Right to Counsel in Criminal Law

Right to Counsel

• Sixth Amendment
o In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

A. Absolute Right to Counsel

Positive Right
• Sixth Amendment right to counsel is a pre-trial right, and is a positive right; some claim that this right only enjoins the government from interference in the retention of counsel. Note that the right to counsel affects other right afforded a criminal defendant in a prosecution.
o Court first recognized a positive right to counsel in Johnson v. Zerbst (1938); declined to extend this right to non-capital cases in Betts v. Brady (1942), favoring a case-by-case, “special circumstances” due process test based on the totality of the circumstances.
o A question left unresolved from Johnson was what about the state courts? Does 14th amendment extend the Bill of Rights to the states?

Right to Counsel at Trial
• Serious Criminal Prosecutions
o Right to counsel in all federal and state felony prosecutions extended in Gideon v. Wainwright (1963) on due process and equal protection grounds.
 Due process prohibits imbalance in adversary system that could lead to bad decisions; equal protection requires that the state remedy the imbalance imposed by the inability to afford counsel.
• Imprisonment Rule
o Absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial. (Argersinger v. Hamlin, 1972)
 Scott v. Illinois (1979): Imprisonment rule applied to non-petty offenses.
 Alabama v. Shelton (2002): Indigent defendant not represented by counsel or waiving right may not receive a suspended or conditional sentence that may result in incarceration.
o When no imprisonment is to be imposed under any circumstances, conviction without counsel is constitutional.
• Timing
o Right to counsel triggered upon the formal commencement of adversary proceedings, and not upon arrest. It is triggered when the defendant is arraigned, indicted, or at a preliminary hearing.
 Ake v. Oklahoma (1985): Indigent pleading insanity defense has a right to a court-appointed psychiatrist.
• Post-Verdict
o Defendant retains right to counsel through sentencing (Mempa v. Rhay, 1967) and through any appeal afforded by the state as a matter of right (Douglas v. California, 1963).

Ineffective Counsel Claims
• In order for a convicted defendant to establish ineffective assistance of counsel, he must show both that the counsel’s performance was deficient and that the deficiencies were prejudicial.  (Strickland v. Washington)
o Counsel’s performance to be assessed under a standard of reasonableness under prevailing professional norms.
 Strong presumption that the counsel was competent and result was relianble.
 Courts must asses counsels actions from his perspective at the time challenged decisions were made
 Court must take into account any constraints of time, money or client information and choice.
 In capital trials, defendant must show reasonable probability that, absent the errors, sentencer would not have warranted death.
o US v. Cronic: Purpose of defense counsel must ensure a fair trial; no violation if counsel ensured meaningful testing of prosecutions test, even where demonstrable errors were committed.
• New standard is difficult to apply, and courts are reluctant to overturn convictions or find members of the local bar incompetent.
• Ineffective assistance is a particular problem in guilty pleas since there is no evidentiary record from which to asses counsel’s alleged failings.

Read full post »

Burden of Proof in Criminal Law

Burden of Proof

·         Burden of Production: coming forward with enough evidence to put a certain fact in issue (e.g. insanity, duress, self-defense)

·         Burden of Persuasion: convincing the trier of fact.

For most elements of most crimes, prosecution bears both burdens. But in some instances, defense may bear both, or production might be on defense but persuasion on prosecution.

·         When D bears burden of production = affirmative defense.

·         Prosecution can’t move for directed verdict in a criminal trial no matter how persuasive the evidence à would deny right to a jury trial. This implicitly permits jury nullification.

In Re: Winship US 1970 (Due Process Clause and Burden of Proof)

·         D is juvenile charged with larceny in juvenile prosecution (more informal). Juvenile court found him guilty by a preponderance of the evidence and sentenced him to 1 ½ years.

·         Holding: Burden of persuasion is on gov’t: due process protects against conviction except upon proof beyond a reasonable doubt of every element of fact necessary to constitute the charged crime.

·         Concur: standard of proof affects comparative frequency of convicting the innocent v. the guilty escaping.

Mullaney (in Patterson)

·         Crime: murder (need malice aforethought (w/o provocation) as to result element of death)

·         ∆ had burden of proof w/ defense of provocation (killing w/o m.a.f.), but π had to prove every element of the above crime

·         Thus, putting burden on ∆ made it so that prosecution no longer had to prove every element of the crime beyond a reasonable doubt

·         Holding: Doing this is unconstitutional

Patterson v. New York US 1977 p33

·         Facts: Husband spies on estranged wife and her and sees her getting undressed with the neighbor à barges in, shoots, and kills the neighbor.

·         Charged w/ 2^nd degree murder.

·         1) Intent to cause death of another

·         2) Causing death of that person or 3^rd person.

·         *Malice aforethought isn’t an element.

·         *Affirmative defense of extreme emotional distress permitted, b/c this is not the opposite of intentional killing (like m.a.f. and provocation are)

·         Issue: Jury was instructed the D had to prove the affirmative defense of extreme emotional disturbance by a preponderance of the evidence.

·         Holding: Putting the affirmative defensive burden on the D is not a deprivation of due process.

·         State still proved all the elements necessary for murder; ∆ defense only mitigates does not negate element since nothing in statute about provocation.

·         Dissent: in Mullaney – making the D prove the heat of passion beyond a reasonable doubt = unconstitutional. In Patterson, making D prove EED by preponderance of the evidence = constitutional. à formalistic and stupid division.

Conclusions:

·         Constitution places few limits on placing burden of proof—S.C. reluctant to limit legislature

·         Slippery slope concerns—not clear limits on setting crimes and punishments, which gives the prosecutor more power

·         More limits on crim procedure than substance of crim law

Why beyond reasonable doubt?

