelling of another”
3. “Break”: purposely
“Enter”: purposely
“Dwelling of another”: Purposely
4. Defendant had conscious object to break into the dwelling
Defendant had conscious object to enter into the dwelling
Defendant was aware it was a dwelling of another
Defendant’s conscious object was to commit a felony therein

Statute: prohibits “knowingly giving false information to any law enforcement officer with the purpose to implicate another.”
1. Mens rea: “knowingly” and “purpose to implicate another”
Actus reus: “giving false information to any law enforcement officer.”
2. Conduct: give information
AC: “false information” and “to a law enforcement officer”
3. Give: knowingly
False information: knowingly
Law Enforcement: knowingly
Implicate: purposely
4. Defendant was aware they were giving information
Defendant was aware the information was false
Defendant was aware the recipient was a police officer
Defendant’s conscious object was to implicate another


 
Actus Reus
1. Actus Reus Elements
a. Result Crime: Defined in terms of prohibited result.
i. Example: Criminal Homicide
b. Conduct Crime: Prohibit specific conduct, without requiring any particular result.
i. Example: Driving Under the Influence
c. Some offenses can have both conduct and result elements
i. Example: “Operating a vehicle in a reckless or culpably negligent manner, causing the death of another person.”
1. Conduct: Operating a vehicle
2. Result: Causing the death of another person
d. Attendant Circumstance: A fact or condition that must be present when the actor performs the prohibited conduct or causes the prohibited result.
i. Example: The house of another
2. Voluntary Act
a. Liability must be based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable
i. Not voluntary acts:
1. A reflex or convulsion
2. A bodily movement during unconsciousness or sleep
3. Conduct during hypnosis or resulting from hypnotic suggestion
4. A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual
3. Omissions: “Negative Acts”
a. General Rule: Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
i. The omission is expressly made sufficient by the law defining the offense; or
ii. A duty to perform the omitted act is otherwise imposed by law

Actus Reus: Causation
1. Actual Cause
a. But/For Rule
b. But for the defendant’s voluntary act or omission, would the social harm have occurred when it did?
2. Proximate Cause
a. Abolishes the varying and sometimes inconsistent proximate causation factors developed by the common law.
b. For crimes requiring Purpose or Knowledge:
i. Whether the result “involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a just bearing on the actor’s liability.”
ii. Generally, focused on foreseeability.
c. For crimes requiring Negligence or Recklessness:
i. Whether the result “involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a just bearing on the actor’s liability.”
ii. Generally, focused on foreseeability of probability of the harm


 
Mens Rea
1. Purpose of MPC is to “obliterate ill-defined, confusing common law language and concepts and replace them with four specifically defined hierarchal levels of culpability.”
a. Adopts the elemental definition of mens rea
b. Abolishes the distinction between general and specific intent
c. Adopts four carefully defined culpability terms, getting rid of all other mens rea terms used in criminal codes
2. Culpability is required with respect to each material element of the offense.
3. Four types of Mens Rea (For details, see Elements of  A Crime Analysis)
a. Purposely
b. Knowingly
c. Recklessly
d. Negligently
4. “Willful Blindness”
a. “When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person is aware of a high probability of its existence.”
i. Willful blindness to a fact is knowingly when what is involved is a matter of existing fact, but not when what is involved is the result of the defendant’s conduct.
5. Problems in Statutory Interpretation
a. MPC applies same interpretation as SCOTUS
b. The mens rea term at the beginning of a statute “goes all the way down” the statute and applies to all of the actus reus elements.
c. Mens rea only applies to what comes after it in the statute, not before it.
6. Strict Liability
a. MPC does not adopt strict liability, except for:
i. Violations: civil offenses subject only to a fine, no imprisonment or probation
ii. “Subject to an exception for ‘violations,’ no conviction may be obtained unless the prosecution proves some form of culpability regarding each material element of the offense.”
b. If MPC statute lacks a mens rea component, culpability required at minimum is “recklessness”
7. Mistake of Fact
a. The MPC adopts an elemental approach to all cases raising a mistake of fact question.
b. General rule: 
i. A mistake of fact is a defense if it negates the mental state required to establish any material element of the offense.
c. Exception:
i. Mistake of fact is not a defense if the defendant would be guilty of another offense had the situation been as he supposed. 
ii. In such a case, the defendant is liable for the other offense.
8. Mistake of Law
a. General rule: 
i. Unless the definition of a crime so provides, “[n]either knowledge nor recklessness or negligence as to whether conduct constitutes a crime or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense.”
ii. (Ignorance of the law is not an excuse, unless the definition of a crime provides otherwise)
b. Exception #1:
i. The defendant acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in:
1. A statute, judicial decision, administrative order or grant of permission; or
2. An official interpretation by a public official responsible for interpretation, administration, or enforcement of the law. 
ii. No defense: 
1. Reliance on one’s own interpretation of the law, even if the interpretation is reasonable.
2. Reliance on erroneous advice provided by a private attorney.
c. Exception #2. 
i. A mistake of law is a defense if it negates a material element of the offense or if the law expressly provides for a mistake-of-law defense. 

