Stamp – take your victim as you find them

Homicide Differences

Common law 1st Degree Murder:

  1. Carrol

no time too short for premeditation (planning, specific intent to kill)

deadly weapon at vital part of the body (manner)

minimize importance of expert testimony

  1. Black letter law:
  1. Affirmative conduct or omission
  2. Conduct or omission must be accompanied by malice
  3. Conduct or omission must legally cause the death of a living human being
  4. Death must occur within a year and day after the conduct that caused fatal injury
  1. Guthrie

1. requires proof of actual reflection

Must have considered and weighed decision

  1. can use diminished capacity to negate specific intent
  2. Planning, Motive and Manner are relevant for CL 1st Degree, but not all required

CA 1st Degree Premeditated Murder

  1. Alvarez and Perez
  2. planning, motive, manner
  3. Daniels – no duration by extent of reflection that matters
  4. Experts admitted but given little weight

1st Degree Taylor

------

Common Law 2nd Degree

  1. is objective, not much to talk about
  2. Implied malice (4 ways show implied malice)
  1. Abandoned and Malignant Heart (wanton disregard for human life and intent to do great bodily harm)
  2. Felony Murder not 1st Degree
  3. Intent to do Great Bodily Harm
  4. Deadly Weapon
  1. Gives less weight to base anti-social purpose than does CA
  2. Motive is not necessary
  3. No premeditation
  4. general intent
  5. Same instruction as CA, but replace “and” with “or”

An act which involves high degree of probability that death will result, done with a base anti-social purpose or done with wanton disregard for human life

  1. Unreasonable mistake of fact will not negate

CA 2nd Degree AMH

  1. Implied malice
  2. Subjective Appreciation of the Peril, high probability that death or serious bodily harm would result
  3. base anti-social purpose
  4. wanton disregard for human life
  5. specific intent – but is not negated by intoxication

2nd via Anderson result – no premeditation

2nd Degree Problems

Causation

Intoxication

Mistake of fact – In CA honest but unreasonable

Insanity

Duressdoes not negate implied malice

Intoxication does not negate implied malice

So if intoxication problem, use 2nd AMH

Never discuss intoxication if charge 2nd AMH

------

Felony Murder

1st – enumerated a felony, death in furtherance of felony

2nd – show death occurred during the commission of and furtherance

Limits:

Serne – specific intent

If get FM through Accomplice, never a Serne problem

Phillips(CA) – inherently dangerous

Argument: if resistance is likely, crime is inherently dangerous

Patterson

Henderson

Satchell

Merger – assaultive will merge – be sure with burglary, when entered was not with intent to do an assaultive action, i.e. rape

If burglary is going to merge b/c assaultive intent, try robbery

Canola – Limits murder to those completely over at time of death

CA – Taylor to get around it

Antick (CA)– if main provoker is killed, can’t charge others

Causation – Felony must not completely over at the time of the death

Stewart(Common Law) – if a statute can be violated in a way that is not inherently dangerous to human life, then the felony is not inherently dangerous to human life

Is it over ?

------

Defenses to FM

Duress – because will be a defense to the felony, not the murder, and without a felony you cannot have felony murder

Honest but unreasonable mistake may negate implied malice (only in CA)

------

Felony

Be sure to specify whether or not you are assuming the jurisdiction allows attempt to burglarize

------

CAUSATION

Common Law

Was intervening cause foreseeable, normal?

Measure from reasonable person perspective

------

Statute Interpretation

DA – if silent on mens rea, will say is strict liability, at most negligence

If says requires knowledge – DA will view it as recklessly

Silence means negligence in CA

Silence means negligence in MPC

Attempt

MENS REA

------

Common law /Majority: Specific intent is purposely

  1. actor has the specific intent and desire to bring about the intended result

CA: Specific intent is purposely or knowingly, can infer from knowledge that such acts will

cause crime (knowledge of likely circumstances, what D thought he was going to do, not what

he actually did)

  1. can’t have attempted assault
  2. In CA, attempt of a serious crime may only need knowingly
  3. Can have attempted burglary

MPC: Specific intent is purposely or knowingly

Acted with purpose or had belief (substantially certain) that acts would produce such result

ACTUS REAS

------

Common Law: Proximity Test

1. Rizzo – acts must come or advance very near to the accomplishment of the intended crime

Here were not guilty of attempt to rob b/c had not found or reached the presence of the person they intended to rob.

