Law A505B, Spring 2004
Criminal Law

Questions & Answers (in Italics)

4-10-04 : Mens Rea

Professor McMurtrie, I'm afraid I'm still a bit confused, and hope it's not that I just wasn't listening carefully enough. In class, I thought I understood you to say that courts typically do not require the statutory mens rea with regard to "attendant circumstances." The text, however, says that "some element of mental culpability [must be] proved with respect to each material element of the offense," and includes "attendant circumstances" among those material elements (p. 208). Also, one of the slides in class pointed our attention to MPC §2.02(4), which seems to be the basis for the text's assertion. Maybe I'm not understanding the qualification "without distinguishing among the material elements" in that section? Thanks in advance for any clarification. . . .

The language that you cite on p. 208 is from the Model Penal Code. The MPC has set forth specific rules for statutory interpretation, including requiring a mens rea for each material element of the crime, including attendant circumstances elements. However, state courts have not uniformly adopted the rules of statutory interpretation of the MPC. As a very general trend, courts tend to apply a mens rea to the conduct and result elements and not the attendant circumstances. But again, what courts are trying to do is determine what the legislature had in mind when they wrote the statute. And they will look to the language of the statute, legislative intent and history, and policy in order to interpret the statute. Hope this helps, Jackie McMurtrie

4-10-04: Strict Liability

I had a couple of questions from this morning's lecture. I was wondering if 1) The public welfare doctrine is only seen in the federal system or also seen in state courts?

State courts, as well as federal courts, examine whether a crime is a public welfare v. common law offense when analyzing mens rea issues.

and 2) Does the statement that courts generally tend to read a mens rea requirement for conduct and not for AC apply to both the federal and state systems?

Yes - although again the statement is a very broad generalization of a trend that courts follow.

4-18-04: Omissions

Hello Professor, I was reviewing omissions over the weekend, and I wanted to clarify one point. For cases involving legal duty to aid (such as relationship status, voluntary assumption of care to the exclusion of others, etc.), these can sometimes be strictly common law crimes, correct? (i.e. - when we talked in class that a duty could be established by Tort law, were we essentially saying that we didn’t need a criminal statute to convict?)

The crimes are, in modern times, defined by statute. The legal duty to act can come from the doctrine that developed at common law (e.g. status relationships); and from the law of Torts, contracts or through a statute.

The individual will still be prosecuted under a criminal statute (e.g. manslaugher) under the theory that his or her failure to act caused the result (e.g. death) and that failure to act was accompanied by a duty to act.

For instance, in Stone & Dobinson, where defendants were convicted of manslaughter when the sister under their care starved to death, the case didn’t say whether or not there was a statute making the caregivers liable. Therefore, I wasn’t sure if this was just a common law crime of omission or if there was a statute. (I understand that they were liable b/c they voluntarily assumed the care to the exclusion of others, but I am not sure if we also need a statute codifying the duty).

There is not a crime called omissions. And many states don't have a statute, similar to MPC 2.01 that defines when a person has a duty to act. So, the legal duty to act can come from status relationships, contracts, torts or from a statutue (like the statute that requres you to pay your taxes).

Anyhow, if you could confirm that I am correct in my thinking that there does not need to be a statute in order to convict people of omissions under certain circumstances, I would appreciate it!

I hope that clarifies your questions - let me know if you have any other questions. Jackie McMurtrie

4-19-04: Homicide

Hi there Professor McMurtrie: I had a couple of questions from lecture this morning. 1) I was a little confused by the PA homicide statute. If murder in the first degree is anything intentional (regardless of premeditation or deliberation) and murder in the second degree is everything else, what is murder in the third degree?

We were looking at an older version of the PA statute, which is at the top of p. 396. Murder was, at the time, divided into 1st and 2nd degree and that statute served as the basis for my powerpoint slide. The more recent statute (on pp. 391-92) divides murder into 3 degrees and changes the ways that the crimes are defined (1st = intentional, 2nd = felony murder, 3 = "other" murder, e.g. reckless killing).

And, if murder in the second degree is everything else does the statute specifcially say: "A criminal homicide constitutes murder of the second degree when it is committed wile defendant was engaged as a principal or an accomplice in ther perpetration of a felony"

See above.

