Criminal Law Crimes and Concepts Checklist

December 22, 2011
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Law school checklist for criminal law.

Criminal Law Crimes and Concepts

Basic Concepts of Any Crime – once all 5 occur, the D is said to be “morally blameworthy”
You need an VOLUNTARY ACT
You must have a BAD MENTAL STATE
You must have a CONCURRENCE OF ACT + MENTAL STATE
You must CAUSE THE RESULT (direct and proximate cause)
There must be a SOCIALLY HARMFUL RESULT

Essential Concepts of Criminality
a. The Prohibited Conduct – The “Actus Reus”
1. i. Voluntary Act – Hinkle case – can a person voluntarily act if unconscious?
  1. Unconscious v. Insane
    1. Burden of proof – insanity defense is an affirmative one where all elements are met, but the mental disease/defect prevent knowing right from wrong (D has burden) whereas unconsciousness defenses say that the voluntary act element cannot be proven (case-in-chief defense)
  2. ii. Act of Possession
    1. Foxcase – marijuana greenhouse case
      1. Possession – how do we prove this conscious, deliberate act?
        
        i. (1) Knowledge and (2) intention to exercise dominion and control over the thing
      2. Possession w/ Intent to Distribute – requires (1) D knowingly and intentionally possessed a controlled substance, and (2) D intended to distributethe substance to another (look to amt of drug).
        
        i. If not this, try constructive possession – find sufficient nexus between accused and the drug to permit an inference that the accused had both power and intent to exercise dominion and control over the drug.
  3. iii. Inaction – no legal duty to aid a person in peril. 5 exceptions:
    1. One stands in a certain relationship to another (includes doctor-patient)
    2. Where a statute imposes a duty to help another
    3. Where one has assumed a contractual duty
    4. Where one has voluntarily assumed the care of another
    5. Where you place another person in peril
    6. Note: Remember to look at causation!
    7. b. The Mental State – “Mens Rea”
      1. i. Specific and General Intent – know what kind of mental state is needed for each crime?
      2. ii. Model Penal Code – 4 mental states for all crimes (must act w/ 1 of 4 for each element of the offense)
        
        Purposely – must be their conscious object (they specifically intend) to cause each material element
        
        Knowingly – must be aware of his conduct and the attendant circumstances. Require that he is aware that it is practically certain that his conduct will cause such a result
        
        3 ways of knowing: (1) you just know; (2) knowledge of high probability; and (3) willful blindness
    8. Recklessly – a person acts recklessly to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct
    9. Negligently – a person acts negligently w/ respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct
  4. iii. Transferred Intent
    1. RULE: If a person has the intent to strike one person and in attempting to strike that person actually – accidentally strikes another person, the striking is intentional.
    2. Exceptions
      1. You can’t use transferred intent theory to enhance the crime (kid intended to hit another school kid, but hits teacher, which is a bigger offense – can’t enhance it)
      2. You can’t transfer intent from a human victim to property (kid intended to hit kid, but hits his car)
  5. iv. Recklessness and Criminal Negligence
  6. v. Strict Liability and Lack of Criminal Intent as a Defense
    1. Strict liability defenses completely erase the mental state element
    2. 2 types of crimes in criminal law:
      1. Crimes mala in se– crimes b/c the act is bad in and of itself (common law crimes)
        
        i. Murder, rape, etc.
      2. Crimes mala prohibita– crimes not b/c they are bad in and of themselves, but b/c the legislative authority makes the act criminal.
        