 

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Common Law - Elements of Criminal Statutes

Common Law - Elements of Criminal Statutes

Components of a Criminal Statute
1. In general crime contains two components:
a. Actus reus
i. Physical or external part of the crime
b. Mens rea
i. Mental or internal ingredient
2. Elements of Criminal Offenses
a. Mens Rea
b. Actus Reus
i. Voluntary Act (or Omission)
ii. Social Harm (conduct, result, attendant circumstances)
iii. Causation
1. Actual Cause (“Factual” Cause)
2. Proximate Cause (“Legal” Cause)

Contents
1. Breaking Down a Criminal Statute: Analysis
a. Page 7
2. Actus Reus
a. Page 8
3. Causation
a. Page 8-10
4. Mens Rea
a. Page 11-14

 
Breaking Down a Criminal Statute: Analysis
1. Mens Rea
a. General or Specific Intent
i. Rules of Thumb
1. If you see phrase “with the intent to” it is specific intent (NOT just “intentional” or “intentionally”)
2. “Known” or “known to be” is specific intent (NOT “knowingly”)
3. If a statute contains no mens rea terms, then the entire offense is either a general intent offense or a strict liability offense
2. Actus Reus
a. Conduct
i. Tend to be verbs.
b. Result
i. Tend to be verbs
c. Attendant Circumstance
i. Non-verbs

Examples:
Statute: Common law burglary is defined as “breaking and entering a dwelling house of another at nighttime with the intent to commit a felony therein.”
1. Mens Rea
a. “With the intent to commit a felony therein.”
i. Specific intent, “with the intent to”
2. Actus Reus
a. Conduct/Result
i. “breaking and entering”
b. Attendant Circumstances
i. “A dwelling house”
ii. “Of another”
iii. “At nighttime”

Statute: “Knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person.”
1. Mens Rea:
a. “Knowingly”
i. General intent
2. Actus Reus
a. Conduct
i. “Transfers, possesses or uses”
b. Attendant Circumstances
i. “Without lawful authority”
ii. “A means of identification”
iii. “Of another person”


Actus Reus
1. Actus Reus Elements
a. Result Crime: Defined in terms of prohibited result.
i. Example: Criminal Homicide
b. Conduct Crime: Prohibit specific conduct, without requiring any particular result.
i. Example: Driving Under the Influence
c. Some offenses can have both conduct and result elements
i. Example: “Operating a vehicle in a reckless or culpably negligent manner, causing the death of another person.”
1. Conduct: Operating a vehicle
2. Result: Causing the death of another person
d. Attendant Circumstance: A fact or condition that must be present when the actor performs the prohibited conduct or causes the prohibited result.
i. Example: The house of another
2. Voluntary Act
a. Implied element of all criminal statutes that a voluntary act is required
i. A voluntary act must be a willed movement or the omission of a possible and legally required performance.
ii. Part of actus reus, not mens rea
b. Voluntary Act vs. Mens Rea
i. “Mens rea” signifies the actor’s state of mind regarding the social harm of the offense.
ii. Voluntariness applies to the act that caused the social harm.
iii. Even when an offense does not contain a mens rea component, a voluntary act is still required for conviction.
3. Omissions: “Negative Acts”
a. General Rule: A person has no criminal law duty to act to prevent harm to another even if they can do so with no risk to themselves
b. Exceptions - A person can be criminally liable for failing to act where:
i. A statute imposes a duty;
ii. The person stands in a certain status relationship to another (i.e. parent/child);
iii. The person has assumed a contractual duty to care for another;
iv. The person has voluntarily assumed the care of another and secluded the helpless person as to prevent others from rendering aid; or
v. The person created a risk of harm to another.
c. Acts vs. Omissions
i. Barber v. Superior Court, California CoA 1983
1. Cessation of heroic life support measures is not an affirmative act but a withdrawal and omission of further treatment.

