What is punishment Criminal Law ?

What is punishment?

Kennedy v. Mendoza Martinez (1963): To determine whether a nominally civil measure is really punishment and thus whether criminal law safeguards apply courts must consider: “whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter (intent/culpability to commit a crime), whether its operation will promote the traditional aims of punishment- retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.”

·         One key distinction between civil and criminal: paradigmatically the criminal justice system is backward looking – it punishes for what has been done. Civil punishment is forward looking because it fears that that individual will inflict harm in the future.

·         Criminal punishment includes a conviction, social stigma

·         Crim has greater safeguards, higher burden of proof

·         When one is detained civilly there is not necessarily a fixed term, it’s regulation not punishment (like committing mentally ill)

·         E.g. Sexually violent predator laws -- > lower burden of proof/less formal requirements

Read full post »

Purposes of Criminal Law

Supplemental Reading 9-11

A.  Retributive

Backward looking

Kant: penal law is categorical imperative.

·         Justice can only be served through punishment.

·         Right of retaliation: just penalty is equal e.g. whoever committed murder must die.

·         Utilitarian values undermine justice: it ceases to be justice if it can be bartered like any other commodity.

Moore: retributivist—punish only b/c the offender deserves it. Moral culpability of offender gives society a duty to punish

Hart: punishment is return of suffering for moral evil voluntarily done – punishment itself is thus a good thing.

            -but how does evil (offense) + evil (punishment) = good?

Morris: punishment restores just distribution of benefits and burdens – exacts debt.

-Murphy Marxist response: many criminals come from terrible socioeconomic backgrounds – “debt” to society? For what, when poor man never benefitted from society? No reciprocity of benefits

-Mackie response: why do you “repay” evil with evil? Doesn’t wipe out existing crime. Punish to eliminate advantage criminal got by trying to get ahead. Not to punish.

1. Vengeance

Fitzjames – Stephen: notion that punishment should be based on amount of resentment and outrage generated by the crime. Punishment is expression and solemn ratification of the hatred that is excited by the actor’s offense.

·         Problem: sentence may not be adequate for the family/community (e.g. less for negligent homicide, but family wants defendant’s life to be equally ruined)

·         Problem: victim impact statements—S.C. ruled they could be used in trial (blameworthiness of defendant) b/c murder has foreseeable consequences, like hurting a family.

2. Social Functions

Hart: public expression of condemnation is value in and of itself (close to utilitarian deterrence)

Durkheim: function of punishment is really to maintain cohesion of society by sustaining common consciousness. Punishment heals wounds inflicted on collective sentiments.

3. Mixed Theory

Hart: most system are retributive b/c punish murder more than robbery, even though an equal punish may deter both. However, by setting a max penalty the system is also utilitarian

Moore: Paternalistic utilitarian theory of punishment is bad because moral blindness is bad.

B.  Utilitarian

Forward looking

1. Deterrence Value

Rational Actor model:

Bentham: Criminals consciously or unconsciously calculate costs and benefits. Thus, must make the costs from punishment higher than the gains of committing the crime

-Many argue this doesn’t apply especially for crimes of passion.

-Robinson & Darley: criminals aren’t rational. May apply broadly, but not for minor changes in sentences

-May have perverse effects – severe punishment raises cost of addict buying drugs so the addict will commit robbery to finance his habit OR criminal has already hit max sentence, so no incentive to stop committing crimes/worse crimes

How to increase deterrent effect of punishment:

·         Increase risk/certainty of conviction, Increase severity of punishment

·         Note: Increased certainty has greater deterrent effect than increased severity

*some evidence that excessive penalties cause conviction rates to decline because juries are less willing to convict when they know penalties are huge.

·         Moral influence: don’t comply from rational cost/benefit but from external/communal norms and internal norms. So needs to educate public

2. Rehabilitation

Martinson: research on effectiveness is mixed: first said rehabilitation programs had not impact on recidivism. Later said they could reduce recidivism for some offenders under certain circumstances.

·         Notion became fixed in public mind that rehabilitation doesn’t work.

Von-Hirsh and Maher: rehabilitation programs will only work if more drastic.

Cullen and Gilbert: argue for return to treatment model, but worry there is potential problem with fairness / discretion of treatment providers.

3. Incapacitation

Zimring & Hawkins: prison meant to restrain those under its control – all other objectives are ancillary.