        i. Speed limits
        
        ii. Usually characterized as violations, not crimes
    3. For the most part, strict liability defenses are limited to crimes mala prohibita. Crimes mala in se almost always have a mental state component
    4. Roapmap in understanding when statute is strict liability
      1. Character of the Offense – if the crimes are created primarily for the purpose of singling out individual wrongdoers, then typically these crimes require a mental state. Those that have primary purpose of regulating social order do not usually require a mental state.
      2. Depends upon Possible Penalty – if crime is serious, conviction should be done w/ proof of a guilty mind. But if no possibility of jail (just a fine), then this is more a strict liability offense
  7. vi. Mistake & Ignorance
    1. Ignorance or mistake as a matter of fact or law is a defense IF
      1. The ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; OR
      2. The law so provides
    2. The defense is not available if D would be guilty of another offense had the situation been as he supposed.
    3. Ignorance of law is a defense if a statute or enactment defining the offense is not known to actor, published, or reasonably made available prior to alleged conduct OR
      1. Actor relies upon an official statement of the law, afterward determined to be invalid or erroneous contained in statute, judicial decision, opinion, or judgment, and admin. order, or official interpretation of public officer
    4. Mistake of fact (reasonable) – defense; mistake of law – no defense
    5. The Causal Connection
      1. i. TEST
        
        But for this factor, would the victim have died when and how he or she did?
        
        If answer no, that is a direct cause.
    6. Once this is determined, find the proximate cause:
      1. Who or what is morally blameworthy? Choose from the direct causes.
    7. There can be numerous direct causes, but only one proximate cause (usually one person)
  8. ii. Russian Roulette – just a matter of probability; co-players will be morally blameworthy.
  9. iii. Drag Racing cases
    1. If participant dies – other participant is not guilty of vehicular homicide
    2. Now if the 2 cars were speeding and victim’s car hit innocent 3^rd party, then D could be guilty under aiding and abetting theory.
    3. Burden of Proof
      1. i. Legal & Factual Guilt of Innocence
        
        Factual guilt is that the person factually committed the crime and factual innocence is there are no facts that show guilt
        
        Legal guilt is when prosecutor has jumped through all hoops and the trier comes back and says “guilty,” and legal innocence is a failure of proof from prosecutor’s perspective.
        
        Try to mesh factual and legal guilt – standard of beyond a reasonable doubt should closely mesh these two.

Homicides
Murder
1. i. The Malice Factor
  1. Unlawful homicide – 2 types:
    1. Murder – killing of any person w/ malice aforethought, either expressed or implied by law
      1. i. Malice means anger, hatred, and every other unlawful or unjustifiable motive.
      2. Manslaughter – the unlawful killing of another w/o malice
        
        i. Voluntary – act is committed w/ a real design and purpose to kill, but through the violence of sudden passion, occasioned by some provocation
        
        ii. Involuntary – death of another is caused by some unlawful act not accompanied by any intention to take life.
    2. Key distinction btw murder and manslaughter is malice aforethought
    3. Provocation rebuts the presumption of malice.
    4. “Malice Aforethought” – 4 mental states for murder
      1. Intent to Kill (express malice)
      2. Intent to do serious bodily harm (implied malice)
      3. Extreme reckless disregard (implied malice)
      4. Felony murder (implied malice)
    5. Degrees of Murder – distinction between 1^st and 2^nddegree murder
      1. 1^st degree murder is the intent to kill w/ premeditation and deliberation
      2. 2^nddegree murder is any of the 4 mental states that equal malice aforethought w/o premeditation or deliberation
        
        i. Intent to kill w/o premeditation or deliberation, OR
        
        ii. An unlawful killing w/ any of the other 3 mental states.
      3. *EXAM NOTE – only distinguish when there is intent to kill w/ premeditation and deliberation (this is the only rule that is universal through all states). With everything else, just say its murder
      4. Must see if the person kills w/ premeditation and deliberation
        
        i. Deliberation – consciously weigh the options (reflection); what might happens to me if I commit this crime?) It requires a cool mind that is capable of reflection
        
        ii. Premeditation – person thinks of killing beforehand; requires that the one w/ the cool mind did in fact reflect, at least for a short period of time before his act of killing
      5. There is no time requirement for D & P, but there must be some time or else it looks too much like voluntary manslaughter
      6. Even if you have premeditation and deliberation, you still have to prove the INTENT to kill.
      7. Felony murder is commonly placed w/ 1^st degree murder in statutes
  2. ii. Felony Murder
    1. The idea is that we take the malice that is inherent in the felonious conduct and input it into the murder – D will be responsible for the felony and any deaths that occur.
    2. 3 Theories for Felony Murder
      1. Proximate Cause – felon responsible for any death by setting in motion the chain of events leading to the death
      2. Modified Proximate Cause – Felon responsible for any death if the victim is “innocent.” (Depends on character of victim)
      3. Direct Cause – felon only responsible for conduct that the felon directly causes
        
        i. Done by (1) doing it, or (2) acting as an aider or abettor (acting in concert w/ another person) – responsible for that conduct.
        