2) Do spousal and elder abuse fall under the WA homicide by abuse statute?

Only children under sixteen years of age, developmentally disabled persons, or dependent adults fall under the Homicide by Abuse statute. A dependent adult is means a person who, because of physical or mental disability, or because of extreme advanced age, is dependent upon another person to provide the basic necessities of life.

5-05-04: Accomplice Liability

Professor McMurtrie, Is there a fine line being drawn between condoning an act and aiding in its commission? If someone says, "I'm going to go rob that store." and another person says, "good luck." - is this encouragement enough to convict the well-wisher?

Could be - as we'll see when we look at the actus reus requirement, the actual assistance provided can be minimal and there is no requirement that the aid be the "but for" cause of the principal's crime.

What about giving someone a rabbit's foot?

Question would be whether or not this provided the principal with actual assistance or encouragement.

What if A tells would-be robber B to make sure B gets enough to pay A back for his debt to A?

Interesting - the issue would be whether A intends to assist B in the commission of the crime and whether the words provide actual assistance or encouragement. A is not really associating himself with the venture, and may not be providing encouragement or assistance.

- I'm sorry, I couldn't discern the distinction from our discussion in class today.

Let me know if you have other questions. Jackie McMurtrie

5-12-04: Accomplice Liability

How can the distinction in liability for accomplices between excuse and justification be justified in terms of the ideas of retribution or utilitarianism? I know that everyone is assumed to have full knowledge of the law, but that seems so unlikely it it hard for me to accept in this case.

Generally with justification defenses, society agrees that the defendant did the right thing and made a good choice (e.g. protected herself from harm in a self-defense situation). So, if the defendant did the right thing and made a good choice, there is no culpable action on her part (retribution), nor would we seek to deter her or others from engaging in similar conduct. With an excuse defense, we forgive and understand the defendant's actions, but don't say that the defendant did the right thing or made the right choice. An excerpt on p. 750 explains the difference as well. However, the lines between justification and excuse defense are not always clear, as we will see when we start the section on defenses.

5-13-04: Accomplice, Vicarious, Derivative Liability

Hi there Professor McMurtrie:

I just want to make sure that I understand the difference between derivative and vicarious liability. If I understand it correctly vicarious liability stems out of a relationship v. derivative liablity where liability is based on a conscious association by one party to another party i.e. the conduct flows from the principle to the accomplice. What I am unclear about is if any of the cases we read on accomplice liability ever showed an example where a person was convicted of being an accomplice based on a theory of vicarious liability. It seems to me that it would be impossible because there needs to be dual intent on the part of the accomplice but under a vicarious liabilty theory there does not even have to be knowledge of crime, let alone intent to facilitate the crime. Am I understanding the theories correctly or missing something?

Thanks for your help.

I think that I made things more complicated in class than they need to be.

Accomplice liability is derivative in nature. That is to say, an accomplice is not guilty of an independent offense of "aiding and abetting," instead the accomplice derives liability from the principal's acts and is convicted of any offense committed by the principal.

Vicarious Liability is liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) because of the relationship between the two parties.

Accomplice liability does not involve imposing liability on one party for the wrongs of another solely because of the relationship between the parties. Liability requires action by the secondary actor (accomplice) -, intentional action designed to persuade or help--that makes it appropriate to blame him/her for what the primary actor does.

And so, a person could not be convicted of being an accomplice based solely on a theory of vicarious liability - there would have to be culpability and conduct on the part of the secondary actor (accomplice) to impose liability.

Let me know if you have any other questions.

Jackie McMurtrie

5-13-04: Accomplice, Vicarious, Derivative Liability

Prof McMurtrie,

despite the question in class today - and your reply - i am a bit unclear still on the definitions of and relationship amongst these terms:

- vicarious liability - derivative liability - accessorial liability

Might you be able to clear up my confusion?

I think that I made things more complicated in class than they need to be.

Accomplice/Accessorial liability is derivative in nature. That is to say, an accomplice is not guilty of an independent offense of "aiding and abetting," instead the accomplice derives liability from the principal's acts and is convicted of any offense committed by the principal.

Vicarious Liability is liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) because of the relationship between the two parties.

