Criminal Law with Ridolfi 2010

“BABY BEAR”

What crimes did principals commit/attempt (substantial step + dual intent)?
AR = Killing, MR:
Murder (malice)
1st
P+D
Felony murder
Capital
2nd
Seriously bodily harm
Depraved heart
Manslaughter (malice negated)
Voluntary
Imperfect self defense
Heat of passion
Involuntary
Rape
AR: Sexual penetration and force/threat of force
MR: General intent
AC: Nonconsensual
Assault (attempted battery)
Solicitation
AR: Asking (preparation)
MR: Dual intent
Conspiracy
AR: Agreement + overt act
MR: Dual intent
Others

What crimes/attempts (substantial step + dual intent) can be attributed to others through:
Conspiracy
Accomplice liability
AR: Assistance
MR: Dual intent

What defenses are available?
Generally
Necessity (not for murder)
Duress (not for murder)
Intoxication (for specific intent only)
Insanity
Mistake of fact
General intent = must be reasonable / not morally wrong
Specific intent = as long as it's honest
Murder
Self defense
Attempt/Accomplice Liability/Conspiracy
Abandonment

------INTRODUCTION------

What is criminal law?
Punish social harms (results or conduct) with moral condemnation to set a minimum standard
Types
Malum in se = inherently wrong (CL)
Malum prohibitum = wrong because we say so for regulatory purposes (public welfare)
Strict liability (b/c hard to figure out mens rea for speeding)
Minor penalty/stigma, so it’s ok to use it as a deterrent
Principles of punishment
Utilitarianism
Deterrence(proportional)
Specific
Incapacitation
Intimidation
General
Protection of society
Rehabilitation
Retributivism (just desserts, proportional)
Statutory Interpretation
Plain meaning
Legislative intent
Did they adopt CL? MPC?
Progression of the law
Precedent (binding and persuasive)
Criminal Procedure
Burden of production and persuasion
Prosecutor: that crime’s elements were met “beyond a reasonable doubt”
If not met, defendant is entitled to directed verdict of acquittal
Can’t ask a jury to presume an element of the offense, but can ask them to infer from totality of circumstances (even circumstantial) (Owens= drunk and asleep in car with engine on = inference of drunk driving)
Defendant: that there’s an affirmative defense (by preponderance of the evidence)
If not met, the judge will not instruct the jury on that law
Jury nullification

------ELEMENTS OF A CRIME------
D must have the necessary MR when he commits a volitional act which causes social harm (+ AC)

Actus Reus (action)
Elements
Volitional act
A willed act (you’re not blameworthy for things you can’t control, if you can prove that [Utter = couldn’t prove it was a conditioned response since he blacked out when he killed son])
Time frame: take relevant acts into consideration, not just the last one, so it coincides with MR(Decina = MR to drive knowing you’re an epileptic pairs with the AR of crashing and killing people during a seizure)
Causation of social harm
Exception
Omissions (failure to prevent harm as opposed to act which causes harm [Barber = taking someone off life support is an omission])
Only count as AR where:
Statute imposes a duty
Status relationship imposes a duty
Based on dependence(Beardsley= no duty over your mistress)
Assumed a contractual duty to care for someone
Voluntarily assumed care of a secluded person
Why?
Hard to prove MR and causation, good Samaritans can make things worse, value of autonomy(Kitty Genovese = bystander effect)
Mens Rea (“guilty mind”/culpable mental state)

Specific Intent (beyond the AR) / General Intent / Strict Liability (no MR inquiry)
Motive (ex. taking w/ intent to deprive person of his property) / No specific intent beyond the culpability shown by AR (ex. intentional application of unlawful force upon another)
If intent for AR, then MR / CL = presumption that there is an implicit MR unless it's:
1. Regulatory/public welfare offense (ex. speeding) or
2. Statutory rape
Intent to commit future act (ex. entering w/ intent to commit a felony therein)
Knowledge of AC (ex. receipt of known stolen property) / MPC = assumes at least recklessness is required (won’t punish the negligent b/c not morally blameworthy)