        ii. Shield cases fall under this theory.
    3. 4 Limitations on Felony Murder
      1. For felony murder, the felony must be inherently dangerous (usually contained in the statute). Focus should be not be on the designation of the name of the murder, but be on the nature it was carried out.
      2. Felony must be ongoing – know when crime is a continuing crime (Salas case)
      3. The felony must be separate from the killing (can’t be an assault w/ the intent to kill b/c that’s part of the killing)
      4. Proximate cause theory
      5. b.      Voluntary Manslaughter
        
                                                                      i.      DEF: the unlawful killing w/o malice aforethought. You always have an intentional killing, but we look to see if it is excused b/c it was acted out of the heat of passion or provocation.
        
                                                                    ii.      Elements of Voluntary Manslaughter
        
        Adequate Provocation – D has to be provoked
        
        If the D was actually provoked, we measure the conduct w/ that of a reasonable person – would a reasonable person under these circumstances been provoked?
    4. Cooling Off
      1. If the D cooled off, then he is a cold blooded killer
      2. If D didn’t cool off, then we measure the conduct w/ that of a reasonable person – would a reasonable person under these circumstances have cooled off?
        
        i. If yes, murder. If no, voluntary manslaughter
      3. Must look at facts of case to see if enough time to cool off.
  3. iii. Reasonable Person Standard
    1. We don’t want a perfect person, but we also don’t want all the characteristics of the D either. So, we let the jury decide
    2. Its an objective test – weigh D’s conduct w/ that of a reasonable person
    3. Justifiable Use of Deadly Force
      1. i. This is not in the defense section b/c justifiable use of deadly force is a killing. If justified, D likely not going to be prosecuted. No social harm.
      2. ii. 5 Factors (most jurisdictions) to permit deadly force (have to meet all to be justified – if so, it’s a justified homicide; if not, its an excusable homicide)
        
        Deadly force is threatened against the D
        
        D wasn’t the initial aggressor w.r.t. deadly force (see exception below)
        
        Danger to life was imminent
        
        Force threatened was unlawful (not an arrest – lawful)
        
        D must actually and reasonably believe that a danger to life exists and the use of deadly force is necessary to avert the danger
  4. iii. Size difference between persons could be contributing factor to determine if deadly force was used.
  5. iv. Self-Defense
    1. Retreat Rule (not the majority rule)
      1. Use of deadly force not justified if the person can completely avoid it by retreating w/ complete safety by leaving, surrendering property, or by complying.
      2. “Castle Doctrine” – don’t have to retreat from your home or work
    2. Initial Aggressor – 2 ways:
      1. Start altercation regardless of force used (original aggressor)
      2. Escalate the altercation to deadly force (initial start or escalate)
      3. What we are concerned w/ is who was the initial aggressor w/ respect to deadly force.
        