Diulio: incarceration is cost effective solution to restrain known criminals from murdering / raping / robbing. **doesn’t make sense for low-level, first time drug offenders.

            -Later honed his perspective, said nation maxed out value of incarceration in 90’s.

Read full post »

Insanity and Diminished Capacity in Criminal Law,

Insanity and Diminished Capacity



Insanity

General Principles
Two ways which insanity can be used
Negate Mens Rea
The prosecution failed to prove that the defendant had the required mens rea to commit the offense
Burden rests on the prosecution to prove mental state
Verdict = not guilty
Civil commitment will not result automatically
Present an affirmative defense of insanity
Even though the prosecution proved all of the elements of the crime charged, the defendant was legally insane at the time of the crime
Burden (in most states) rests on defendant to prove insanity by a preponderance of evidence (some jurisdictions require clear and convincing evidence)
Verdict = Not guilty by reason for insanity
Generally results in automatic civil commitment
Insanity Tests
Tests only come into play when you are asserting insanity as an affirmative defense. (NGRI).
All of these tests require a mental disease or defect at the time of the offense, but most courts fail to define that term.
The M’Naghten Test (17 states, 11 states use one of the prongs)
A person is insane if, at the time of her act, she was laboring under such a defect of reason, arising from a mental disease that:
She did not know the nature and quality of the act she was doing OR
If she did know it, she did not know that what she was doing was wrong.
The Irresistible Impulse Test
Adds a third prong to the M’Naghten test
A person is insane if, at the time of her act, she was laboring under such a defect of reason, arising from a mental disease that:
She did not know the nature and quality of the act she was doing OR
If she did know it, she did not know that what she was doing was wrong OR
At the time of the offense, she acted from an irresistible and uncontrollable impulse.
The Product Test (Only in New Hampshire)
An accused is not criminally responsible if her unlawful act was the product of mental disease or defect.
A defendant is entitled to acquittal if:
She is suffering from a mental disease or defect at the time of the crime AND
The disease was the but-for cause of the criminal conduct
The MPC Test
A person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect, she lacks substantial capacity either to:
Appreciate the criminality [wrongfulness] of her conduct OR
Cognitive Prong
Conform her conduct to the requirements of the law
Volition Prong (basically the irresistible impulse prong)
Differences from M’Naghten:
Substantial incapacity instead of total incapacity
Appreciate instead of “know”. Makes test more defendant friendly, harder to appreciate rather than just know
Insanity and Mens Rea
The MPC allows evidence of mental illness to negate any mens rea element of any crime.
Some jurisdictions allow evidence of mental illness to show that the defendant did not form a specific intent specified in the offense, but not for general intent offense.
Some jurisdictions allow evidence of mental illness only to establish an affirmative defense of legal insanity, but completely prohibit such evidence to negate the mens rea of the offense charged.


Diminished Capacity

Refers to cases where the actor’s mental illness falls short of insanity
Evidence of diminished capacity can be used for two purposes:
To negate the mens rea required for the crime (“mens rea”)
To partially excuse the defendant’s guilt even if she has the required mens rea for the crime. (“partial responsibility”)
Clark v. Arizona, SCOTUS 2006
Categories of evidence with a potential bearing on mens rea
Observation evidence: testimony from those who observed D commit the act. Also includes expert testimony about D’s tendency to think in a certain way and his behavioral characteristics.
Mental-disease evidence: opinion testimony that D suffered from a mental disease.
Capacity evidence: opinion evidence regarding defendant’s capacity for cognition and moral judgment.
Arizona has sensible reasons to assign the risks of mental disease evidence, and restrict admissible evidence for mens rea defense short of insanity to observation evidence only
Partial Responsibility
Even if the prosecution proves the elements of the crime charged, the defendant may bring evidence of mental illness, short of insanity, to show that she is less culpable than a completely sane defendant and should be convicted of a lesser crime.
Only the MPC recognizes the partial responsibility defense and where it does apply, it is only a defense to murder to mitigate the offense to manslaughter.