Actus Reus: Causation (Common Law)
1. Causation is an implicit element of ALL CRIMES.
a. Link between the voluntary act and the social harm.
2. Actual Cause
a. But/For Test
i. But for the defendant’s voluntary act or omission, would the social harm have occurred when it did?
1. If yes, the defendant is not the actual cause of the harm
2. If no, the defendant is the actual cause of the harm
ii. But/For Theories
1. Acceleration Theory:
a. Where the are two injuries/harmful conduct
b. But for the infliction of the second injury, would the victim have died when he died?
i. Contribution or aggravation without acceleration is not sufficient to establish causation.
2. Omission Theory
a. If there is an obligation to act and defendant fails to act, resulting in the social harm, they are the but/for cause
b. Substantial Factor Test
i. When two defendants, acting independently and not in concert with one another, commit two separate acts, each of which alone is sufficient to bring about the prohibited result.
ii. Defendant’s conduct is a cause-in-fact of a prohibited result if the subject conduct was a “substantial factor” in bringing about the said result.
3. Proximate Cause
a. “Proximate” or “legal” causation serves the purpose of determining who or what events among those that satisfy the but-for standard should be held accountable for the resulting harm.
b. In Cases of Intervening Causes:
i. When is the intervening conduct of a third party, the victim, or a natural force sufficiently out of the ordinary that it no longer seems fair to conclude the social harm was “caused” by the defendant’s conduct?
ii. Superseding cause is an intervening cause that breaks the causal chain.
c. Proximate Cause Factors Test
i. Foreseeability of the intervening cause
1. Responsive Intervening Cause
a. An act that occurs as a reaction to the defendant’s wrongful conduct
b. A responsive intervening cause does not relieve the defendant of criminal liability, unless the response was unforeseeable AND highly abnormal
2. Coincidental intervening cause
a. Does not occur in response to the defendant’s conduct but only places the victim in the “wrong place at the wrong time”
b. A coincidental intervening cause relieves the defendant of criminal liability unless the intervention was foreseeable.
ii. Apparent Safety Doctrine
1. When a defendant's “active force” has come to rest in a position of apparent safety, the court will follow it no longer
2. If the defendant’s “active force” has come to rest, but in a dangerous position creating a new or increasing an existing risk of loss, then the defendant may be held liable.
iii. Free, Deliberate, Informed Human Intervention
1. A defendant is more likely to be relieved of criminal responsibility in the case of a voluntary, knowing and intelligent, human agent than in the case of an intervention of a natural force or involuntary human actions.
iv. De Minimis Causes
1. Very minor but-for cause of harm is generally not legally responsible when there is a far more substantial cause to whom responsibility can be attached.
v. Omissions
1. Omissions rarely supersede an earlier wrongful act
vi. Intended-consequences doctrine
1. If an intentional wrongdoer gets what they wanted, they get the result the wanted in the general manner they wanted it, they should not escape criminal liability even if an unforeseeable event intervened.