        i. Whoever was the first to do so does not have a self defense claim unless that person stops, retreats, yet the other person comes after him with deadly force now.
    3. “Imperfect Self-Defense”
      1. D acts w/ subjective belief that use of deadly force was necessary, but belief not objectively reasonable
      2. Constitutes an “excusable killing” – person going to pay, but not to the greatest extent. From murder to manslaughter
    4. True Man Rule – One has a right to stand one’s ground and don’t have to retreat. Majority of states have this rule, and used as long as D is not the original aggressor.
  6. v. Defense of Others
    1. 2 doctrines bear upon the privilege to defend others:
      1. The rule that one may defend a close relative
      2. The rule that one may take life if necessary to prevent a dangerous or forcible felony.
    2. 2 Rules:
      1. Alter Ego (majority) – Person steps in the shoes of the other. Does the other have a right to self-defend?
      2. Reasonableness of Perception (modern, but still minority) – What the person reasonably believes
  7. vi. Defense of Habitation
  8. vii. Defense of Property Other than Dwelling
    1. Deadly force cannot be used unless altercation ensues to where owner can use deadly force in self-defense
  9. viii. Prevention of Felony and Apprehension of Dangerous Felons
    1. The right to take life to prevent the commission of a felony is confined to the prevention of a dangerous felony
  10. ix. Forcibly Resisting Arrest
    1. Common law rule – you can resist an illegal arrest.
      1. Not extended to illegal detentions though. Detention is temporary, whereas an arrest is a taking of your freedom for an extended period of time.
      2. Involuntary Manslaughter
        
        i. Last stop before we get to the torts side
        
        ii. DEF: unintentional killing that occurs during the course of (1) a lawful act done w/ criminal negligence or (2) an unlawful act amounting to a misdemeanor
        
        We get criminal liability from the nature of the act done – with (1), we get it from the fact that the person is engaged in criminal negligence (look to mental states above for negligence required), and w/ (2), from the fact that the person is engaged in a misdemeanor.
  11. iii. Three Rules to Know for Involuntary Manslaughter
    1. RULE – If there is an unlawful act and an accidental killing, then there is involuntary manslaughter if the unlawful act is a mala in se misdemeanor.
    2. RULE – If there is an unlawful act and an accidental killing, then no involuntary manslaughter if unlawful act is mala prohibita UNLESS the mala prohibita statute is designed to protect human life.
    3. RULE – If there is a lawful act and an accidental killing, then no involuntary manslaughter UNLESS the lawful act was done negligently
  12. iv. EXAM TIP – always remember CAUSATION
    1. Ex – Marshall case where D let friend drive his car knowing he was drunk. D not guilty of IM b/c he was not the cause. If D was present, then he would be guilty under aiding and abetting.
    2. Ex – Expired license Hypo

Sex Offenses and Related Problems
Rape (Criminal Sexual Assault)
1. i. RULE – sexual intercourse done by force and without consent
  1. Both must be met.
  2. Force and consent are tied together
    1. If w/o consent, that’s circumstantial evidence that force was used
    2. If force was used, that’s some circumstantial evidence that there was no consent.
    3. Constructive force – if the victim is incapacitated for any reason then taking advantage of such a person is constructive force b/c they cannot resist or consent
  3. ii. “By Force and Without Consent”
    1. Force – can be actual or threatened bodily harm
      1. Can’t be threatened economic harm
      2. Can be constructive (see above)
      3. Can arise as a result of deception of fact, and can be created by an atmosphere of fear.
      4. Circumstantial evidence of force is no consent
    2. Without consent – some evidence of victim not welcoming the act
      1. Some sort of resistance or reasonable apprehension of fear or inability to resist
      2. No consent is determined by the victim’s behavior – did vic resist?
        
        i. Have to know what the victim was thinking at the time.
  4. iii. Essence of the crime of rape, whether aggravated or unaggravated, is sexual intercourse w/ another compelled by force and against the victim’s will or compelled by threat of bodily harm
  5. iv. Unconscious Victims
    1. Valium case
    2. Use constructive force to get conviction
  6. v. Impaired Victims
    1. Fraud in the Factum v. Fraud in the Inducement
      1. Fraud in Fact – when victim is unconscious of the nature of the act of sexual intercourse until the same is accomplished
      2. Fraud in the Inducement – when victim is induced into the act of sexual intercourse, but consents to the actual act.
  7. vi. Acquaintance Rape
    1. Issue on consent becomes more difficult when the victim is conscious, and acquiesces from fear, rather than truly consenting. Consent issues of this sort are often raised in “acquaintance rape” cases, in which the victim has known the rapist for some time. If victim is unconscious, though, there is no ambiguity.
  8. vii. Marital Rape
    1. Raises complexity of rape cases – most difficult to demonstrate boundary between legal and unlawful conduct
    2. Virginia Code
      1. If any person has sexual intercourse w/ his or her spouse and such act is accomplished against the spouse’s will by force, threat or intimidation of or against the spouse or another, he or she shall be guilty of rape
      2. However, no person shall be found guilty unless, at the time of the alleged offense, (i) the spouses were living separate and apart, or (ii) the D caused serious physical injury to the spouse by the use of force or violence
      3. Special Issues of Proof in Rape Cases
        
        i. Rape Trauma Syndrome
        
        Expert testimony is admissible to show the jury how a victim may respond/act to an incident of rape.
        