Types
Purposeful (intentionally)
Aware of the circumstances and it’s your conscious object to cause the result
Can infer that D intended (purpose/knowledge) the foreseeable consequences of his actions(Conley= D intended disabling injuries when he hit A with a bottle in the face)
Knowingly (intentionally)
Wasn’t your desire, but you knew it was virtually certain to occur
MPC and many courts say this includes willful blindness(rejected in Nations = D didn’t ask employee dancer if she was 18 and ostrich defense is ok)
Aware of high probability of the existence of the fact and
Deliberately fails to investigate = ostrich instruction
Recklessness
Aware and consciously disregarding an unjustified risk
Negligence (only objective measure)
RPP would know this is an unjustified risk, so it doesn’t matter if you did
RPP has D’s unusual physical but not mental characteristics
MPC also puts him in D’s subjective “situation”
Transferred intent
Legal fiction where “intent follows the bullet” even with bad aim
Purpose is to put bad aim wrongdoer in position he would have been had his aim been good
Not necessary b/c statutes don’t specify victims
Statutory analysis
Culpability vs elemental analysis
Culpability = it is sufficient D committed AR in a manner demonstrating immorality or bad character (Regina v. Cunninghamtrial judge= It was wicked to pull gas meter from the wall for change)
Elemental = you must meet the specific mental state of the statute (MPC)
What does MR modify?
If before a phrase, then generally the whole phrase
Legislative intent, grammar, and justice matter (Flores= modifies all elements that follow except those in commas)
MPC says every material element unless plainly otherwise

Attendant Circumstances(fact, not action or mental state)
The social harm has not been committed unless these are also met (ex. “while intoxicated” or having sex with a person “under 18”)

------MURDER------

AR = Unlawful killing of a human being
MR = With malice aforethought
First Degree (express malice)
Premeditated and Deliberate
MR = purposeful(Forrest = D is guilty of 1st degree murder for shooting terminally ill father in hospital)
How much time is required for P+D?
Majority = some appreciable time to consider it(Guthrie= not P+D when dishwasher suffered a panic attack and stabbed his friend)
Some Jx = an instant
Felony-murder
Definition: Guilty of murder that results from conduct during commission of a felony
MR = strict liability (intent for felony = sufficient malice)
Pros: Eases burden of proof, retribution, deters
Cons: Harsh, arbitrary and unnecessary (can usually prove recklessness, so go for depraved heart murder!)
CL limitations (since judges hate this rule)
Only inherently dangerous felonies
Majority = in abstract (Howard= traffic violations are not inherently dangerous)
Minority = as applied
In furtherance of a felony
During commission of (or escape from) a felony(Fuller= D killed someone while escaping from a cop after stealing tires from locked cars)
Consider time, distance, and causal relationship
Agency (D or co-D must have caused death [Taylor = victim shot D after co-D’s insane chattering])
Some just say proximate cause
Accomplice liability doctrine
Only if non-felons are killed
Only for unlawful killings(Sophophone = cop killed co-D when D was in cop car)
Capital murder
Statutory aggravating and mitigating factors for a jury to consider after conviction of first degree murder (bifurcated process that channels jury discretion)(Gregg= doesn’t violate the 8th Am. If bifurcated process with statutory factors)
DPC does not require state to eliminate racial disparities (slippery slope!) (McCleskey)
Can’t sentence an insane D to death (unconstitutional)
Second Degree (implied malice)
Intent to cause serious bodily harm
Depraved heart murder (extreme reckless/knowledge murder)
Malice inferred from conscious disregard for human life(Knoller= knew dogs were dangerous and there was a risk to others—doesn’t matter what the probability was)
Ex. Russian Roulette, Midgett = drunk regularly beats up his son until one day he kills him

------MANSLAUGHTER------

AR = unlawful killing of a human being
MR = without malice aforethought
Voluntary (intentional + circumstances that negate malice)
Imperfect self defense
Honest but unreasonable belief that self defense was needed
Sudden heat of passion causing adequate provocation (like an excuse defense to murder)
CL = get instruction if 4-factor RPP test is met (objective/subjective)
There must have been adequate provocation
Objective/subjective
From perspective of a RPP in D’s situation (i.e. sharing certain characteristics, but not biases), was D provoked to a certain level?
The killing must have been in the heat of passion
Majority = Objective
How would a RPP (of D’s age and sex) react to that level of provocation?(Holley = alcoholism is no excuse for bf’s reaction to gf’s provocation of “I’m cheating and you don’t have the guts to do anything”)
Minority = Subjective
How would a RPP (of D’s age and sex)in D’s situationreact to that level of provocation? (Morgan Smith = what is the standard of control expected of a person with mental health problems?)
Words alone are not enough(Girouard= army wife tells husband she wants out and asks what he’s going to do about it = no provocation)
Informational (sometimes enough is super inflamatory, but no misdirected retaliation)
Insulting
It must be a sudden heat of passion (no reasonable opportunity to cool)
Need causal connection between provocation, the passion, and the fatal act
MPC (subjective)
If D was under extreme emotional distress, then designedly ambiguous instruction (easier to get)
Words alone are ok
Consider:
D’s internal situation (room for handling diminished capacity Ds)
How D perceived external circumstance (mitigate for honest mistakes)
Ultimately: Can D’s loss of self control arouse sympathy in ordinary citizen?(Casassa = D obsessed w/ ex and killing her is too peculiar to warrant mitigation)
Involuntary(aka unintentional)
Gross Negligence (CL) / Recklessness (MPC)
Unconscious of an unjustifiable risk that is a gross deviation from RPP (Hernandez = stickers about drinking are inadmissible because what matters is if he knew effect his drinking would have on others, not on him)
Misdemeanor manslaughter (not in the MPC)