Accomplice/Accessorial liability does not involve imposing liability on one party for the wrongs of another solely because of the relationship between the parties. Liability requires action by the secondary actor (accomplice) -, intentional action designed to persuade or help--that makes it appropriate to blame him/her for what the primary actor does.

And so, a person could not be convicted of being an accomplice based solely on a theory of vicarious liability - there would have to be culpability and conduct on the part of the secondary actor (accomplice) to impose liability.

Let me know if you have any other questions.

Jackie McMurtrie

5-13-04: Conspiracy

Professor McMurtrie,

I had a couple of questions:

Is this correct?

Accomplice liability = liability of the member of a conspiracy

Accomplice Liability is criminal responsibility of one who acts with another before, during, or after a crime. It is a theory of liability under which a secondary party (the accomplice) can be responsible for the actions of the primary party (the principal).

Complicity = one acting in furtherance of the conspiracy

Complicity is the association or participation in a criminal act; the act or state of being an accomplice.

Conspiracy = an agreement by two or more persons to commit a crime

Yes.

Also, in these hypotheticals that were talking about today (pg. 690), if B and C are acting independently but for the purpose of the same conspiracy run by A, do they need to have knowledge of the conspiracy to be liable under Pinkerton?

They do need to have knowledge of the nature of the conspiracy - in the language of Pinkerton, they have to have "joined in an unlawful scheme."

And for the complicity requirement (dual intent) could it be argued that the acts of each B and C were aiding (encouraging) the acts of teh other? Is aiding different than encouraging? More objectively testable?

Under the facts as presented in the hypothetical, it would be very difficult to show that A & B provided actual assistance to each other in the commission of their respective robberies merely by entering into the conspiracy. It would also be difficult to show that any such encouragement was purposeful or that each had a stake in the other's venture. Although they knew of each other's assignment, they had not met face to face and there is no indication that they provided any type of encouragement to each other. And because the mens rea is one of intent - the measurement is subjective, rather than objective.

5-13-04: Accomplice Liability

Professor McMurtrie,

I’m confused about the MPC approach to accomplice liability. As I understood it, there only has to be an attempt to aid, not actual aid, and this is the distinction from common law. But that doesn’t seem to jive with my notes – which seem to go both ways. There were two specific examples given in class:

- D shouted to Rowe to kill the other guy, but Rowe was deaf. I have that D would not be liable since no actual aid

Under the MPC approach, D. would be liable because he attempted to aid Rowe. See MPC 2.06(3)(ii). Under the accomplice liability doctrine, as it developed at common law, D. would not be liable because he did not provide actual aid.

- D wants Rowe to kill other guy, and “aids” him by sticking pins in a voodoo doll intending Rowe to die. I have that D would be liable, since aid doesn’t have to be reasonable.

Same reasoning applies here. Under the MPC, he still attempted to aid D., regardless of whether actual aid was provided. But under the common law doctrine, he did not provide actual aid (unless you could somehow show that Rowe derived encouragement from the voodoo ceremony performed by D).

Let me know if you have any other questions.

5-20-04: Defense of Property

Did I hear you correctly this morning (toward the end of the class period)? I heard (and wrote) this down:

"In many jurisdictions, the right to use deadly force in protection of property is much greater than the right to use deadly force in protection of person."

If so, could you elaborate with 1-2 sentences? Thank you. If not, please correct.

I was referring to the fact that the proportionality element, which is present in an analysis of when deadly force can be used in self-defense, is not always present in an analysis of when deadly force used in the protection of property.

The New York statute (p. 801) allows the use of deadly physical force which the actor believes is reasonably necessary to prevent or terminate the commission or attempted commission of a burglary of a dwelling or building, without regard to whether the actor is in fear of serious bodily harm.

The Colorado statute allows the use of deadly force when the actor reasonably believes that the other person "might use any physical force, no matter how slight, against the occupant."

In contrast, a person using deadly force in self defense has to show that he or she was in imminent peril of death or serious bodily harm.

Let me know if you have other questions.

5-20-04: Accomplice Liability

Is the mens rea required under the common law accomplice liability doctrine ever met by recklessly aiding or negligently aiding?



Under the common law doctrine (as enunciated in Hicks), an accomplice has to intend to aid the principal in the conduct that constitutes the the crime. Negligence or recklessness aid is not sufficient.