        Freeney case – lack of memory, not trying to get help, sleeping is not unusual for a rape victim.
        
        Jury must determine whether the victim was abused and if D did it by making a connection of expert testimony on rape trauma syndrome w/ the facts.
  9. ii. “Rape Shield” Statutes
    1. RULE: Evidence of specific instances of the Victim’s prior or subsequent sexual conduct, opinion evidence of the Victim’s sexual conduct, and reputation evidence of the Vic’s sexual conduct shall be presumed to be irrelevant
    2. Exceptions:
      1. Evidence of Vic’s prior or subsequent sexual conduct w/ the actor
      2. Evidence of specific instances of sexual activity offered for the purpose of showing that the act or acts charged were or were not committed by the D (evidence showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse).
    3. Generally rape shield statutes do not bar evidence that a victim has made prior rape accusations that proved to be unfounded.
  10. iii. Sexually Dangerous Person Legislation
    1. Megan’s Law – requires sex offenders to register periodically w/ local law enforcement. Categorized by degree of re-offending.
    2. Not unconstitutional to civilly commit offenders until “they are likely not to re-offend”

Misappropriation and Related Property Offenses
Larceny & Theft
1. i. Element of Larceny
  1. A taking (by person, mechanical device, or pet trained for that purpose)
  2. and carrying away
  3. of the personal property
  4. of another
  5. w/ intent to steal
  6. ii. Larceny is a specific intent crime. If you don’t have element #5, you have only a trespass of property.
  7. iii. Taking
    1. Delivery by Mistake
      1. Common Law Rule – if recipient was unaware of mistake at the time of the taking and carrying away, but later appropriates the goods, its not larceny b/c there was no taking, and no intent to steal at the moment the D acquired control of the delivered good.
      2. Model Penal Code – A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, w/ purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.
    2. Finding of Lost Goods
      1. If abandoned, its not larceny (not “property of another”)
      2. Common Law Rule – If lost or mislaid, the property is still in constructive possession of the rightful owner and any appropriation of it was a trespassory taking.
      3. Model Penal Code – theft if, w/ the purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it
        
        i. Modern view turns on the feasibility of ascertaining the rightful owner or rightful possessor, and returning the goods.
      4. Note: Look at what the D knows and thinks at the time
    3. Bailee Misappropriation
      1. Rental car scenario – is it larceny or is it just a contractual issue when the rental car is not returned?
      2. Misappropriation occurs when D handles the property in a way that the trust is broken.
    4. Larceny by Trick
      1. Larceny by False Pretense v. Larceny by False Promise
        
        i. Deception in false pretenses goes to past or existing facts and larceny by false promise goes to promises made about the future while harboring present intent not to perform.
      2. Larceny by False Pretense
        
        i. A false pretense used to wrongfully obtain the property of another may occur by act, word, symbol, or token. A false pretense may be a false representation of past or existing fact and it need not be the sole cause inducing the owner to part w/ the property, but it must be an effective and intentional cause of the obtaining. The false pretense must also exist at the time the property is obtained.
      3. Larceny by Unilateral Mistake
        
        i. Based on the rationale that a property owner has no intent to consent to the transfer of title when he is under mistake
  8. iv. Carrying Away
    1. 1. Actus Reas of larceny = taking + carrying away
    2. Common issue is shoplifting – was it enough to constitute a taking and carrying away?
    3. Evidence of taking and carrying away also is circumstantial evidence of intent to steal.
  9. v. Personal Capable of Being Stolen
    1. CL – had to be personal property and tangible
    2. Remember intangibles can be carried away now.
  10. vi. Property of “Another”
    1. Larceny is a crime against possession, not ownership – if person from whom property is taken has superior property rights to those of the one who takes, that is sufficient
    2. Spouses
      1. CL – spouse couldn’t commit larceny on another spouse
      2. MPC – conditions under which a spouse is subject to theft:
        