2. Focus is on what remains to be done, how certain

3. Focus on dangerous acts

PD: wants to focus on “Dangerous proximity to success”

DA: wants to focus on “Reasonable likelihood of accomplishment but forinterference”

-Was dangerously close to commission of the act

CA/Minority: Equivocality Approach

  1. Miller

Gun in the field, but did not aim, so no attempt

  1. Need not be the last proximate act
  2. Need not be ultimate step toward commission of intended crime
  3. Must be directed toward immediate consummation of intended crime
  4. If intent is clear, only need a slight act
  5. Focus is on what has already been done

MPC/Federal/Majority: Substantial Step Test

  1. Jackson

Bank robbers about to enter the building

  1. Needs to be a substantial step towards the crime
  2. Needs to be strongly corroborative of actor’s purpose
  3. Focus on what has already been done
  4. Relevant factors in determining if sufficient acts:

Gravity of the intended crime

Manifestation of Criminal Intent

Nature of acts done

Likelihood that crime will be committed

  1. more weight to intent/state of mind
  2. Wants juries to hear a lot
  3. Must do more than simply arrange an incident

DEFENSES TO ATTEMPT

------

Abandonment: MPC

  1. must be voluntary and complete
  2. Under circumstances of renunciation of criminal purpose

CA/Majority: generally no Abandonment BUT take acts to show no actus reas

Impossibility:

  1. Factual impossibility: accepted nowhere

When something happens that prevents what would have been the crime

  1. Legal impossibility: Common Law/CA/Minority

Would not be a crime even if done

3. MPC/Majority: reject any form of impossibility

4. Federal are split between minority and MPC

ATTEMPTED MURDER

------

Common law/CA/Majority: intent to kill

CA: Attempt is bifurcated so may get attempted premeditated murder, may get attempted murder via specific intent.

Attempted premeditated murder = same punishment as second degree

Attempted murder via specific intent = 5-9 years

Felony murder + felony = may give you a longer sentence

Murder via an attempted felony shows maliciousness, so can charge murder in the 1st degree via an enumerated felony

MPC: Know such acts will cause death or

Know such acts create a strong probability of death

Accomplice

Be careful not to assume that b/c have conspiracy automatically have accomplice

MENS REA

------

Common law/Federal/Majority

  1. Hicks– intent or purpose to encourage or facilitate the commission of a crime
  2. Need specific intent to aid, encourage, and abet the principal to help bring about the crime
  3. must intend to encourage the result
  4. D is liable for all reasonably foreseeable consequences of the crime

CA

  1. Beeman 1

Knowledge of the principal’s criminal purpose andintent or purpose to encourage or facilitate the commission of a crime

Hicks + knowledge of principal’s purpose

  1. Beeman 2

Accomplice liable for other crimes if the other crimes committed by the principal are the natural and probableconsequences of acts that the accomplice knowinglyandintentionally aids

-gets accomplice for unintended crimes as well

Policy that aiders and abettors should be reasonably responsible forthe criminal harms they have naturally, probably and foreseeably put in motion.

  1. Fountain

Knowledge is enough to infer purpose

MPC/Minority

  1. Purpose is to promote or facilitate commission of the crime
  2. Mere knowledge is insufficient

ACTUS REAS & SCOPE OF LIABILITY

------

Common law

  1. mere presence not enough
  2. Need mere presence + something affirmative
  3. Failure to perform a legal duty is a sufficient act
  4. Requisite act is implied if conspiracy is proven
  5. Will use McVayandAbbott
  1. D liable for natural and probable consequences of
  2. Acts that D knowingly and intentionally aids (measured objectively – foreseeable consequences)
  3. Policy: inherently dangerous, played a necessary role in the crime
  4. Discuss if Alvarez limits are on McVay and Abbott
  1. PinkertonandAlvarez accepted

If accomplice under either, there are no defenses

MUST SPECIFY IN PAST YEARS WAS MAJORITY, DESPITE BOOK

CA

  1. mere presence is not enough
  2. Need mere presence + something affirmative
  3. Requisite act is implied if conspiracy is proven
  4. Beeman II

CA version of McVay and Abbott – to get D for other crimes

(try this for FM)

  1. Liable for natural and probably consequences of acts that accomplice knowingly and intentionally aides
  1. PinkertonandAlvarezaccepted