Read full post »

Defenses in Criminal Law

Common Law - Defenses

General Principles
1. Even where the prosecution meets its burden in proving all elements of a crime, the defendant may raise one or more defenses.
2. Categories of Defenses
a. Failure of Proof Defenses
i. The defendant argues that the prosecution failed to prove an element of the crime charged.
b. Justification Defenses
i. The defendant’s conduct was not socially undesirable under the circumstances of the case. (i.e. self-defense)
c. Excuse Defenses
i. Although the defendant’s conduct was wrongful, she should not be punished because she is not morally blameworthy. (i.e. insanity)
d. Specialized Defenses
i. These are defenses that apply to just one or few crimes (i.e. abandonment, impossibility)
e. Non Exculpatory Public Policy Defenses
i. The societal benefit underlying the defense arises not from defendant’s conduct, but from foregoing his conviction.
ii. Statute of limitations, immunities, etc.

Self Defense Analysis
When force can be used in self defense:
1. There must be a threat, actual or apparent, of the use of force.
a. If deadly force is used in self-defense, the threatened harm must be death or serious bodily injury.
b. Idea of proportionality of force
2. The threat must be unlawful and imminent.
a. Imminency is emphasized by common law (no preemptive strikes)
i. Battered Women’s Syndrome
ii. “Immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others of the protection of the law.”
3. The defendant must subjectively believe that she was in imminent peril of harm and her response was necessary to protect herself.
4. The defendant’s belief must be objectively reasonable under the circumstances.
a. A determination of reasonableness must be based on the “circumstances” facing a defendant or his “situation.”
i. These circumstances/situation include:
1. Any relevant knowledge the defendant had about that person, including those known substantially before the killing
2. Physical attributes of all persons involved.
3. Prior experiences
4. Gender but not race

Exceptions to Defense of Using Deadly Force in Self-Defense
1. Exception #1 (Aggressor):
a. The right to use lethal force in self-defense is unavailable to someone who provokes a physical conflict, unless:
i. The defendant withdraws from the altercation and informs the other party of her withdrawal by words or conduct, OR
ii. The other party responds to the defendant’s use of non-lethal force with lethal force, in which case the defendant may use lethal force to defend herself.
1. Defendant would be liable for the first non-lethal threat.
2. Exception #2 (Retreat)
a. The common law forbids the use of deadly force when the defendant is subjectively aware of the existence of an avenue for completely safe retreat.
i. Under the “castle” doctrine, a defendant who, through no fault of her own, is attacked in her own home is under no duty to retreat.
b. The majority rule in the United States allows the use of deadly force to repel a lethal attack, even if she can retreat in complete safety (the “no retreat” or “stand your ground” rule)

Defense of Others
1. A person is permitted to use force to protect a third party from unlawful use of force by an aggressor.
2. The person may use force if she has reasonable grounds for believing that force is necessary to prevent imminent harm to the third party.
3. Traditional Rule: Applied solely to those persons with whom the defendant had a special relationship, such as wife or brother.
4. Modern Rule: No distinction between strangers and relatives with regards to its application.

Defense of Property/Habitation
1. Personal Property
a. Non-lethal force may be used to protect personal property if the owner reasonably believes that force is necessary to prevent imminent, unlawful possession of the property
b. Non lethal force may also be used if reasonably necessary to recapture property if the owner acts promptly
c. Lethal force is never permitted to protect personal property even if it the only means to prevent the loss.
2. Habitation
a. Lethal force may be used if the defendant reasonably believes that lethal force is necessary to prevent an imminent and unlawful entry into the home to commit a forcible felony (e.g., murder, robbery, burglary, rape, arson, etc.)

Necessity (Justification Defense)
1. The defendant must reasonably believe that there is a “clear and imminent danger.”
2. The defendant must reasonably believe that there are no effective legal methods to avert the danger.
3. The harm caused must be less serious than the harm avoided.
a. In balancing the harms, the defendant’s “actions should be weighed against the harm reasonably foreseeable at the time, rather than the harm that actually occurs.”
b. Given the facts as they reasonably appear, the defendant’s balancing of the harms must in fact be correct.
4. The defendant must not have been at fault for creating the emergency to be averted.
5. The balancing is not foreclosed by a legislative choice.
a. Cannot use necessity in a homicide prosecution.