1)       Don't want to hurt innocent people

2)       Gives concrete substance to presumption of innocence (a charge is not evidence)

3)       Justifies/legitimizes the system

Read full post »

Allocating Punishment: Proportionality and Constitutional Limits on Sentences Constitutional Limits on Sentence

Allocating Punishment: Proportionality and Constitutional Limits on Sentences
Constitutional Limits on Sentence
Bentham – utilitarian principles, pg 187
-p169- 172 – other rationales

At Issue
a) How to flesh out the meaning of frameworks like due process?
b) Federalism
c) Relationship of courts to political branches (and criminal justice policies), role of the courts and con. values

8th Amendment
No cruel & unusual punishment
-In capital punishment arena, the 8th amendment has been used to say no capital punishment for rape, felony murder, juveniles, mentally handicapped.

Issue: is there proportionality of sentences in the 8th amend?
Yes, but very little. Ewing Standard of proprtionality:

Ewing v. California US 2003 p172 THREE STRIKES LAW
•  stole 3 golf clubs. Had many priors, including armed robbery.
• Prosecutor has discretion on “wobbler” crimes to make them felonies or misdemeanors, which would determine whether this is ∆’s third strike
• Prosecution pushed third strike law, sentenced to 25-life.
• Holding: SCOTUS plurality affirms sentence as not disproportionate. Outside capital punishment, successful challenges to proportionality of a sentence are very rare.
• SCOTUS develops Ewing standard below, which is a very low standard for proportionality
• Sentence reflects a rational legislative judgment that repeat offenders must be incapacitated.

Ewing Standard for Proportionality of Punishment Under 8th Amend:
1. Does punishment surpasses threshold of grossly disproportionate?
2. If yes, then can consider:
• Gravity of the offense and harshness of the penalty
• Sentences imposed on other criminals in the same jurisdiction
• Sentences imposed for same crime in other jurisdictions

Prior SCOTUS Court Decisions rejecting proportionality challenges:

Case Sentence Offense Prior Offense and Statutory Scheme
Rummel v. Estelle Life with parole obtaining $120 by forgery Three time offender statute (if prior convictions resulted in temrs of imprisonment). Prior offenses -- $80 fraud using credit card; passing a forged check of $28. Eligible for parole in 10 years
Are three strikes rules double jeopardy?
• entrenched that longer records equal less leniency
• Pro 3 strikes: deterrence (but Breyer says overkill), incapacitation, retributivism b/c career criminals, punishing society’s freeloaders, gets rid of rehab approach


Hutto v Davis 40 Years possession w/ intent to distribute 9oz of pot He receive 20 year consequtive terms. No prior record required. He did have a prior record.

In a 9.5 month period in 1975-76, of 117 inmates convicted of possessing, manufacting, or selling marijuana, average sentence was 3 yeas, 2 months, and highest sentence was 15 years.
Harmelin v MI Life w/o parole for possession possession of 672 grams of cocaine No record.

Possession of more than 650 grams of cocaine imposes mandatory life sentence without parole.

Minimum mandatory does not require any prior record of conviction

3. SCOTUS upheld Proportionality Challenges:



Case Sentence Offense Prior Offense and Statutory Scheme
Solem v Helm Life without parole Pasing a bad check for $100 3rd strike rule makes felon eligible for life without parole

Had 6 prior felony convictions (all nonviolent): 3 for burglary, one for obtaining money under false pretenses, one for grand larceny, and one for DUI
Graham v. Florida (2010)
Life without parole for juveniles (categorical challenge) Armed burglary with assault and battery Same conduct also constituted attempted robbery. Graham pled guilty, but the court initially withheld adjudication. When Graham later was arrested for two robberies on the same night, and admitted to police having committed 203 additional robberies. These crimes were not adjudicated, but were the basis for revoking Graham’s probation and resentencing him on the armed burglary with assault and battery
Did not apply the Ewing test b/c doesn’t start by having to pass a grossly disproportionate threshold. Instead:
• still does jurisdictional comparison.
• Makes a normative judgment: Juveniles have a diminished moral culpability. Life without parole is the 2nd most severe penalty allowed by law

Categorical rule for all juvenile non-homicide offenders, but this holding:
1) focused on the nature of the offense
2) focused on the sentence of life without parole
3) Key is categorical role for class
Miller v. Alabama (2012) (felony murder) Life w/o parole for juevenile who committed homicide homicide The defendant’s challenge was not that life without parole may never be imposed on a juvenile who commits homicide. It was, instead, that the legislature cannot make life without parole mandatory for a juvenile and thereby deprive the sentencing judge of discretion to consider whether this particular juvenile deserves that harsh of a sentence.
Mandatory life w/out parole sentence is excessive because it precludes an individualized decision. Not an outlier, but 2k in the country were mandatory life sentences.
Cannot have mandatory scheme for life w/out parole; instead, need discretion


Graham v. Florida
• Can’t justify under retribution (juvenile isn’t morally culpable enough) nor deterrence (juveniles are irrational) nor incapacitation (for non-homicide crimes) nor rehabilitation (jail sucks).
• Looks at other nations – none of them allow life without parole for minors.
• Concur: 1) youth 2) didn't tentd to kill 3) non conscoios leg decision 4) life w/out parole for jueveniles is harsher because higher proportion of life behind bars
• Concur: society changes and criminal law needs to reflect evolving standards of decency.

Open Questions Following Graham:
What about other statuses like mental retardation
What about life without parole @60 years?
What about 50 years in prison for youth? Or rephrasing to 75/100 years, etc?


Other cases:
State v. Berger AZ 2006 p180
• AZ court upheld 200 year sentence for 1st offender possessing 20 images of child pornography.
United States v. Bajakigian US 1998 p178
•  violated currency laws by not reporting attempt to take ~$350k out of the country in cash (which he hadn’t acquired illegally).
• Statute provided for forfeiture of the sum to the government.
• Holding: SCOTUS said this would be excessive under 8th amend considering the technical nature of the offense and the minimal harm to the government.

Comparison to Punitive Damages via Substantive Due Process :
Due process clause limits punitive damage awards  put similar challengeds (court are more willing to intervene here). No legislature in the picture/no deterrence concept?