If accomplice under either, there are no defenses

  1. Can charge accessory after the fact

Must have known was helping

MPC

  1. §2.06 omission = if D has a legal duty to prevent the offense and does not, with the purpose of promoting or facilitating the crime
  2. If actor complete neither crime nor attempt, D is guilty of nothing
  3. Tally – merely needs intent to make it easier on criminal or more difficult on victim

Even if unknown to main actors, may be convicted of aiding and abetting

  1. D is only liable for crime that he purposefully aids

Majority

1. need to show actus reas to promote the crime of the principal

ACCESSORY AFTER THE FACT

------

CA – after a felony has been committed, harbors, conceals, or aids principal in such a felony, with the intent that said principal may avoid or escape from arrest, trail, conviction, or punishment, having knowledge that principal has committed, charged with or convicted of said felony

DEFENSES TO ACCOMPLICE LIABILITY

------

MPC–Renunciation

  1. must communicate
  2. must thwart the crime

CA - Withdrawal

  1. you have to say that you do not want to be involved and you have to thwart

issue: who do you have to renunciate to?

Majority - Abandonment

  1. nearly impossible
  2. must go to authorities and try to stop the crime

Nirvana – argue that they must make a good faith effort to thwart the crime

Conspiracy

Accomplice Liability v. Conspiracy

  1. Accomplice does not need an agreement, just actus reas + mens rea
  2. Agreement is necessary in conspiracy

Attempt v. Conspiracy

  1. Attempt requires a substantial step
  2. Conspiracy does not require much of an act
  3. Conspiracy requires an agreement
  4. Can get D twice with conspiracy
  5. Co-Conspirators can be liable even if other person is acquitted

Policy

  1. Prevent group activity b/c can be more dangerous

Organized crime

Collective crime is more likely to cause harm

  1. Harder to stop if more than 1 person involved
  2. Serves society b/c don’t want to wait until the last act occurs
  3. Could be argued is punishing thoughts

Advantages

  1. Can get D for 2 crimes
  2. Not much of an act required
  3. Hearsay RuleKrulewich
  4. one can testify to what they personally observed
  5. not open to cross examination
  6. not sworn statement
  7. Can consider for conspiracy charge but not for substantive crime
  8. Lilly – 2 ways avoid cross examination

1. hearsay statements falling within firmly rooted exception

2. have particularized guarantees of trustworthiness

  1. Bourjaily–firmly rooted statements without guarantees of trustworthiness are allowed, including statements by coconspirators
  2. CA does not accept hearsay unless conspiracy also proved by some independent evidence

People v. Hardy

  1. Majority – accept hearsay and just have judge give admonition
  2. Hearsay exception: a co-conspirator’s statements against a co-conspirator are admissible as exceptions to the hearsay rule only if they were made in furtherance of the conspiracy
  1. Venue – DA can hold trial anywhere
  2. Possible joint trial conspiracy and substantive crime, with all Defendants

General Rule: Accomplice is held liable for any and all crimes which result from the furtherance of the conspiracy (MPC may be exception)

Can’t agree if: infant, undercover cop, have the inability to agree

Federal Law: specific intent to conspire or knowledge of conspiracy

-agreement is act

-Policy: conspiracy naturally in secret just need to show conspiracy from the facts

-Feola: if crime is strict liability, mistake of fact doesn’t matter, can still charge conspiracy

-Interstate– use similar approach, how to know that concerted action is contemplated, even though CL and Majority do not accept it, can use facts like knowledge or concerted action to infer

Can use to show silent acquiescence or refusal to state disagreement

Majority & Federal

Alvarez En Banc: Intent to do unlawful objective means intent to agree

Agreement = knowledge of the essentials of the conspiracy

Common law

  1. specific intent to agree
  2. bilateral agreement
  3. Agreementis the overtact
  4. Knowledge of all details not required and all D’s need not know each other
  5. Pinkerton – act in furtherance of conspiracy, reasonably foreseen or natural consequence
  6. Alvarez – actual knowledge of some circumstances leading to crime + more than minor participant

CA (Need: specific intent to agree, bilateral agreement, slightact)

  1. bilateral agreement
  2. requires specific intent to join the conspiracy
  3. Lauria can infer specific intent via knowledge plus:
  4. acquires a stake in the venture
  5. no legitimate use for goods
  6. Buyer grossly buys disproportionate volume to legitimate demand,or
  7. Sales amount to high proportion of seller’s total business, or
  8. Serious crime
  9. Must be: CA, charge conspiracy, used for mens rea, merchant
  10. Requires a slight act
  11. act may be any act taken in furtherance of the felony
  12. Don’t need overt act if:

1. Contemplated crime is serious,

2. Is likely of completion and

3. Is likely to encourage future criminal activities

  1. Pinkerton – not majority

If the substantive act done by co-conspirator is:

  1. Intentional acts
  2. act in furtherance of conspiracy
  3. within the scope of the unlawful act
  4. merely part of the crime and could be reasonably foreseen as necessary or natural consequence of the unlawful agreement
  5. focus on reasonable person perspective
  6. may include unintentional deaths – (C/L 2nd AMH or involuntary)

difficult to apply to intentional deaths that were not part of plan

  1. Only need to prove 1 of 3 elements (furtherance, scope, natural consequence)
  1. Alvarez – not majority
  2. Unintentional acts
  3. more than a minor player in the conspiracy or

knowledge of some circumstances around substantive crime

  1. Possibility – may be able to charge for crimes committed by non-co-conspirator
  1. Pinkerton and Alvarez are not brought up when issue of conspiracy is done, even if it is done via transferred intent
  2. Luparello – liability is extended to the actual crime committed, rather than the planer or intended crime, on the

MPC

1. Unilateral agreement (Garciasuggests this is now majority)

2. Need purposeto facilitate the conspiracy’s commission

3. Don’t need an act if there is a serious crime

(1st of 2nd degree felony b/c greater importance is prevention)

4. If a less serious crime then you need agreement and overt act

a. overt act can be any act taken in furtherance

Does not accept Pinkerton or Alvarez

Majority

  1. specific intent to agree
  2. Might accept Pinkerton or Alvarez, argue past policy and book is suggestion
  3. bilateral traditionally, but Garciasuggests majority now is unilateral
  4. Mens rea for conspiracy requires specific intent for one or more of the crucial elements of the substantive offense
  5. Jury can infer from the facts that they have common purpose/plan

Nirvana

Majority and Common Law rejectInterstate, but may still be able to infer agreement by actions or non-actions

Can use it to show silent acquiescence or refusal to state disagreement

Beeman II, McVay &Abbott, Alvarez, – must charge accomplice with unintended version of the crime/murder

Types of Conspiracies

------

Spokes and wheel

  1. Kotteakos
  2. Actors not dependant on each other, only connected in the center
  3. A lot of small conspiracies
  4. no common objective

but must have knowledge of common purpose

  1. D does not have a relationship with the others, only relationship is with center
  2. If spoke is only dealing with the hub, and only has knowledge of the other spokes, but does not care about their success, it takes more than knowledge to make him liable for their crimes

Chain of conspiracy

  1. Blumenthal– DA wants this test
  2. One act, one agreement, one end
  3. Rule: Must have known that others unknown to them were sharing in project (objective standard)
  4. They were dependent on each other’s success

Limits on Conspiracy

------

Wharton Rule – only used when a substantive crime is committed

  1. If cooperation is included and required by the substantive crime, you cannot be convicted of conspiracy

i.e. dueling, adultery

  1. However, can charge with conspiracy instead of substantive crime if there were more participants than logically necessary

i.e. charge 5 for adultery

3. Can charge is substantive crime is not completed, but merely attempted

4. DA, to get around it will add more D’s than substantive crime requires

5. MPC rejects Wharton

Defenses to Conspiracy

------

Renunciation: accepted by MPC/Majority

  1. must be complete and voluntary
  2. Sufficient to make reasonable person believe
  3. No act of withdrawal when substantive crime has occurred

Abandonment: MPC

  1. Severs D’s liability for future acts, but still liable for what he did up to that point
  2. Must let others know
  3. Must attempt to thwart the conspiracy

CA – renunciation – whole excuse

  1. must communicate
  2. must make good faith effort to thwart

Majority – accept renunciation or abandonment defenses

CL – Renunciation

1. must thwart

Always want renunciation over abandonment b/c renunciation is a full defense, even to the conspiracy itself, while abandonment still leaves you guilty of conspiracy and clearly requires communication

Punishments

------

Majority: less than the substantive crime

CA/Minority: more in some cases; conspiracy to commit a misdemeanor is a felony

Conspiracy to commit murder is 25-life

MPC: same punishment except for if the substantive crime is 1st degree felony, would be punished as if was 2nd

Defenses