                                                                                                                                              i.      The parties ceased living together as man and wife prior to the alleged theft; or
        
                                                                                                                                            ii.      The alleged theft was committed when the actor was leaving or deserting or about to leave or desert his spouse; or
        
                                                                                                                                          iii.      The actor entered into the marriage w/in 6 months prior to the alleged theft w/ the purpose of committing theft; and
        
                                                                                                                                          iv.      The property involved exceeds $500 in value exclusive of household belongings.
  11. vii. Intent to Deprive
    1. The mens rea element of larceny is the specific intent to deprive the owner or possessor of the property. Under modern statutes, however, the intent need not be to deprive permanently: one may commit theft by taking possession of good w/ the intent to appropriate the property to one’s own use w/o paying, or to deprive the owner of the possession of the property, or to deprive the owner of the value of it, for example.
      1. Mack, however, says that it really is intent to permanently deprive of property.
    2. Evidence of a taking and carrying away is circumstantial evidence of an intent to steal
    3. Robbery
      1. i. Common Law Definition – the felonious taking and carrying away of personal property of another, from his person or in his presence, by violence, or by putting him in fear.
        
        Robbery is larceny from the person or presence of another accompanied by the use of force, or by threatening the imminent use of force.
  12. ii. Robbery = Larceny + Force
  13. iii. Elements of Robbery
    1. The Mens Rea of Robbery
      1. **You must have the intent to use force and take property away from a person as a result of force. Force must be for the purpose of taking the property
      2. Robbery is a specific intent crime.
      3. Claim of Right Argument
        
        i. Can in some cases be a defense, but it must be a good faith claim of right.
      4. Value
        
        i. Its taking property that has value, not defined as D getting any pecuniary gain from it.
    2. Force or Fear
      1. How much force must be applied before a larceny from the person becomes a robbery?
      2. Sufficient force is creating some sort of resistance from the victim
        
        i. The resistance can be before or after the taking.
      3. A sudden snatching does not involve the amount of force needed to constitute a robbery.
  14. iv. Armed Robbery
    1. Greater penalty when armed w/ a dangerous weapon.
    2. All you have to prove is that the D made it clear to the victim that D had a dangerous weapon – D does not have to use or show the weapon.
    3. If fear reasonably induced, its considered dangerous.
    4. Burglary
      1. i. Common Law – Burglary consists of:
        
        Breaking and
        
        entering of the
        
        dwelling house of another,
        
        in the nighttime,
        
        with intent to commit a felony therein.
  15. ii. Modern statutes have made numerous changes to broaden the scope of burglary
  16. iii. Breaking and Entering
    1. At common law, a “breaking” or “breach” meant that the burglar must have made a trespassory entry involving the creation of an opening into the dwelling. It had to involve breaking, moving or putting aside “some material thing, part of the dwelling-house, …relied on as a security against intrusion
    2. “Constructive Breaking” – w/o physical force the burglar gains entry through fraud, deception, or threatened violence
    3. The common law “entering” element is satisfied if any part of the burglar’s body intrudes into the dwelling, even if it is only a hand or finger
    4. **Need to know that a burglary is complete at the time of the breaking and entering**
      1. CAVEAT: This is as long as the person is stepping across the threshold w/ the INTENT to commit a felony, its complete.
      2. If someone took something, that’s circumstantial evidence of intent to commit a felony.
  17. iv. Dwelling House of Another
    1. Many modern statutes extend this to commercial and uninhabited structures.
    2. Under CL, a “dwelling house” is a building habitually used as a place to sleep.
  18. v. Nighttime
    1. All jurisdictions have recognized daytime burglaries.
  19. vi. With Intent to Commit a Felony
    1. It’s intent to commit ANY FELONY, not just intent to steal.
    2. Examples where evidence would show intent – flight, attacking the victim, concealing goods or himself, resisting arrest, weapons or burglary tools w/ him when apprehended.
    3. **When you step across the threshold, you must have intent to commit a crime AT THAT TIME – Very hard to prove**