Read full post »

Group Criminality

Group Criminality
A. Accomplice Liability
1. Mens Rea
Majority rule: accomplice had purpose of aiding the crime
• This is proof of specific intent to commit he crime
Minority Option A: accomplice had knowledge of aiding the crime
Minority Option B: purpose for lesser crimes, but knowledge for greater crimes (Fountain)

Luparello rule: If the 2nd crime is foreseeable consequence of the 1st (intended) crime, then purpose from 1st transfers to the 2nd (e.g. assault to murder). McVay is the extreme version of this. (Note: MPC doesn’t follow Luparello rule)

Example From Gladstone:
Ways to distinguish knowledge and purpose (tricky):
• Knowledge +  selling at in inflated price                 = purpose
Makes up a substantial part of your business
Secretive manner of transacting business
Nexus can show purpose (non-business, Gladstone)

MPC §2.06(3) accomplice if he acts with purpose of promoting or facilitating commission of the offense
• Solicits such other person to commit it
• Aids or agrees or attempts to aid in planning or committing it
• Having a legal duty to prevent the commission, fails to do so
o Encouragement is not included as a form of prohibited act under 2.06 (3) BUT solicitation is a prohibited act for accomplice liability under 2.06 (3)(a)(I)
o Not including encouragement is the minority rule
**If have purpose then only need to have the culpability required for the principle in the offense as to the result***

Hicks v. United States US 1893 p593
• Hicks and principal offender, all standing on horses and conversing, when principal kills victim.
• Hicks testifies he tried to convince principal not to shoot.
• Dispo: no evidence  conspired with principal to kill victim.
• Reversed and remanded

State v. Gladstone WA 1970 p595
• Gladstone charged w/ aiding and abetting marijuana sale.
• Gladstone was asked by undercover if he had any pot, said no but other guy might.
• Undercover then bought from the other guy.
• Holding: no nexus of association between principal offender and Gladstone just from G’s knowledge.
• Knowledge of sale insufficient culpability. Also need purpose (which nexus can be evidence of).

State v Judge Tally
• ∆ sent telegram to telegram operator, telling them not to pass on a warning telegram to Ross (man who seduced his sister-in-law) that man were trying to kill him
• Guilty as an accomplice, although he did not confer with murderers head of time.
• Compare w/ Gladstone: Accomplice even though no nexus. Nexus is additional evidence of purpose.

People v. Luparello 4th 1987 p604 (impute accomplice liability from lesser to greater crime)
•  wanted to find ex lover. Told his friends/thugs who wanted to do him a favor, and thugs killed a guy unwilling to reveal her location.
• Luparello charged with murder, even though he didn’t want the guy killed.
• Holding: aider and abettor is guilty not just of crime he intended to facilitate, but any additionally foreseeable crimes. ∆ had purpose of facilitating assault, so this culpability is imputed for murder b/c reasonably foreseeable

Criminal Facilitation:
Some states have made it a separate crime to provide assistance for a crime
Other Substantive crimes:
e.g. crime to “knowingly” provide “material support” to terrorist organizations p. 671; Juvenile guns in the Columbine case p. 671
Mens Rea as to Result
Roebuck and MPC 2.06(4): When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice if he acts with the kind of culpability that is sufficient for the result element of that offense.
- Roebuck – Accomplice has culpability of whatever their articular conduct is

Just needs to intend conduct and not the result. Where A intended that P commit a crime that has a result element, A (like P) need have only the culpability, with respect to the result element, that is required by the definition of the offense.

State v. McVay RI 1926 (reckless, so convicted of manslaughter though accomplice liability)
• Boiler explodes on a ship, killing passengers.
•  indicted for helping to procure defective ship.
•  argues because manslaughter is “without malice” can’t be maliciously planned before the fact.
• Holding: premeditated act may be involved in unintentional homicides.
• “volition of the principals was exercised when they negligently created steam that the boiler couldn’t carry”
• Because McVay consciously encouraged the grossly negligent act of over taxing the boiler, he’s an accomplice

Circumstance Elements
MPC deliberately did not address issue of whether purpose is required for attendant circumstances. Deliberately ambiguous.
Liability of secondary crimes
If A is liable for crime X, committed by P, but P proceeds also commit crime Y, which A did not intend, may A also be liable for Y – even absent a showing that A has the culpability that would be ordinarily be required under the mens rea requirements?
1. MPC – no liability for Y. A may be liable only for those specific crimes that A had the purpose of facilitating or promoting.
2. Minority - Luperello rule – A is liable when Y is the natural and probable consequence or was reasonably foreseeable as the consequence of X
2. Act/Conduct Requirement: Encouragement or Aid
Unlike causation, it is not necessary to establish a but-for relation between the defendant’s action and the criminal conduct thereafter.

“Aid”—all you need to show is assistance might have made a difference (e.g. Tally’s telegram)
• Attempt to aid: if actually made no difference, (e.g. telegram never sent)
• common law: no liability
• MPC: liability (focuses on mens rea)
• Can be guilty of attempt if principals don’t successfully carry out crime (e.g. Tally if telegram arrived, but murders didn’t find Ross)
• See MPC 5.01(3) and 2.06
• Can’t be held liable if principal lacks mens rea (under cover cop)