------RAPE------

Policy concerns
Penalty is so high so we want to be sure
BUT don’t want to put the victim on trial or blame her

Pre- and Post-Reform Elements

Pre-Reform / Post-Reform
Purpose /

Punish as violence
Focus on the victim

Also a crime against autonomy/privacy
Shifts focus from the victim

AR:
1. Sexual penetration and
2. Force or threat of force
Timeline matters (Alston = threats earlier or force in the past are not relevant) /

Resistance to the "utmost"
Victim's fear

Force however slight, no resistance required
If there's no "yes" then force inherent in sex could be enough (MTS = she consented to foreplay but did not say "yes" to sex = rape)
RPP's fear

AC: Nonconsensual
Freely given w/out coercion
(so not minor, under the influence, induced by fraud, unconscious, incompetent…) /

Totality of circumstances (Berkowitz = dorm room, many "no's" but no forcible compulsion = not rape)

“No” means “no”
Withdrawn consent = rape if victim:

Expressed objection,
Tried to stop, and
Defendant persisted (even w/out "force")
Primal urge rejected: how long?

(John Z = she kept saying she had to go and he kept asking for a minute to finish = rape)
MR:
General Intent(moral culpability) / AR proves MR /

Mistake of fact only allowed if:
Good faith (subjective) and
Reasonable (objective/RPP)

So there must evidence of equivocal conduct by the victim (Williams = mutually exclusive defenses to claim consensual and mistake of fact)
Marital immunity / Yes / Majority = No
What's Admissible Re: Victim? /

Prior consensual w/ D
Consensual w/ others
Sexual reputation

Prior consensual acts w/ D (relevant to MR)
Rape Shield Laws
Not about the victim, just this one act

MPC
Not usually followed (adopted pre-reform in 1962)
AR = sex with someone:
less than 10
unconscious / under the influence
compelled by force or threat (to her or third party)
MR = purposefully, knowingly, or recklessly
Partial marital immunity

------INCHOATE OFFENSES------

Definition= imperfectly formed / not completed

Assault
CL = the name for attempted battery
D must have present ability (can’t be currently impossible)
D must be within reach of P
MPC = N/A, simply “attempted battery”
Attempted assault

Attempt(sentence is half of completed crime)

mere preparation ------attempted <target offense> ------completed target offense

Types
Complete (ex. gun misfires, but you did everything you could)
Incomplete (actor is prevented by an intervening cause like the cops)
Competing policy concerns
Late intervention
More certain attempted crime was real and conviction is justified
Encourages abandonment
Early intervention
Public safety
They’re still a little blameworthy even if they might have turned back
AR
Approaches
Objectivist (the AR must speak for itself = late intervention)
Subjectivist (MR is key, so only need enough AR to prove it = early intervention)
Tests (pick the one that gives result you want based on policy concern)
Spatial Closeness Tests
Last Act (old)
You’ve done all you can do and there’s no turning back
Ex. solicitiation
Dangerous Proximity
About how much is left to do, not how much has been done (Peaslee= mere collection of materials to set on fire is not enough since D never got within .25 miles of the place)
Consider degree of potential harm and closeness to victim (Rizzo= robbers were looking for their victim but they didn’t find him before the cops got them, so no attempt)
Subjectivist Test
Only need enough AR to be comfortable MR is met
MPC Substantial Step
Must take a substantial step (doesn’t matter where in time or space) (Reeves= rat poison next to teacher’s coffee = attempt b/c no lawful purpose for having it there)
Concern is what has already been done, not what remains to be done
MPC offers a list of circumstances where you can infer attempt:
Lying in wait / searching for or following the victim / recon
Unlawfully entering the place the crime is to be committed
Possessing materials for the crime if have no lawful purpose for D
Objectivist Test (Res Ipsa Loquitur)
Act needs to speak for itself and show a 3rd person that D unequivocally intends to attempt the crime
MR = dual intent
Intent to commit the acts that constitute the actus reus of an attempt and
Specific intent required to commit target offense (Gentry= for murder, D needs specific intent to kill, not just intent to inflict seriously bodily) (ex. malice is not enough for murder)
Can’t specifically intend an unintentional (reckless/negligent) act
Ex. No attempted felony murder or involuntary manslaughter
Can you specifically intend a strict liability offense, like statutory rape, or a general intent offense, like assaulting an undercover officer?
Some say only if you know the AC (higher level of culpability than is required for the target offense) or moral wrong doctrine applies
Others say no
NOTE: Transferred intent does not apply to attempts! (evidence problems)
Specific defenses
Impossibility (ex. To Catch A Predator)
Abandonment (McCloskey = prisoner stopped trying to escape while still within the prison = no attempt)
Only if voluntary (not just b/c a cop is watching…motive matters!) and complete
Why?
Encourage people to have second thoughts
They are no longer dangerous