Duress (Excuse Defense)
1. Elements
a. Imminent threat by another person of death or serious bodily injury against the defendant or [a member of her family - this requirement mostly gone] another if the defendant does not commit a criminal offense.
i. “A veiled threat of future unspecified harm” is insufficient
b. A well grounded fear that the threat will be carried out.
c. No reasonable opportunity to escape the threatened harm except through compliance with the demands of the coercer.
2. The defendant must not be at fault for exposing herself to the threat.
3. Cannot use duress in a homicide case

Intoxication
1. Not an affirmative defense, not applicable to strict liability offenses
2. Analysis
a. Step 1: Did the defendant becomes intoxicated voluntarily or involuntarily?
i. Intoxication is voluntary if it results from knowingly ingesting a substance that the actor knows or should know can cause her to become intoxicated, unless she was coerced to ingest it.
b. Step 2: Is the offense charged a specific intent offense or a general intent offense?
i. Voluntary intoxication is a defense to specific intent crimes if, as a result of her intoxication, the defendant did not form the specific intent required in the definition of the crime.
ii. Involuntary intoxication is a defense to both specific and general intent crimes if, as a result of her intoxication, she did not form the mental state required in the definition of the crime.
MPC - Defenses

Self Defense
1. A person is justified in using force upon another person if she believes that “such force is immediately necessary for the purpose of protecting herself against the use of unlawful force by such other person on the present occasion.” 3.04(1)
2. Two departures from the common law:
a. The actor’s subjective belief need not be reasonable.
i. Where the actor is negligent about the need to use force, she can be convicted of a negligence crime.
ii. When the actor is reckless about the need to use force, she can be convicted of a recklessness or negligence crime.
b. The MPC subs the phrase “immediately necessary” instead of “imminence”
i. Battered Women’s Syndrome
3. Deadly Force
a. The use of deadly force is authorized only to protect against death, serious bodily injury, rape, and kidnapping. MPC 3.04(2)(b)
b. Deadly force by aggressors.
i. The MPC prohibits the use of deadly force by a person who “with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter,” unless he withdraws.
ii. Difference between common law - you have to be an aggressor of deadly force.
c. Retreat
i. The MPC prohibits the use of deadly force by a person who “knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting claim of right thereto or by complying with a demand that he abstain from any action,” but retreat is not required from his dwelling or place of work (unless the attacker is a co-worker)

Defense of Others
1. A person is permitted to use force to protect a third party from unlawful use of force by an aggressor.
2. The person may use force if she subjectively believes that force is necessary to prevent imminent harm to the third party.

Necessity
1. The “choice of evils” defense under MPC 3.02 is different from (and broader than) the common law in three primary respects
a. The MPC rejects the imminence requirement
b. The defendant may claim the defense even if she was at fault in bringing about the situation requiring the choice of evils or appraising the necessity for her conduct.
i. If the defendant was negligent in bringing about the necessity, she may be prosecuted for a crime of negligence.
ii. If the defendant was reckless in bringing about the necessity, she may be prosecuted for a crime of recklessness or negligence.
c. The defense is available in homicide prosecutions

Duress
1. Duress is an affirmative defense to unlawful conduct if:
a. The defendant was compelled to commit the offense by the use, or threatened use, of unlawful force by the coercer upon her or another person, AND
b. A person of “reasonable firmness” in the defendant’s situation would have been unable to resist the coercion.
2. The defense is also available if the defendant reasonably, but erroneously, believed that a threat to use unlawful force was issued.
3. The defense is unavailable if the mistake in that regard was reckless or negligent and the defendant was prosecuted for a crime of similar culpability.
4. Differences from Common Law
a. No imminency requirement in the MPC
b. The threatened harm need not be a threat of death or serious bodily injury. Must be a threat of physical harm.
c. The imperiled person need not be the defendant or a member of her family
d. The defense is available in homicide prosecutions

Intoxication
1. General Rule: Intoxication, voluntary or involuntary, is a defense to a crime if, as a result of the intoxication, the defendant lacked the mental state required for an element of the crime.
a. I.e., intoxication led you to do something without knowingly doing so.
2. Exception: When recklessness is an element of the offense, the defendant cannot negate the recklessness element with evidence of voluntary intoxication.