Wilcox v. Jeffrey England 1951 p616 (How minimal can “encouragement” of offense be? Just applauded.)
• Jazz magazine editor promotes and attends the concert of an American saxophonist who didn’t have a work permit in UK. Charged as accomplice to violation of the Aliens Order of 1920.
• Holding: ’s presence wasn’t accidental. He went to “make use” (via enjoyment & getting a story for his magazine). Therefore, he aided and abetted.
State ex. Rel. Attorney General v. Tally, Judge AL 1894 p618
• Victim had seduced Tally’s sister-in-law.
• Skeltons (bros of sister-in-law) follow Ross to nearby town to kill him.
• Tally tells telegraph operator not to deliver a warning telegram to Victim.
• Skelton brothers catch up with Vitcim and kill him.
• Holding: Tally’s actions must have been with the goal of aiding the Skeltons in goal of killing.
• Aid must simply make it easier for principal to accomplish criminal goal. Still counts even if in all probability the crime would’ve been attained without the aid.
State v. Hayes MS 1891 p623 (not accomplice b/c principal didn’t have mens rea)
•  was set up to engage in robbery by Hill, who was actually a relative of the target storeowner.
• Hill, not , actually went in the window and brought out stolen bacon.
• Holding: Principal and abettor must have the same purpose – can’t entrap someone.
• Can convict  of petit larceny for taking the bacon after it was handed to him.
• **MPC would’ve held Hayes liable (for attempt 5.01(b)
Vaden v. State
• undercover agent had local guide suspected of illegal hunting tours take him hunting—shot 4 off season foxes
• Holding: convicted of illegal hunting, rejected argument that not guilty as an accomplice to the agent

B. Corporate Criminality
Policy
• Arguments against criminal corporate prosecution: We have civil law for that, Corporations aren’t people
• Arguments for criminal corporate: adds stigma, not incorporated into the cost of business, traial will gther more public notice
• Made a difference with Arthur Anderson Accounting and Enron – “Presecutor can bring down corporation even if there is a maverick”
• Because not able to have top official liable, the criminal corporate may have to step in.
o For example, what does it mean to have a collection of contralcts liable?

Liability of the Corporation
1) Respondeat Superior: Corporation may be held criminally liable for acts of any of its agents if agent: (1) commits a crime (2) within the scope of employment (3) w/ intent to benefit corp
2) Collective Knowledge Doctrine: Permits finding of corporate mens rea to be derived from collective knowledge of corporation’s members
3) Corporate Ethos Model: Can convict corp only if it proves that corporate ethos encouraged employees to commit criminal act
4) MPC §2.07:
a) Respondeat superior theory of liability. Corporation may incur liability for minor infractions when legislative purpose to impose liability “plainly appears.” Limited by availability of due diligent defense. Proof that “high managerial agent” having supervisory responsibility over subject matter of offense used due diligence to prevent its commission exonerates corporation. (MPC §2.07(5)).
b) Accountable for failure to discharge specific duties imposed on corps.
c) Corp will incur liability for true crimes only if conduct constituting offense is authorized, commanded, solicited, performed, or recklessly tolerated by board of directors or “high managerial agent.”

US v. Hilton Hotels – Corporation liable for acts of agents in scope of employment, even though acts were contrary to general corporate policy and express instructions to agent.

Commonwealth v. Beneficial Finance – Sufficient if show that corp has placed agent in position where he has enough authority and responsibility to act for corp in handling corp business at time when he committed criminal act. Ds convicted of bribing, even though Ds were neither officers nor director of corp.


Liability of individual
Common Law - Many states make highest-ranking official in corp also responsible for criminal conduct of corp. even when official’s direct participation in violation can’t be found (basically SL)
• Concern that management will turn blind eye (does willfull blindness doctrine help this?)
• Goal is to create a culture of corporate responsibility

MPC - MPC §2.07(6) – only permits this attribution when top official authorized or ratified the act (narrower)
(a) A person is legally accountable for any conduct he performs or causes to be performed in the name of the corporation to the same extent as if it were performed in his own name.
(b) For omissions: any agent of corp having primary responsibility for the discharge of the duty is legally accountable for a reckless omission to perform the required as to the same extent as if the duty were imposed by law directly upon him.

US v. Park (“Responsible Relationship Theory”)– To convict CEO, need to show a) has affirmative duty (and omitted it); b) has power (responsible relation to crime done); c) if he’s objectively powerless to do something about it, then can’t convict.

C. Crime of Conspiracy
• Conspiracy doesn’t merge into a completed offense. It’s punishable separately.
• Majority Rule: punishment for conspiracy is some term less than the object crime.
• Minority Rule: Following MPC, approx. 1/3 of states punish conspiracy up to the level authorized for the object crime except for the most serious felonies.
• **Feds have general 5 year sentence for conspiracy, no matter the underlying crime.

MPC 5.03(1): Conspiracy: if with the purpose of promoting or facilitating the commission of a crime he agrees that one or more of them will engage in conduct.
• 5.03(5) Overt act: Can’t be convicted unless a conspirator has committed an overt act (other than felony in first or second degree)
BUT CANT STILL BE CONSPIRACY under the MPC EVEN IF ONE OF THE ACTORS IS “feigning” or is ACQUITTED

Requirements (minimal):
• 2 or more people make an agreement to commit a crime, then any of conspirators makes an overt act towards the commission of that crime (but can be minimal).
• Can be as minimal as non-verbal agreement right before crime is committed (e.g. nods among group before commit assault)

Abandonment:
A conspiracy is considered abandoned when none of the conspirators is engaged in any action to further the object of the conspiracy.
• If a conspirator wants out – for federal courts need, “affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators”. United States v. Gypsum.
• For MPC §5.03(7)(3) – can either inform co-conspirators or police.
• Only complete defense if actor succeeds in preventing commission of the criminal objectives.
1. Act Requirement – Agreement
The actus reus of the crime of conspiracy is the agreement itself.
• At common law, the requisite conduct was just the act of agreeing. Many jurisdictions have added an overt act requirement.
• Issue: found through circumstantial evidence, so common plan or just acting in same way coincidentally? (e.g. mob mentalilty?)





Griffin v State (intent and communication can be inferred)
• ∆ got in fight w/ police officer who came to the scene of car accident, several other bystanders joined, until police shot ∆
• ∆ claims that he had no knoldget that someone ould assist him, needs common purpose!, did not know intent of the other parties
• Holding: aggravated assault and conspiracy b/c don’t need direct but only need circumstantial evidence of conspiracy; you can infer intent from circumstances even without communication
• Circumstantial evidence: concert of action—2+ people pursuing same object is sufficient to send to jury on issue of common intent and object pursuant to a common plan

US v Garcia
• Gang member started verbal fight with other gang, but no proof he was involved in physical fight
• Holding: overturned conviction of conspiracy to commit aggravated assault
• Nature of acts need to logically imply coordination and planning—here he would be guilty by association
2. Mens rea
MPC requires purpose for both conspiracy and accomplice liability (2.06(3) and 5.03(1)).