 
Mens Rea: Common Law
1. “A guilty mind; a guilty or wrongful purpose; a criminal intent.”
a. Broad Meaning: A defendant is guilty of a crime if she commits the social harm of the offense with any morally blameworthy state of mind.
b. Narrow Meaning: A defendant is not guilty of an offense, even if she has a morally blameworthy state of mind, if she lacks the mental state specified in the definition of the crime.
2. General vs. Specific Intent
a. General intent: A crime with a mental state element that relates solely to the prohibited conduct or result.
i. Example: battery defined as “an intentional application of force upon another.”
ii. If a statute contains no mens rea terms, then the entire offense is either a general intent offense or a strict liability offense
b. Specific Intent: EITHER
i. Includes an intent or purpose to do some future act or to achieve some future consequence beyond the prohibited conduct/result under the actus reus of the offense.
1. Example: possession of marijuana with the intent to sell.
ii. Provides that the actor must be aware of an attendant circumstance.
1. Example: Intentional sale of obscene literature to a person known to be under the age of 18 years.
c. Rules of Thumb
i. If you see phrase “with the intent to” it is specific intent (NOT just “intentional” or “intentionally”)
ii. “Known” or “known to be” is specific intent (NOT “knowingly”)
3. Malice
a. Regina v. Cunningham, Court of Criminal Appeal, 1957
i. Malice is
1. An actual intention to do the particular kind of harm that in fact was done, or
2. Recklessness as to whether such harm should occur or not.
a. Does not require any ill-will towards the injured person
b. Subjectively aware of the risk of harm, and disregarded it
4. Intentionally
a. People v. Conley, Illinois Appellate Court 1989
i. “Intentionally or knowingly”
ii. It’s necessary for intent to cause the prohibited result, not just an intent to act.
iii. Because the offense is defined in terms of result, the State has the burden of proving beyond a reasonable doubt that the defendant either:
1. Had a conscious objective to achieve the harm defined (intent) OR
2. Was consciously aware that the harm defined was practically certain to be caused by his conduct (knowledge).
iv. Ordinary presumption that one intends the natural and probable consequences of his actions.
b. Transferred Intent
i. When a defendant intends to cause harm to one person but accidentally causes it to another, courts typically assert what has come to be known as the “transferred intent” doctrine. Only used for “intentionally” or “knowingly,” not “recklessly” or “negligently”.
1. The transferred intent doctrine transfers the defendant’s intent from the intended victim to the unintended victim
2. The doctrine does not transfer the intent to cause one type of social harm to another.
5. Knowingly and “Willful Blindness”
a. Willful blindness: “the case of the actor who is aware of the probable existence of a material fact but does not satisfy himself that it does not in fact exist.”
i. The inference of knowledge of an existing fact is usually drawn from proof of notice of substantial probability of its existence, unless the defendant establishes an honest contrary belief.
b. SCOTUS:
i. The defendant must subjectively believe there is a high probability that a fact exists, and
ii. The defendant must take deliberate actions to avoid learning of that fact.
6. Problems in Statutory Interpretation
a. Flores-Figueroa v. United States, SCOTUS 2009
i. The mens rea term at the beginning of a statute “goes all the way down” the statute and applies to all of the actus reus elements.
ii. Mens rea only applies to what comes after it in the statute, not before it.
b. Not all courts follow SCOTUS’s lead on modifying what comes after an intent.  Some state courts consider punctuation as indicating what is modified.
7. Strict Liability
a. Staples v. United States, SCOTUS 1994
i. Presumption against strict liability unless clear intent otherwise
1. General assumption that all statutes require mens rea, unless clearly otherwise as shown by express or implied congressional intent.
a. Silence does not inherently mean Congress intended to dispense with any mens rea requirement.
b. Severe penalty is a factor which suggests Congress did not intend to omit a mens rea requirement
ii. Presumption may be overcome where offense is a Public Welfare Offense
1. Offenses that involve “potentially harmful or injurious items” and “as long as a defendant knows he is dealing with a dangerous device” “he should be alerted to the probability of strict regulation.”
2. Guns in general are not “potentially harmful or injurious items”
8. Mistake of Fact
a. A mistake of fact may exculpate a defendant by negating her mens rea.
b. Burden of Proof
i. Defendant has initial burden of producing some evidence that he was mistaken as to a fact that negates mens rea. 
ii. Then burden shifts to prosecution to prove either:
1. Defendant was not mistaken or
2. The defendant’s mistake did not negate the mens rea
c. Analysis
i. Step #1:  Identify the offense as general intent, specific intent, or strict liability.
ii. Step #2A:  For strict liability offenses, mistake is never a defense.
iii. Step #2B:  For specific intent offenses, ask:  Does the mistake negate the specific intent portion of the crime?
1. If yes, the defendant must be acquitted, even if the defendant’s mistake was unreasonable.
iv. Step #2C:  For general intent offenses, ask:  Does the mistake negate the mens rea of the offense?
1. If yes, the defendant must be acquitted, but only if the mistake was reasonable.
9. Mistake of Law
a. Analysis
i. General rule:  Ignorance of the law is not an excuse.
ii. Exception #1: 
1. Reasonable reliance on an official statement of the law, later determined to be wrong, contained in
a. A statute later declared invalid;
b. A judicial decision of the highest court in the jurisdiction, later determined to be erroneous; or
c. An official, but erroneous, interpretation of the law, secured from a public official in charge of its interpretation or enforcement.
2. No defense: 
a. Reliance on one’s own interpretation of the law, even if the interpretation is reasonable.
b. Reliance on erroneous advice provided by a private attorney.
iii. Exception #2: 
1. A mistake of law, whether reasonable or unreasonable, is a defense in the prosecution of a specific intent offense if the mistake negates the specific intent in the offense.
2. No defense: 
a. A mistake of law, whether reasonable or unreasonable, is not a defense to a general intent crime or a strict liability crime.