Read full post »

Accomplice Liability in Criminal Law

Common Law - Accomplice Liability

Accomplice Liability Analysis
1. Did the primary party commit an offense?
a. A conviction of the primary party is not required since the lack of a conviction does not mean that the crime did not occur.
b. The acquittal of the primary party bars the conviction of the accomplice if the primary party was acquitted based on a justification defense (as opposed to an excuse defense).
c. Innocent Agency Doctrine: One who effects a criminal act through an innocent and unwitting agent is a principal.
2. Did the secondary party commit the actus reus of accomplice liability?
a. Solicited another person to commit the offense, assisted in its commission, encouraged its commission, or failed to perform a legal duty to prevent its commission
i. Attempting to aid is not sufficient
3. Did the secondary party have the required mens rea for accomplice liability?
a. The secondary party must have the intent to promote or facilitate the primary party to engage in conduct that forms the basis of the offense
i. The required intent can be inferred from knowledge under certain circumstances. See People v. Lauria
b. The secondary party must have whatever mental state is required -- intentionally, knowingly, recklessly, negligently, etc. -- for the commission of the substantive crime with regard to the results of the primary party’s conduct
i. The required intent can be inferred from knowledge under certain circumstances. See People v. Lauria.
4. Causation
a. A defendant can be liable as an accomplice even if the primary party would have committed the offense without the defendant’s assistance.

Accomplice Liability: Common Law
1. General Principles
a. A secondary party is an accomplice of the primary party if she intentionally assists the primary party in committing a crime
b. The term “assist” includes soliciting another person to commit the offense, assisting in its commission, encouraging its commission, or failing to perform a legal duty to prevent its commission
c. An accomplice may be convicted of any offense committed by the primary party with the accomplice’s intentional assistance (derivative liability).
d. Attempting to aid is not sufficient (unlike MPC)
2. Elements
a. Actus Reus
i. Secondary party’s assistance.
ii. Solicited another person to commit the offense, assisted in its commission, encouraged its commission, or failed to perform a legal duty to prevent its commission.
1. Mere presence or prior knowledge is not enough
b. Mens Rea - dual intent:
i. Intent to aid the primary party AND
1. An undisclosed intention to render aid if needed will not suffice. Nor is mental approval of the actor’s conduct.
ii. Intent that such assistance result in the commission of the offense charged.
iii. People v. Lauria
1. As in conspiracy, required intent can be inferred from knowledge under certain circumstances:
a. Knows of the crime AND
b. She has the purpose that the crime occur OR
c. The offense involved is “very serious” OR
d. She has a “stake” in the crime, meaning:
i. She charges the criminal above market price
ii. Sales for illegal use amount to a high proportion of the profits;
iii. There is no legitimate purpose for the type of goods supplied under the circumstances of the case; or
iv. There is no legitimate purpose for the volume of goods supplied under the circumstances of the case.
3. Corroboration Rule
a. Conviction may not be had upon the testimony of an accomplice unless his testimony is corroborated by such other evidence as tends to connect the D with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
4. Natural and Probable Consequences Doctrine
a. A person encouraging or facilitating the commission of a crime can be held liable not only for that crime, but for any other offense that was a “natural and probable consequence” of the crime the person aided.
b. Analysis
i. Did the primary part commit the target offense?
ii. If yes, was the secondary party an accomplice in the commission of the target offense?
iii. If yes, did the the primary party commit another crime or crimes beyond the target offense?
iv. If yes, were the latter crimes, “although not necessarily contemplated at the outset, reasonably foreseeable consequences of the original criminal acts encouraged or facilitated by the aider and abettor?”
5. Liability of the Accomplice vs. the Principal
a. For an accomplice to be guilty of a crime, there must have been a crime committed by another person from whom the accomplice’s liability originates.
b. A conviction of the primary party is not required since the lack of a conviction does not mean that the crime did not occur.
6. Abandonment Defense
a. The common law didn’t recognize an abandonment defense to accomplice liability, but many jurisdictions now permit the defense
b. Defendant must voluntarily and completely renounce involvement in a crime and make a substantial efforts to prevent it.


 
MPC - Accomplice Liability

Accomplice Liability Analysis
1. Did the primary party commit an offense?
a. A conviction of the primary party is not required since the lack of a conviction does not mean that the crime did not occur.
b. The acquittal of the primary party bars the conviction of the accomplice if the primary party was acquitted based on a justification defense (as opposed to an excuse defense).
c. Innocent Agency Doctrine: One who effects a criminal act through an innocent and unwitting agent is a principal. 2.06(2)(a)
2. Did the secondary party commit the actus reus of accomplice liability?
a. Solicits such other persons to commit it; or
b. Aids or agrees or attempts to aid such other person in planning or committing it; or
c. Having a legal duty to prevent the commission of the offense, fails to make the proper effort to do so.
3. Did the secondary party have the required mens rea for accomplice liability?
a. The secondary party must have the intent to promote or facilitate the primary party to engage in conduct that forms the basis of the offense
b. The secondary party must have whatever mental state is required -- intentionally, knowingly, recklessly, negligently, etc. -- for the commission of the substantive crime with regard to the results of the primary party’s conduct
4. Causation
a. A defendant can be liable as an accomplice even if the primary party would have committed the offense without the defendant’s assistance.