People v. Lauria CA 1967 (can also apply for accomplice) p. 713
• Answering service used by prostitutes. Undercover poses as a prostitute who wants to use his answering service. Lauria knew some of his clients were prostitutes.
• Issue: is knowledge by furnisher of goods / services that he is enabling criminal behavior = conspiracy?
• Holding: Overturned indictment: Needs knowledge + purpose.
• For Lauria, had knowledge, but problem of inferring purpose since no direct participation (like accomplice w/ businesses).  Must look at sale and surrounding circumstances:
• The purveyor has a stake in the venture OR
• No legitimate use for the goods / service exists OR
• Volume of demand disproportionate for a legitimate use.
• Need the surrounding circumstances because want innocent business people to continue to act
• For misdemeanors may need intent.  For felonies – knowledge might be enough. (minority rule)

Add’l Notes: Where there is no direct evidence of intent/purpose, it may be inferred from knowledge if: 
o the purveyor of legal goods/services for illegal use has acquired a stake in the venture.
 Regina v. Thomas - who rented room to a prostitute at a grossly inflated rent was held to have intent.
o no legitimate use of the goods or services exists. 
 People v. McLaughlin - D who provided horse racing info. by wire held to have intent for bookmaking conspiracy
o volume of business with buyer is grossly disproportionate to any legitimate demand. 
 Direct Sales - providing narcotics to rural physician in quantities 300 times what could have legitimate use for, shows intent for conspiracy.

4. Procedural Consequences of a Conspiracy Charge

Procedural Issues
• Multiple Charges
o Conspiracy charges frequently brought in addition to substantive crimes; barred by MPC (§1.07(1)(b))
o Complex conspiracies may involve multiple smaller conspiracies.
• Venue
o Difficult reconciling proper forum with defendant’s Sixth Amendment rights; see §5.03(4).
• Joinder
o Mass conspiracy trials impute guilt by association to those defendants who may have the least to do with the criminal enterprise (Alvarez)
• Hearsay
o ‘Co-conspirator Exception’ to hearsay rule allows blameshifting statements made in the course of a conspiracy, and in furtherance of it, to be admitted against any alleged conspirator without cross-examination
 Rationale for exception based on idea of agency; a person who has authorized another to speak or act to some joint end will be held responsible for what is said or done
 Krulewitch v. US: Statements against a co-conspirator not made in furtherance of the crime may not be admitted into evidence.  Conversation took place after criminal act was completed and was too far removed to have been made in furtherance of conspiracy.
o Admissibility requires determination of conspiracy, but evidence frequently used to establish its own admissibility.
• Evidence
o Vague evidentiary burden regarding agreement; J. Jackson objects to overuse of conspiracy charges in Krulewitch v. US.
• Punishment
• Most jurisdictions fix penalties somewhere below that provided for the object crime.

Krulewitch v. United States US 1949 p664 (e.g. of conspiracy charge used just for hearsay rules)
• ’s charged with conspiracy to use interstate transport to facilitate prostitution.
• Government said the conspiracy was “ongoing” in order to admit otherwise inadmissible evidence—tried to argue that conspiracy could continue indefinitely offense was done (conspiracy to avoid prosecution).
• Holding: SCOTUS reversed conspiracy charge so gov’t didn’t expand scope of conspiracy.
• Conspiracy is predominantly mental and consists of meeting of the minds and intent.
• At the fringe, conspiracy will convict those who can’t even be convicted for aiding and abetting.
• ! There can be no conspiracy charge when the prosecution the substantive offense is adequate and the conspiracy charge is chiefly for procedural purposes.
5. Vicarious Liability for Crimes Committed by Co-Conspirators: the Pinkerton Rule
• Pinkerton Rule (Minority)
o Defeendent may be charge with substantive crimes committed by co-conspirators provided that the crimes were foreseeable outcomes of the conspiracy
 This minority rule similar to lesser crime theory in accomplice laibiity (Luperollo)
 Rule in place in all federal and some state prosectutions
o Pinkerton v. US: Court upheld conspiracy conviction for substantive crimes committed by friend while defendant was in jail. Under accomplice liability theory he would not be liable (no act strongly corroborative of criminal purpose)
• MPC preculsed Pinkerton rule by requiring specific inten for conspiracy liability. Says different parties in a conspiracy can have different scopes of liability.

Pinkerton v. United States US 1946 p677 ()
• ’s are brothers who live close to each other. Charged with tax evasion and conspiracy.
• Issue: Can ’s be found guilty of the substantive offenses that they didn’t personally commit if they were found to be parties to a conspiracy at the time of the offense?
• Holding: Expanded theory: if a substantive crime of a co-conspirator was in furtherance of conspiracy, then the ∆ can be held liable for the co-conspirator’s crime.
• Limitations: 1) must be in furtherance of conspiracy 2) must be reasonably foreseeable
• ’s were involved in a continuous conspiracy. The lesser  didn’t try to withdraw from it.
• The criminal intent to do the substantive act is established by the formation of the conspiracy.
• Dissent: No evidence that  counseled or had knowledge of the particular acts or offenses. Their conspiracy is being extended to make the general “partners in crime”  creates broad vicarious criminal liability.