Uncompleted Criminal Conduct and Criminal Combinations
Stages of a Crime
1. i. Coming up w/ the idea
2. ii. Think about whether or not to do it
3. iii. Decide to go forward – make preparations to commit the crime (i.e., buy weapon)
4. iv. Actually perpetrate the crime (i.e., walk up to the bank)
5. v. Actually commit the crime
6. Attempt
  1. i. With attempt, we want to stop the person between stages 3 and 4.
  2. ii. Attempt = Intent + Substantial Step
    1. Intent to commit the crime and a substantial step towards committing it.
  3. iii. Model Penal Code (part that concerns us)
    1. A person is guilty of attempt to commit a crime if, acting w/ the kind of culpability otherwise required for commission of the crime, he purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
    2. Conduct that does not constitute a substantial step:
      1. Lying in wait, searching for or following the contemplated victim
      2. Enticing the contemplated victim to go to the place contemplated for the commission
      3. Reconnoitering the place contemplated for the commission
      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 for the commission that are specially designed for such unlawful use or serve no other purpose
      6. Possession, collection or fabrication of materials to be employed in the commission, at or near the place contemplated for the commission, if it serves no other purpose
      7. Soliciting an innocent agent to engage in conduct constituting an element of the crime.
    3. Conduct designed to aid another in commission of the crime
      1. A person who engages in conduct designed to aid another to commit a crime that would establish his complicity if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person
    4. Renunciation – affirmative defense
      1. When the actor’s conduct would otherwise constitute an attempt, 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
      2. Renunciation is not voluntary if it is motivated by circumstance, not present or apparent at the inception of the actor’s course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose
      3. Must be (1) voluntary and (2) complete – not voluntary when D fails to complete b/c of unanticipated difficulties (i.e., store robbery)
  4. iv. The Mens Reaof Intent: Specific Intent
    1. Inchoate crimes have a specific intent mens rea, even when the substantive crime, if completed, would require only a general intent mens rea
    2. Knowledge = general intent; Acting purposely/conscious object = specific intent
    3. Can still have attempt when victim is not the one intended by the D.
  5. v. The Actus Reusof Attempt: Substantial Step
    1. General Rule – the actor had to go beyond “mere preparation,” or in other words, that the action taken must constitute a “substantial step” toward the commission of the crime.
    2. Paluch case – one factor that shows substantial step is that the D was w/in a dangerous proximityto commit the crime. 3 things to look at:
      1. Degree of apprehension w/ respect to the crime
      2. Time – how close was the D in carrying out the crime?
      3. Geography – how close was the D to the location?
      4. Accessoryship, Aiding and Abetting
        
        i. The Law today is that everyone who helps before or during the crime is considered a “principal” as long as they act w/ the intent that the crime go forward.
        
        Principals have the same culpability as the person who commits the crime.
  6. ii. **Aiding and Abetting is not in and of itself a substantive crime. It is, rather, a means of connecting a person with a completed criminal act. It’s a theory we use to place liability on a person for the criminal conduct of another.
  7. iii. RULE: A person is guilty of aiding and abetting if the person:
    1. Knows about it, and
    2. Has the intent to promote and facilitate the crime.
  8. iv. A person is not an accomplice if:
    1. He is a victim of the offense; or
    2. The offense is so defined that his conduct is inevitably incident to its commission; or
    3. Renunciation – he terminates his complicity prior to the commission of the offense and
      1. Wholly deprives it of effectiveness in the commission of the offense; or
      2. Gives timely warning to law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense.
      3. Note: We’re looking for evidence that the person does not have the intent for the crime to go forward.
  9. v. Accomplice’s liability is not based on the liability of the person who commits the crime.
  10. vi. Accessories After the Factand Related Offenses
    1. An accessory after the fact is one who is not one of the principals who committed the crime, but who, “knowing of the commission of the felony by another, gave aid to the felon personally for the purpose of hindering the felon’s apprehension, conviction, or punishment.”
    2. An accessory after the fact, unlike the accessory before the fact, does not share in the substantive culpability of the principal felon. Post crime assistance is a separate and distinct offense against public authority
    3. Solicitation
      1. i. DEF – a person commands, hires, requests, or encourages another to commit a crime w/ the specific intentthat the other person commit a crime
        