Accomplice Liability: MPC
1. Elements
a. Mens Rea
i. Purpose of promoting or facilitating the commission of the offense
1. Knowledge alone is insufficient
b. Actus Reus
i. Solicits such other person to commit it; or
ii. Aids or agrees or attempts to aid such other person in planning or committing it; or
1. Aid includes common law “assist:” assisting in commission of offense, encouraging its commission
iii. Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so
2. MPC Rejects Natural and Probable Consequences Doctrine
a. Except for 210.2 presumption regarding recklessly killing while in commission of a specified crime
3. Abandonment Defense
a. MPC 2.06(6) recognizes an abandonment defense if the defendant terminates their complicity prior to the commission of the offense; and either
i. Wholly deprives it of effectiveness; or
ii. Gives timely warning to law enforcement authorities or otherwise makes proper efforts to prevent the crime

 

Read full post »

Conspiracy in Criminal Law

Common Law - Conspiracy

1. General Principles
a. Conspiracy is a mutual agreement, express or implied, between two or more persons to commit an unlawful act.
b. At common law, the crime is complete upon formation of the agreement. No overt act to further conspiracy is required.
c. Many states now require the commission of an overt act in furtherance of the conspiracy.
d. At common law, the rule of merger does not apply
i. Conspiracy is separate and distinct from the substantive crime that is its object
ii. Defendant may be convicted and punished for both conspiracy and the substantive crime. (And conspiracy and attempt)
2. Co-Conspirator Liability
a. Conspiracy vs. Accomplicity
i. Conspiracy requires agreement to participate in the commission of a crime but actual assistance in the crime is not required.
ii. Accomplice liability requires proof of assistance, but an agreement to participate is not required.
b. Pinkerton Co-Conspirator Liability (Majority Rule)
i. A conspirator is responsible for any criminal act committed by a co-conspirator if:
1. The act was committed in furtherance of the conspiracy AND
2. The act was a reasonably foreseeable consequence of the unlawful agreement
3. Elements of Conspiracy
a. Mens Rea
i. Conspiracy is a specific intent crime
ii. Conspiracy is not established unless two or more persons:
1. Intend to agree or to conspire AND
2. Intend to commit the offense which is the object of the conspiracy
iii. People v. Swain, California SC 1996
1. A conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice
iv. People v. Lauria, California CoA 1967
1. Under what circumstances does a supplier become part of a conspiracy when he knows his goods or services are to be used by the buyer for a criminal purpose?
2. Both the element of knowledge of the illegal use of the goods or services and the element of intent to further that use must be present in order to make the supplier a participant in a criminal conspiracy.
3. The specific intent of a supplier to further illegal use may be established by:
a. Direct evidence that he intends to participate
b. Knowledge of unlawful use PLUS
i. Stake in the venture (i.e. over charging criminals for same service);
ii. No lawful use exists for the goods or services under the circumstances;
iii. Volume of business is grossly disproportionate to any legitimate demand, or sales for illegal use are a high proportion of the seller’s total business; or
iv. The case involves a “very serious offense” in which knowledge alone may be sufficient (i.e. felony)
v. Attendant circumstances
1. Some courts hold that conspiracy cannot be proven unless the parties have knowledge of the attendant circumstances, even if such knowledge is not required for the underlying crime.
2. Other courts conclude that knowledge of attendant circumstances is not required for a conspiracy conviction, and require the same mens rea for attendant circumstances as the target crime
b. Actus Reus
i. Agreement
1. The gist of a conspiracy is the agreement to commit a criminal act or a series of criminal acts.
2. The fact finder can infer the existence of an agreement through evidence of acts, conduct, and circumstances.
3. Accomplice and conspiratorial liability are not synonymous
a. Someone can be an accomplice to an offense without conspiring to commit it.
b. Accomplice liability does not require proof of an agreement
ii. Overt act in furtherance of the conspiracy
1. Many states require an overt act
2. Any act, no matter how trivial, is sufficient to meet the overt act requirement, as long as it is performed in furtherance of the conspiracy.
3. The overt act need not be illegal
4. Unilateral vs. Bilateral Conspiracy
a. Bilateral:
i. Two or more persons must have the requisite mens rea for conspiracy (intent to agree and specific intent to commit unlawful acts)
b. Unilateral:
i. Only the defendant must have had the requisite mens rea
5. Scope of a Conspiracy
a. A conspiracy can exist even though the conspirators “do not know the identity of one another, and even though they are not all aware of the details of the operation.”
b. Defendant must have a general awareness of the “scope and objective” of the enterprise and there must be a “community of interest” among the co-conspirators or reason to know of each other’s existence
i. Community of Interest: Does the success of one conspirator depend in part on the other?
c. Wheel vs. Chain Conspiracies
i. Wheel Conspiracy
1. There is a “hub,” a person who transacts illegal dealing with other persons, who are the “spokes.”
2. The hub views the spokes as part of a broader criminal enterprise, but the spokes view the conspiracy more narrowly.
ii. Chain Conspiracy
1. Involves “successive communication or cooperation” and the various “links” in the chain have a community of interest in that the success of one member’s part depends upon the success of the whole enterprise.
iii. Wheel vs. Chain
1. It is more difficult to infer an agreement among the spokes than among the links of a chain conspiracy, because they are less likely to have a community of interest or reason to know of each other’s existence since one spoke’s success is usually not dependent on the other spokes’ success, but instead on his dealings with the hub.
d. Number of Conspiracies
i. Braverman v. United States, SCOTUS 1942
1. Whether a single agreement to commit acts in violation of several penal statutes is to be punished as one or several conspiracies?
2. Whether the object of the agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes.
3. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisions the violation of several statutes rather than one.
6. Defense of Abandonment
a. Once the conspiracy offense is complete (agreement + overt act), abandonment is not a defense to conspiracy
b. If a person abandons the conspiracy, she can avoid liability for any subsequent crimes committed by her former co-conspirators in furtherance of the conspiracy.
i. Courts usually require that the abandoning party communicate her withdrawal to each co-conspirator
ii. Some courts also require the abandoning party to successfully dissuade others from continuing the conspiracy.
MPC - Conspiracy