United States v. Alvarez 11th Cir. 1985 p685
• Undercover ATF agents were at motel, trying to arrange cocaine deal.
• When raid happens, shootout starts, and some ATF agents are killed / wounded.
• Two ’s who didn’t take part in shootout were charged with 2nd degree murder through Pinkerton liability. They argued murder wasn’t reasonably foreseeable consequence of drug sale conspiracy.
• But due to large quantity of drugs, probability that someone would be armed  reasonable for jury to find murder was foreseeable.
• ! Pinkerton liability is extended for reasonably foreseeable but originally unintended substantive crimes.
4. Scope of Conspiracy
Why scope matters--the bigger conspiracy the more affected by:
1. Procedural consequences:
• Venue (could be where any of co-conspirators are located)
• Joinder (almost always join co-conspirators, who can make you look worse by assoc)
• Hearsay (admitted as evidence): 1) co-conspirator can testify at ∆s trial about what a third conspirator said (but can’t cross-examine third conspirator since not there)
2. Substantive liability—(Pinkerton) majority of state but not MPC

Metaphors for Scope:
1. Wheels (8 conspiracies): Brown was center and Kotteakos was one of eight spokes. The eight spokes would have to be joined (e.g. all contribute to one payment) to be 1 conspiracy

2. Chains (1 conspiracy): smuggler ---- middlemen            NY Retails

              LA and TX Retails
Unilateral vs. Bilateral
Bilateral—all conspirators have same set of objectives
Unilateral—different conspirators have different objectives, so no agreement (e.g. undercover cop)

Kotteakos v. US
• 32 ∆s indicted with conspiracy—fraudulent insurance application
• Holding: SCOTUS reversed conviction of general conspiracy. Error was charge of one conspiracy when actually Brown was the center of many, separate conspiracies.
• Confuses single, common purpose with numerous parallel purposes
US v. Bruno
• 86 indicted on narcotics conspiracy
• Holding: one conspiracy b/c chain of buyers, middlemen and sellers—can’t divide up into separate conspiracies, b/c all links of the chain needed for scheme to work
• But see US v Borelli: held that narcotics chains of sales are insufficient to infer agreement to cooperate in entire long chain
US v McDermott
• ∆ convicted of insider trading b/c his porn star girlfriend was secretly passing information to another lover
• Holding: not part of a conspiracy b/c he did not agree (or want) to pass on information to third party, it wasn’t the foreseeable consequences of any agreement with gf, didn’t fit into any broader scope of conspiracy agreement with gf

Read full post »

Significance of Resulting Harm in Criminal Law

Significance of Resulting Harm

A. Causation

1.                  Causation is only an issue in crimes with result elements.  It’s therefore not an issue in crimes like burglary, theft, rape, possession of drugs, and many others.

2.                  Burden of Proof: for but-for and proximate cause is on the prosecution.

Eggshell Rule

·         Eggshell skull rule applies in criminal just like in torts for proximate causation. See Stamp (heart-attack during robbery)

Transferred intent

MPC §2.03(2)(a) where crime requires that a defendant intentionally cause a particular result (e.g. killing someone), that culpability transfers if defendant accidentally causes that result to one person.

·         Transferred intent applies for more than just murder. State v. Contua-Ramirez

But-For Cause

Concurrent causes (multiple ∆s at same time)—all ∆ are liable either if all were necessary or any one was sufficient

                e.g. Ten men stab the same victim at once; everyone is guilty of murder

Departure from usual ‘but for causation’; moral inuitions typically control

Intervening cause – Sufficient to break chain of events set in motion and excuse the “’but for actor’ by introducing a new ‘but for’ actor.

Intervening cause generally (see proximate cause):

-          Sudden

-          Unusual: foreseeability a factor, but not a test

-          Blameworthy: especially if more blameworthy than prior actor

-          Act of an independent moral agent: doctor v. fragile skull

United States v. Hamilton DC 1960 AM94 (But-for causation)

·         Bar fight. Victim goes to the hospital. Many hours later, victim pulls out tubes necessary to clear his airway à dies.

·         Holding: if someone strikes a non-mortal blow, which leads to the death of the victim, even if the victim is negligent about getting care à homicide

-          Even gross medical negligence is rarely held to release defendant of responsibility for harm (death) resulting (but Courts are split on this issue)

o    (State v. Shabazz: Gross negligence by hospital staff may permit defendant to escape liability only when it was the sole cause of death)

-          Hypo: A poisons B; C shoots B before death. C commits murder; A commits attempt

Proximate Cause

General Rule: Where A and B are both proximate causes, and B happens after A, courts treat B as an intervening cause of harm if B is: sudden (lightening striking ambulance), unusual (e.g. rare virus, foreseeability sometimes factored), a human agent (but must be at least grossly negligent), blameworthy (evil nurse)

Policy Isues: Doctrine is intimately bound with moral notions of blameworthiness inadequately expressed in statutes

-          To what extent does the defendant take the victim as he finds him? Should the victim’s own contributory negligence or reckless actions play a role in assigning culpability?

       

Other Rules

·         Thin skull rule

·         Victim does not need to treat injuries

·         Harm within the risk (e.g. after assault ambulance hit by a car: assaulter likely guilty of murder; e.g. virus in hospital—infections are common).

·         Additional negligence at hospital? Shabazz—depends on court if gross negligence, but not ordinary

·         Intentional wrongful killing by evil nurse breaks proximate cause

Doctrine of transferred intent

·         (MPC §2.03(2)(3)

·         Actor culpable for intentional harm visited on unintentional victim

o    Generally limited to more serious crimes, such as homicide, though it has been applied to assaultive felonies as well

§  State v. Contua –Ramirez: Defendant attempted to strike wife, hit baby instead; convicted of felony on a child rather than misdemeanor assult on adult

People v. Kibbe NY 1974 AM97 (convicted of murder)

·         Drunk victim. D’s drive him to rural highway on a cold night, pull off his pants, dump him on the road without his glasses.

·         Victim gets hit by a 3^rd party truck while walking in the middle of the road.

·         Civil liability != criminal liability, there’s a different standard of proof.

·         There’s little doubt victim would’ve frozen to death if he hadn’t been hit. The intervening truck driver wasn’t negligent.

Shabazz CT 1988

·         Stabbing à surgery à dies of liver bleeding. Hospital was grossly negligent, but not the sole cause.