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Modern Role of Criminal Statutes

Modern Role of Criminal Statutes

1. Principle of Legality
a. A person cannot be convicted and punished unless their conduct was defined as criminal before they acted.  Prohibition on retroactive criminal lawmaking.
b. Commonwealth v. Mochan, Pennsylvania Superior Court 1955
i. The common law is sufficiently broad to punish as a misdemeanor “any act which directly injures or tends to injure the public” or which “openly outrages decency and is injurious to public morals.”
c. Keeler v. Superior Court, SC of California 1970
i. The first essential of due process is fair warning of the act which is made punishable as a crime.
1. SCOTUS: “That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.”
ii. Due process prohibits the judicial alteration of criminal law where it is unforeseeable or unexpected by reference to the law that existed before the defendant’s conduct.
1. If the new judicial interpretation was foreseeable, it can be applied retroactively.
2. Statutory Clarity
a. In re Banks, SC of North Carolina, 1978
i. Vagueness
1. “A criminal statute must be sufficiently definite to give notice of the required conduct.”
2. If statute is clear and unambiguous, there is no room for judicial construction, and courts must give the statute its plain and definite meaning.
3. If statute is ambiguous or unclear in its meaning, courts must resort to judicial construction to ascertain legislative intent.
a. Words, Context, Legislative history.
b. Prior state judicial construction of the statute.
ii. Overbreadth
1. SCOTUS: state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.
b. SCOTUS on Vagueness
i. 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].”
ii. City of Chicago v. Morales, SCOTUS 1999
1. A criminal statute:
a. Must provide notice
b. Must establish minimal guidelines to govern law enforcement
3. Rule of Lenity
a. If a statute can reasonably be interpreted favorably to the government and just as reasonably be interpreted favorably to the defendant’s interests, it should be read in the light more favorable to the defendant.
b. Not constitutionally compelled, rule of statutory interpretation only where a statute is ambiguous

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Principles of Punishment in Criminal Law,