The analysis under the Luperello doctrine would be different.


(But, as we saw in the McVay case, negligence or recklessness may be sufficient if the conduct that the accomplice intentionally aided has an unintended result).

5-24-04: Necessity

2 MPC Necessity questions:



Where does it state that it must be an “honest belief?” – Or I guess that is just by default because it doesn’t require a reasonable belief?


MPC 3.02(1) talks about "conduct which the actor believes to be necessary." There is no requirement that the belief be reasonable, only that it be a belief held (i.e. honest) by the actor. But as we discussed in class the actor's culpability will be assessed under 3.02(2) and he or she could be guilty of an offense that has a recklessness or negligence mens rea if the belief is reckless or negligent.

3.02(2) - “Where an actor is reckless or negligent in bringing about the situation….” When I read this I thought it meant that if D is reckless or negligent in bringing about the situation, he cannot raise the necessity defense – HOWEVER, if he causes a death recklessly or negligently he may be only guilty of manslaughter or negligent homicide. So for example, if the D had recklessly thrown the food overboard, and then had killed (assuming that otherwise necessity would have been appropriate) – he wouldn’t have been able to raise the applicable necessity defense – and reckless manslaughter wouldn’t have applied. (Although maybe extreme emotional disturbance would have made it manslaughter). That doesn’t seem the same as what you were explaining this morning. How could the boat guys have raised the necessity defense?


The necessity/choice of evils defense is only raised in situations where the defendant exercises a choice and hence engages in a purposeful act. It will not be raised for crimes that have a mens rea of recklesssness or negligence because they do not involve purposeful choices.

The MPC states that if an actor is reckless or negligent in bringing about the situation that caused the actor to exercise the purposeful choice and consequently break the law, that person can still raise the necessity defense for a crime that has a mens rea of purpose. However the actor will not prevail with the necessity/choice of evils defense for a crime that has a mens rea of recklessness (if he or she was reckless in bringing about the situation) or negligence (if he or she was negligent in bringing about the situation).

What the MPC defense does (much like the provocation or EED defense) is allow an intentional action to be mitigated to a lesser crime. That is in contrast to the doctrine as it developed at common law which would prohibit the necessity defense being raised in a situtation where the actor was at fault in bringing about the situation or when the actor was unreasonable in his/her assessment of the need to break the law to avoid a greater evil.

This is complicated, so let me know if you have any more questions. Jackie McMurtrie

5-26-04: Intoxication

Hi there Professor McMurtrie:

I have a question about voluntary intoxication. As far as I could find, the MPC does not address the consequences of voluntary intoxication. Does that mean the common law rule applies and voluntary intoxication is only a defense if it has caused a person to go insane?

We'll talk about this more today. The MPC allows voluntary intoxication to be raised as a defense under 2.08(1) if "it negatives an element of the offense." So, it can be offered, as a failure of proof defense, to show that the defendant did not have the necessary mens rea for the crime.

5-27-04: Intoxication

For involuntary intoxication – does the common law allow intoxication to be used to negate the mens rea too (like MPC)? Or is involuntary intoxication only allowed to be used if it renders the D insane?

Yes, even the state of Montana, allows involuntary intoxication to be used as a defense if it negates the mens rea (while prohibiting voluntary intoxication from being used in the same fashion)

Because in People v. Kingston the court stated that involuntary intoxication does not negate the mens rea necessary for criminal liability. When a drug removes a person’s inhibitions, it may allow him to commit an act which he is otherwise inclined to do but possessed sufficient self-control to avoid. ~ It’s more appropriate to use the concept of diminished capacity, rather than create a complete defense. Is Kingston representative?

The House of Lords in Kingston accepted the trials court's ruling on when involuntary intoxication could be used as a defense. It reversed the Court of Appeal decision (set forth by Lord Taylor of Gosforth). The point of Kingston is that if a defendant commits a crime that he wouldn't commit while sober, because his inhibitions have been lowered by the ingestion of involuntary intoxicants, he is still guilty of the offense. In Kingston , the defendant was arguing that even though his act was intentional, (i.e. even though he intended to commit an indecent assault), he shouldn't be held responsible because the intent arose out of the circumstances of his involuntary drugging. The House of Lords rejected this broad reading of the principle of mens rea, concluding as the trial court did, that "a drugged intent is still an intent."