·         **Courts are split on whether gross negligence can be intervening cause.

U.S. v. Maine

·         Does cop’s failure to do anything and remove passenger break the causal chain?

o    Court says possibly yes!

Stephenson v. State p530 (yes prox cause)

·         D rapes victim, victim commits suicide, court holds D caused victim to commit suicide.

People v. Campbell MI 1983 p523 (Suicide means not murder)

·         Campbell and Basnaw were drinking heavily. Campbell encouraged Basnaw to kill himself because Basnaw had slept with Campbell’s wife.

·         Gave him the gun, and Basnaw did it.

·         Holding: Suicide excludes by definition homicide.

·         Hoping victim will kill himself != intent to kill. 

On Assisted Suicide:

Few jurisdictions, if any, have retained the common law view that assisting in a suicide is murder.

The majority of states treat assisted suicide as a separate, less serious crime.  Recent decisions draw a distinction between active participation in a suicide and involvement in the events leading up to the suicide, such as providing the means.  A conviction of murder is proper if a defendant participates in the final overt act that causes death, such as firing a gun or pushing the plunger on a needle, but not where a defendant is involved merely in the events leading up to the commission of the final overt act, such as furnishing the means.

People v. Kevorkian MI 1994

·         Victim in great pain, Kevorkian assisted their suicides.

·         Holding: In Roberts, D was convicted for giving his wife access to poison.

·         Overruling Roberts, only where there is probable cause to believe the death was natural and direct result of D’s act can D be charged with murder.

·         Dissent: the loose standard adopted by the court could head to abuse.

B. Attempt

·         At common law, attempts were misdemeanors

·         Since MPC §5.05(1), a substantial minority of states (1/4) have made punishment for the attempt the same as the crime attempted, except for crimes punishable by death or life imprisonment.

**Cannot be prosecuted for both attempted and completed crimes.

** Can be predicate for felony-murder prosecution

Policy Considerations:

Why attempt should get lesser punishment:

·         Retributive function of punishment is not served when no harm is done. Appropriate that one who causes harm punished more.

·         Unsuccessful criminals are less dangerous – less incapacitation? weak

Why attempt should get same punishment:

·         Punishment should be based on the antisocial acts of the criminal, that the criminal plan failed is irrelevant.

Punishments were traditionally less than completed crimes, though many jurisdictions have begun to impose full sentences for attempts since MPC proposals were introduced. MPC applies equal penalties for attempted and completed crimes on theory that sentencing depends on antisocial disposition and the demonstrated need for corrective sanction

·         To what extent should the law limit penalties for attempted homicide, simply because the miraculously survives?

·         What is the purpose of punishing an attempted crime if harm does not result? Do we punish acts or intentions?

1. Mens Rea

Common law: must have purpose as to results, (Need purpose even though you do not necessarily need purpose to impose liability for a completed crime). Requires purpose even when a lesser mens rea such as recklessness or negligence would suffice for the completed offense

·         No such thing such as attempted involuntary manslaughter; if death does not result, assailant may have committed no crime at all!

MPC: requires only knowledge unless the underlying completed crime requires purpose (has not caught on).

MPC 5.01 Attempt: need to 1) act with kind of culpability required for commission of crime and 2) purposefully engages in conduct that would constitute the crime if the attendant circumstances were what he believed them to be (conduct element). Usually result element is more important in attempt.

·         Circumstance element? Sufficient for attempt e.g. attempted statutory rape (based on age)—culpability is same as far statute—don’t elevate

·         Commonwealth v. Dunne 1985 p553 – 18 y/o high school senior, trying to have sex with 17 y/o girlfriend. Even if parents break it up à still attempted statutory rape.

Specific Intent

In crimes lacking specific intent (Kraft: road rage, Thacker: shooting at tent), defendant may not be subject to murder or attempted murder charge since actor lacked proper mens rea and requisite harm did no result.

When crime is nearly identical with the intent , it is necessary to prove that defendant a

People v. Kraft IL 1985 AM100

·         Road rage à shoots at other car, then at cops. D found guilty of 2 counts of attempted murder.

·         History of depression & drug abuse. Wanted to commit suicide by shooting at cop.

·         Holding: knowledge that consequence of one’s act could result in death doesn’t satisfy specific intent requirement for murder. Requires purpose for result element of murder (note: usual murder state in NJ)

Reckless Endangerment

Attempt connotes purpose. Reckless endangerment statutes, found in MPC and some states, cover reckless creation of harm.

·         mpc § 211.2 Recklessly Endangering another person: a person commits a misdemeanor if he recklessly engages in conduct which places or may place another person in danger of death or s.b.i…

·         Reckless endangerment not available in all states, in some states if no crime then you get off

Thacker v. Commonwealth

drunken ∆ who shot tent would have been liable for murder if he had hit woman, but missed and is not liable for attempted murder since he did not intend to kill her. D would be liable for reckless endangerment under MPC § 211.2. Assuming didn’t have intent to kill, can charge him with depraved heart murder if she was hit and killed.

2.  Act Requirement

Incomplete Attempts

·         How far from the beginning, or how near to the end must the act reach?

·         Necessary balance between prevention and non-criminal acts of preparation, as well as opportunities for repentnece /abandonment

·         Problems with early intervention:

o   Potential for abuse and exploitation (Morales); no opportunity to repent; vagueness problem

o   State v. Duke  (FL 1998) : Police arrested suspected child molester after he flashed his headlights on arranged rendezvous; court held that overt act did not go far enough toward consummation to constitute attempt

King v. Barker: The court notes two theories of attempt, neither of which is fully accepted:

1.                  Eagleton Test: The accused must have taken the last step that he was able to take along the road of his criminal intent.  He must have done all that he intended to do and was able to do for the purpose of effectuating his criminal purpose.  If he stops short, he still has an opportunity to repent and change his mind.  On this principle, pulling the trigger is attempted murder but lying in wait isn’t.