Solicitation(can have attempted solicitation)
AR: as soon as you ask someone to commit the target offense (preparation)
If they say YES, then solicitation often merges with CONSPIRACY
If they say NO, then still guilty of solicitation
MR: dual intent
Intent to ask another person to commit the target offense and
Specific intent to have the other person complete the target offense
See attempt MR for qualifications
Conspiracy (CL does not merge with completed offense, but MPC does)
Definition = an agreement between two or more persons to commit an unlawful act or to commit a lawful act by unlawful means (must occur prior to the act)
Types
Chain = one conspiracy
Community interest (normally the object each desires cannot succeed unless each link performs)
Parties either know the others or must have known that others were involved based on the nature/scope of the conspiracy
Ex. drug trafficking
Wheel with a rim = one big conspiracy
Rim is only present if the spokes see their involvement as part of a community interest (not just parallel objectives between similarly situated ppl)
Ex. Abortionist and minions finding women (since their jobs depended on the success of the broader illegal venture)
Wheel w/out a rim is = many small chain conspiracies(Kilgore= can’t admit one spoke’s hearsay against another)
Spokes do not know of each other since each spoke’s success is only dependent on the hub
Ex. Loan sharks
Policies (may extend to unilateral…MPC does, so feigned or misunderstood agreement counts, but not coerced)
Groups are more dangerous than individuals (more efficient, less likely to abandon), so stronger sentence and procedural benefits (hearsay of co-conspirators is admissible)
Early intervention (even earlier than attempt)
AR
Prior agreementto commit a target offense and
Can be express or implied/tacit (does it have to be specific or can it be general?)
Can infer agreement from circumstantial evidence: (Azim = D kept car running while A beat up B, so earlier agreement is inferred and overt act is driving A away)
Association with conspirators
Knowledge of the crime
Presence at the scene of the crime
Participation in the object of the conspiracy
One conspiracy charge for each agreement(Braverman = can have multiple crimes as the object of one agreement—usually initial agreement is treated as implicitly incorporating later objectives)
Usually an overt act
May be trivial and wholly preparatory (like soliciting someone else)
One conspirator’s overt act is enough to prosecute every member of the conspiracy, even those who joined after the overt act
MR = dual intent
Intent to agree and
Specific intent to accomplish the target offense(Swan= no conspiracy to commit implied malice murder b/c no intent to kill)
See attempt MR for qualifications
Can’t conspire to commit attempt
Knowledge of the conspiracy by a supplier is not enough UNLESS:
Serious crime or
Intent inferred from:(Lauria = no conspiracy where answer service knew prostitutes used it for their work but did not encourage or disproportionately gain from it)
Stake in the outcome,
Unusually high volume or
Nature of the goods is such that there is no legitimate use for them
Why? B/c don’t want to punish those carrying on a lawful business in a profitable manner unless the crime/magnitude is serious or they have criminal motives
Specific defenses(CL = to future acts of co-conspirators, but not to the conspiracy itself)
Conspiracies only end if:
Target offense is completed or
D has effectively abandoned/withdrawn by:
Communicating as much to all co-conspirators and
In some Jx, doing something to thwart the conspiracy
Effect of ending a conspiracy:
Still guilty of conspiracy
No longer liable for future acts of co-conspirators
Impossibility
Effect
Guilty of conspiracy and
Guilty of the crimes of co-conspirators (CL):
Committed in furtherance of the conspiracy (within the scope and a foreseeable consequence of the agreement) (Pinkerton = D was in jail but still liable for acts of co-conspirators b/c never withdrew)
No actual assistance required
Mergers(note: all have dual intent)

Solicitation
(preparation) / Conspiracy
(overt act) / Attempt
(substantial step in furtherance) / Completed Crime
Solicitation / -- / Some Jx / No / Yes
Conspiracy / Some Jx / -- / No / No
Attempt / No / No / -- / Yes
Completed Crime / Yes / No / Yes / --

------Accomplice Liability------