        The actus reus of criminal solicitation is the commanding, hiring, requesting, or encouraging another person to commit a crime, and the mens rea is the specific intent that the other person commit the crime.
  11. ii. No agreement is needed for criminal solicitation, and it is irrelevant to the guilt of the one soliciting the crime that the person solicited has no intention of committing crime, as long as the D made the command, request, or encouragement with the requisite mens rea.
  12. iii. Solicitation occurs only in the limited circumstance that the person being solicited is an undercover cop w/ no intention to follow through or a person who says no to the person soliciting.
    1. **If the person being solicited says yes, the solicitation merges into a conspiracy. If the crime is then committed, we have the solicitor who will also be guilty of the crime committed under the aiding and abetting theory. In that case, a person can be charged w/ both conspiracy and the crime committed under aiding and abetting theory.
    2. Conspiracy
      1. i. DEF – must be an agreement of two or more persons by some concerted action to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means, and an overt act by one or more of the conspirators in furtherance of the conspiracy.
      2. ii. Elements of Conspiracy
        
        Agreement of two or more persons (core element)
        
        Intent
        
        An overt act by one or more of the conspirators in furtherance of the conspiracy (need not be illegal in itself)
  13. iii. Conspiracy is a substantive crime, but is also used to carry out another crime.
  14. iv. The Agreement
    1. 2 parts: (1) The Agreement, and (2) The Overt Act
    2. Multiple Agreements – Braverman- need to look at the nature of the agreement. If its one broad agreement to commit numerous substantive crimes, then its only evidence of one conspiracy.
      1. What did they contemplate as part of the agreement?
    3. Unilateral and Bilateral Conspiracies
      1. Bilateral Jurisdiction – need to have an agreement between 2 or more persons.
      2. Unilateral Jurisdiction – need only one person to agree
        
        i. Used when other person working w/ police
    4. Rule: Conspiracy is separate and distinct from the substantive crime. It doesn’t merge w/ the substantive offense (not like solicitation, where solicitation merges w/ the substantive crime)
    5. Wharton’s Rule (Exception to rule above)
      1. An agreement by 2 or more persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of 2 persons for its commission.
      2. Ex – adultery
    6. Necessary Parties
      1. Person is necessary in the crime, but they have victim status and are not guilty of the substantive crime
      2. Difference between Wharton’s Rule and Necessary Parties Rule is that in Wharton’s Rule, nobody is considered the victim – they are still guilty of the substantive crime, whereas in the Necessary Parties Rule, the person is a necessary party to the crime, but has victim status and is not guilty of the substantive crime.
    7. Husbands and Wives
      1. At common law it wasn’t allowed, but now, husbands and wives can conspire.
    8. Business Contacts
      1. Ongoing Conspiracy Rule – to become a part of an ongoing conspiracy, a person must:
        
        i. Have knowledge of the conspiracy, and
        
        ii. Have done something to further the conspiracy.
      2. Knowledge of illegal use is not enough – must know of the conspiracy.
  15. v. Scope of Co-Conspirator Liability
    1. Pinkerton Doctrine – Very fact specific
      1. A conspirator can be held liable for the acts of others that constitute a reasonably foreseeable risk arising out of the criminal conduct undertaken to effectuate the conspiracy, and occurring as the necessary or natural consequences of the conspiracy.
      2. The substantive crime must be reasonably and closely connected to the conspiracy even though those crimes may not have been within the actual contemplation of the conspirators or within the scope of the conspiracy as originally planned