2.                  White Test: The completion or attempted completion of one of a series of acts intended to result in killing is an attempt of murder, even though the completed act would not, unless followed by other acts, result in killing.  It might be the beginning of an attempt, but it is still an attempt.

All that can be definitely gathered is that to constitute a criminal attempt, the first step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required.  The dividing line between preparation and attempt is to be found somewhere between the two extremes.

Common law and MPC Differing Approaches

Common law focuses on how close they are to completing the crime, MPC on what has already been done.

Common Law “Dangerous Proximity Approach” (how close you are):

The conduct must come dangerously close to the commission of the crime, so that there was a reasonable likelihood of its accomplishment but for some cause. Dangerous proximity to success (Holmes).

MPC “Substantial Step Approach” (how far you’ve come):

Mpc: 5.01(2) (Used by ½ of states and 2/3 of federal circuits) Substantial Step must be strongly corroborative of criminal purpose.

Strong indicators:

1.                  lying in wait, searching for or following the contemplated victim of the crime;

2.                  enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;

3.                  reconnoitering the place contemplated for the commission of the crime;

4.                  unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;

5.                  possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances;

6.                  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;

7.                  soliciting an innocent agent to engage in conduct constituting an element of the crime.

Application of Common law

People v. Rizzo NY 1927 (not far enough to be attempt) **strictest standard/anti-MPC

·         Issue: Were D’s acts in preparation to commit robbery, or a criminal action of attempted robbery?

·         Rizzo was supposed to point out robbery target. They never found the target.

·         Holding: Attempt is only for acts which are so near to the accomplishment of the crime that without interference, the crime would’ve occurred.

·         Dispo: They never got the opportunity to commit the crime à not guilty of attempted robbery.

Application of MPC Standard

United States v. Jackson 2^nd Cir. 1977

·         D’s prepared but then called off a bank robbery, scheduled it for a later date.

·         One D is arrested for an unrelated crime, tells police about planned robbery.

·         D’s convicted of conspiracy.

·         Holding: New test: Act must be substantial step & strongly corroborative firmness of criminal purpose. Put focus on what D has already done (variation on MPC, slighter narrowly b/c of “firmness”)

Attempt w/ Accomplice Liability

State v. Davis MO 1928

·         D was trying to hire ex-con (actually undercover cop) to kill accomplices husband and get insurance $.

·         Planned the scheme, but then undercover revealed himself.

·         Dispo: not attempted murder b/c “accomplice” had no intention of committing crime

United States v. Church 1989

·         Husband hired hitman (actually an undercover) to kill ex-wife.

·         Police staged the hit, and husband paid in full and ID’d fake body.

·         Dispo: attempted murder.

Abandonment

Common law (and many modern courts) traditionally denied defense of abandonment

·         Rationale of proximity to completion based in part on maintenance of an opportunity to renounce criminal purpose, as well as difficulty of presecuting non-criminal acts (aka walk-away is built in before criminal element)

·         Opportunity to repent is lost once Δ crosses threshold of criminality, after which he may be convicted despite attempts of repetenec. Once necessaty elements are in place, liability cannot be erased.

o   But see: In some states, renunciation affords a complete defense, if voluntary and complete, even after all of the criminal elements are in place. Courts are divided on how far attempt can go re renunciation.

MPC §5.01(4) - renunciation of criminal purpose

·         It is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.

·         Defense not available when:

·         Defendant abandons due to increased risk of detection or apprehension, or an circumstances which make accomplishment more difficult

·         Postponement or transfer to another, but similar objective or victim

Denial of abandonment

People v. Johnson: D entered a gas station, pulled a gun and demanded money. When the attendant produced only $50 he departed saying he was only kidding. The court denied the abandonment defense in this case.

Guilty, resist created the renunciation

People v. McNeil: D intended to rape. She pleaded and he released her promising never to do such a thing again. He was convicted of attempted sexual assault. The court noted that her unexpected resistance made his renunciation non-voluntary.

Not guilty, same as above, but found renunciation valid

Ross v. State: same facts as above court found abandonment as a matter of law, stating “D did not fail in his attack. No one prevented him from completing it. The victim did not sound an alarm. She successfully persuaded Ross, of his own free will, to abandon his attempt”

3. Substantive Crimes of Preparation

P561-565

·         Conspiracy

·         Burglary

·         Assault

·         Policing Measures (loitering)

·         Stalking

Solicitation and Attempt

·         Majority: Most states hold that acts of solicitation (for example of hiring an hitman/assassin) are not attempt because it is not his purpose to commit the acts personally.

·         Minority: Solicitation can be attempt

o   U.S. v. Church: Defendant convicted of attempted murder for soliciting killing of his wife; court held that there was nothing more he could do short of killing her himself

·         At common law, solicitation was a crime within itself. Solicitation has been codified in most jurisdictions.

4. Impossibility

Factual impossibility: not a defense.

Common Law: Legal Impossibility – Thinking you’re breaking a law when you really are not. This is a defense (can’t be convicted if no law is broken). Factual Impossibility – When D, despite his intentions, could not complete his intended crime because of facts or conditions unknown to him or beyond his control. This is not a defense. Inherent Impossibility (sticking pins in voodoo doll) –not a defense if really believe it could work (MPC)

MPC. - Eliminated defense of impossibility in virtually all situations - Does away with legal/factual impossibility distinction. - Prosecution has to prove there is a criminal statute punishing what the defendant intended to accomplish. - Evaluate crime based on facts/conditions as D believed them to be - Permits a court to dismiss a case if D’s conduct was “inherently unlikely to culminate in the commission of a crime that neither such conduct nor the actor presents a public danger.” (MPC §5.05(2)) - Modern trend is to follow the MPC

People v. Dlugash NY 1977 p577 (factual impossibility)

·         Other criminal shot and killed victim. D then shot the body.

·         Holding: because D believed the victim was alive when he shot him à attempted murder.

Read full post »