Kingston is representative - if the defendant has committed the act with the mens rea that is set forth in the definition of the crime, he or she is guilty of the crime. The only exception is when the defendant became involuntarily intoxicated and suffered from a condition of temporary insanity. (not present in Kingston ).

[A diminished capacity defense (which we did not study) is appropriate when the defendant states that he or she did not required mens rea required because of intoxication or mental illness].

5-28-04: Death Penalty

Prof. McMurtrie:

I have two questions:

1) To clarify something you said in class: Is it really no longer debatable whether the death penalty has a deterrent effect? Even its strong proponents point to its retributive effect only?

There are a few people who maintain that the death penalty has a deterrent effect, but their analyses have been called into question by the majority of criminalists who study this issue. The Death Penalty Information Center, discusses the issue of deterrence on its website.
http://www.deathpenaltyinfo.org/article.php?scid=12&did=167

The information that the DPIC has on its website comes from all different kinds of sources, but, the DPIC is an advocacy group that opposes the death penalty and therefore (like me) may not be an unbiased source of information.

And so, I would also refer you to a book that I recently read by Scott Turow titled "Ultimate Punishment: A Lawyer's Reflections on Death with the Death Penalty." Scott Turow, as well as being an author of best-selling novels, is a former prosecutor, a lawyer who represented a death row inmate (who was guilty) on a pro bono basis and a person who served as a member of Gov. Ryan's blue ribbon Commission on the Death Penalty. Scott Turow came to the issue as an agnostic and his book thoughtfully discusses the pros and cons of the death penalty.

2) What is your best estimate of the percentage of those put to death who are innocent? (I know this is a tough question to answer accurately. I just want your subjective opinion.)

I can't really put a figure on the number of people who are put to death who are innocent. In their book "In Spite of Innocence," published in 1992, Radelet, Bedau and Putman review 400 stories of "innocent Americans convicted of capital crimes." Twenty three of those individuals were executed for crimes that the authors conclude they did not commit. There have been 13 people on death row who were exonerated after DNA evidence proved they were innocent. One of the people, Frank Lee Smith, died on Florida's death row before the DNA test exonerating him was completed. He spent 14 years on death row before succumbing to a heart attack.

Who knows how many people were executed for crimes they did not commit prior to the advent of DNA testing? And in many cases there is no evidence that can be subject to DNA testing, but the factors that are known to lead to conviction of the innocent (mistaken eyewitness identification, government misconduct & ineffective assistance of counsel) are present.

I really have never felt strongly about the death penalty one way or the other. Consequently, I really haven't looked into it.

It may surprise you to hear that I wasn't sure what my position was on the death penalty while I was in law school. I began to oppose the death penalty early in my legal career because it is administered unfairly -people of color and people who are poor are more likely to receive the death penalty than people who are wealthy and white.

My work with the Innocence Project has only strengthened my opposition to the death penalty.

5-28-04: Self-defense

Hi Professor, I have in my notes that the MPC eliminates the imminence requirement in self defense, replacing it with “if immediately necessary in the present occasion.” I don’t understand what the difference is on a concrete level. I remember the example of under MPC a battered woman could shoot her husband in the back if he was going to get a gun, but under common law she couldn’t. I don’t understand how that would be “immediately necessary” but not “imminent.” Can you help me figure out where to draw the dotted line that separates the two?

The shift in language from "imminence" to "immediately necessary" authorizes self-protective force sooner than may be allowed at common law. In your example, the wife could not meet the imminence requirement, because the husband did not yet represent and imminent threat (i.e. he wasn't facing her and threatening her with a gun or other deadly weapon). However under the MPC, the wife would be justified in using deadly force if she believed she could not afford to wait until the husband returned with a weapon.

Few dotted lines exist in criminal law, but the general principle again is that the MPC would allow force to be used earlier than it was allowed under the common law test of imminence.

5-28-04: Intoxication

Would you mind giving me an example of how intoxication would negate the mens rea under Kingston?

The crime is defined as intent to commit an indecent assault. This is a stretch, if the defendant was so drunk that he thought he was patting the victim on the knee, rather than whatever it was that he was doing (unclear from the edited text we have in the casebook), then the mens rea of the crime would be negated.