1. General Principles
a. Conspiracy is a mutual agreement, express or implied, between two or more persons to commit an unlawful act.
b. Under the MPC, the rule of merger applies
i. The defendant cannot be convicted of both conspiracy and the target crime (or attempt) unless the agreement involved the commission of additional offenses not yet committed (or attempted).
2. Co-Conspirator Liability
a. MPC rejects the Pinkerton Doctrine and only applies accomplice liability
3. Elements of Conspiracy
a. Mens Rea
i. A person is not guilty of conspiracy unless the conspiratorial agreement was made “with the purpose of promoting or facilitating” the commission of the substantive crime.”
ii. Supplier of goods or services for illegal use
1. A conspiracy does not exist if supplier is aware of, but fails to share, another person’s criminal purpose.
iii. Attendant circumstances
1. Knowledge of attendant circumstances is not required for a conspiracy conviction when knowledge of the circumstances is not required for the substantive offense.
b. Actus Reus
i. Agreement
1. Agreement to commit a criminal act or a series of criminal acts.
2. The fact finder can infer the existence of an agreement through evidence of acts, conduct, and circumstances.
ii. Overt act in furtherance of the conspiracy
1. Any act, no matter how trivial, is sufficient to meet the overt act requirement, as long as it is performed in furtherance of the conspiracy.
2. Overt act required, except for conspiracy to commit felonies in the first or second degree
4. Unilateral Conspiracy
a. MPC adopts a unilateral theory of conspiracy
b. Focuses inquiry on the culpability of the defendant, rather than on the group which they are alleged to be a part of.
5. Scope of a Conspiracy
a. Who’s part of the conspiracy?
i. If a person guilty of conspiracy … knows that a co-conspirator has conspired with another person to commit the same crime, he is guilty of conspiring with such other person, whether or not he knows their identity.
b. Number of Conspiracies
i. A person with multiple criminal objectives is guilty of one conspiracy if:
1. (Same as common law) The crimes are part of a single agreement, OR
2. Even if there are multiple agreements, the crimes are part of “a single and continuous association for criminal purposes.”
6. Defense of Abandonment
a. Abandonment is an affirmative defense if the conspirator:
i. Completely and voluntarily renounces her criminal purpose AND
ii. Thwarts the success of the conspiracy

Read full post »

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.”

Read full post »