Principles of Punishment

1. Fundamental Questions
a. Why impose punishment?
b. Who should be punished?
c. How much punishment is appropriate?
2. Dominant Theories
a. Retributive:
i. Punishment is justified because people deserve it
ii. Backward looking - the justification for punishment is found in the prior wrongdoing.
b. Utilitarian:
i. Justification lies in the useful purposes that punishment serves (costs vs. benefits analysis)
ii. Forward looking - punishment is justified on the basis of the supposed benefits that will accrue from its imposition
3. Utilitarian Theory
a. Economic based theory.
i. Since punishment involves harms, it can be justified only if it produces sufficient future benefits to outweigh costs.
ii. A rational criminal will avoid criminal activity if the perceived potential pain (punishment) outweighs the expected potential pleasure (criminal rewards).
b. Utilitarian Justifications
i. General Deterrence: knowledge that punishment will follow crime deters people committing crimes, reducing future unhappiness and insecurity
ii. Individual deterrence: punishment creates fear in the offender that if he repeats his act he will be punished again
iii. Incapacitation: imprisonment temporarily puts convicted criminals out of general circulation.
iv. Rehabilitation/Reform: punishment may help reform the criminal so his wish to commit crimes will be lessened
4. Retributive Theory
a. Retributivism is not the view that only the guilty are to be punished, but that the “moral desert” of an offender is a sufficient reason to punish them.
i. Negative retributivism: guilt is a necessary, but not sufficient, condition of punishment
ii. Positive retributivism: guilt is both a necessary and sufficient condition for punishment
5. How Much Punishment?
a. Most criminal codes consider a mix of retributive and utilitarian factors when sentencing.
i. Indeterminate sentencing system: if trial judges have broad sentencing discretion.
ii. Determinate sentencing system: legislature sets specific sentence for each crime, or range of sentence considering mitigating or  aggravating circumstances. (sentencing guidelines)
6. Proportionality
a. Model Penal Code: one purpose is “to render punishment within a range of severity proportionate to the gravity of the offenses, the harms done to crime victims, and the moral blameworthiness of offenders.”
b. Two Questions:
i. How much punishment is proportional to a given crime?
ii. Under what circumstances is disproportionate punishment unconstitutional?
c. Retribution and Proportionality
i. Punishment must be proportional to the gravity of the offense committed as measured by:
1. The harm caused by the offender
2. The offender’s moral blameworthiness
d. Utilitarianism and Proportionality
i. Punishment must exceed the potential reward from the crime.
ii. The greater the mischief, the greater the punishment.
iii. Punishment should be no more than is necessary to achieve utilitarian goals.
e. Eighth Amendment
i. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
ii. SCOTUS: Prohibits “punishments which by their excessive length or severity are greatly disproportioned to the offense charged.”
iii. Coker v. Georgia, SCOTUS 1977 (Plurality Opinion)
1. Does imposing death penalty for rape violate the Eighth Amendment?
2. Objective criteria
a. Georgia only jurisdiction that authorizes death penalty for the rape of an adult woman
b. Georgia juries have sentenced rapists to death only 6 times in 63 cases
3. Subjective Criteria
a. Rape “does not compare with murder”
b. “The murderer kills; the rapist, if no more than that, does not.”
iv. Kennedy v. Louisiana 2008, Kennedy’s opinion
1. Death penalty is also disproportionate for child rape.
2. Should not extend death penalty to crimes against individuals where the victim’s life is not taken during the commission of the crime.
3. Only relates to crimes against individuals, not necessarily to treason/terrorism/espionage.

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Introduction to Criminal Law

Introduction to Criminal Law

1. Reasonable Doubt
a. SCOTUS: Constitution does not require or prohibit jury instructions defining reasonable doubt. 
i. If court chooses to define, Constitution does not require any particular form of words to be used so long as there is no reasonable likelihood that the definition, taken as a whole, would allow a conviction insufficient to meet the constitutional standard.
b. Types of Jury Instructions
i. “Moral Certainty”
1. Jurors cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.
ii. “Firmly Convinced”
1. Firmly convinced of guilt to charge, find guilty. If real possibility they are not guilty, find not guilty.
iii. “No Waiver or Vacillation”
1. If belief of guilt waivers or vacillates, find not guilty.
iv. “No Real Doubt”
1. Proof so convincing that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.
v. “Thoroughly Convinced”
1. “Are you thoroughly convinced?”
2. Presumption of Innocence
a. Owens v. State, Court of Special Appeals Maryland, 1992
i. Can conviction be based on circumstantial evidence alone?
ii. If the evidence shows a stronger inference for guilt than innocence, then that is sufficient.
3. Jury Nullification
a. Jury nullification is the “power” to ignore the law or facts and acquit the defendant, even if the prosecutor proves beyond a reasonable doubt every element of the offense charged.
b. The vast majority of courts refuse to instruct the jury on its “power” to nullify the law or allow defense counsel to make nullification arguments to the jury

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