If you were so drunk you didn’t know what you were doing? – Would that make you insane?

If the defendant was so drunk that s/he didn't know right from wrong (which would be difficult to show because s/he would have to not know that committing an indecent assault was against the law or society's morals) or that that s/he didn't know the nature of the act that s/he was doing (see above) then yes, that would meet the test of insanity.

That didn't seem to be the case in Kingston.

If you were so drunk that you accidentally killed someone à then you would just be reckless or negligent, no?

Yes.

5-29-04: Exam Subjects

Is the test likely to have questions on rape, euthanasia or the death penalty?

Nope - I don't test on the subject of rape on the exam and we didn't cover euthanasia or the death penalty, so those topics won't be on the exam either.

5-30-04: Mens Rea for Murder

Hi Professor McMurtrie,

I have difficulty reconciling these two case. In Arzon, the court held that when a person acts with "depraved indifference to human life," it is not necessary toat the ultimate harm be intended by the actor;D was convicted because he was acting with "depraved indifference to human life," by setting fire to a couch;

In Arzon, the question was whether or not the evidence was sufficient to support the indictment for murder (the defendant had not yet gone to trial or been convicted). And you are correct that the Court held that the evidence was sufficient to show that the defendant recklessly engaged in conduct which created a grave risk of death to another person, under circumstances that evinced a depraved indifference to human life.

In Acosta, the court was talking about D didn't consciously disregarded the risk to the pilots. I can' see the mens rea differences in these two case. Is it just because they are from different jurisdictions?

The mens rea for both is the extreme recklessness, which separates manslaughter from murder. In Arzon, the Court held that when a defendant intentionally causes a serious fire in a building, he or she disregards a grave risk of death to people who might be in the building or to firefighters who respond to the scene of the fire. It would be hard for a defendant to argue that he or she was not aware of that type of risk when committing arson (intentionally setting a fire in a building).

However, in Acosta, the Court held that there was not enough evidence to show that Acosta consciously disregarded the risk to the helicopter pilots that was caused by his leading police cars on a high speed chase. There was no evidence of previous instances of helicopter crashes and therefore he could not disregard a risk that was barely foreseeable. The case would have been much different (as the defendant conceeded) if a crash had occured between cars that were on the ground.

6-1-04: EED & Duress

I have a question about duress--I am not quite clear how Extreme Emotional Disturbance comes into play in a duress defense. Is it brought out in court to show that there was duress--does an expert testify to this?

Extreme Emotional Disturbance is a defense that would, under MPC 210.3(1)(b) reduce a charge of murder from manslaughter. It would not be raised in the context of a duress defense. Duress is a defense, that if accepted by the jury, would lead to an acquittal. And so, Extreme Emotional Disturbance would not be raised within the context of a duress defense. However, the battered woman/person syndrome might be raised within the context of a duress defense to show that the battered person committed a crime because s/he feared reprisal from the batterer.

Is that what you were thinking of?

6-03-04: MPC Rules of Statutory Interpretation

Prof. McMurtrie,

How to reconcile these two statements re. MPC rules of statutory interpretation:

2.02(1) crimes require mens rea of N, at minimum

This provision indicates that the Model Penal Code does not sanction strict liability offenses. Except in cases of violations (e.g. traffic tickets), a person may not be convicted of an offense unless the prosecution proves that he or she acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense. The 'as the law may require' language is important because it presupposes that the statute will include the mens rea requirements in the definition of the crime. And it allows the legislators to require negligence as the mens rea, as long as the mens rea is set forth in the statute.

If the statute does not include the mens rea requirement, then you go to 2.02(3).

2.02(3) If the statute is silent as to mens rea for a particular element, minimum requirement is recklessness

This provision applies when the statute is silent as to mens rea, i.e. does not include the mens rea requirement. In that situation, the mens rea is recklessness (which can be satisfied by proving purpose or knowledge).

6-04-04: EED

Hi,

I'm trying to betted understand how EED fits into the grand scheme of things. Is it a kind of provocation defense? Or is it more of a necessity justification?

EED is similar to the provocation defense in that it will reduce purposeful killing from murder to manslaughter.

6-05-04: Lots of Questions

1)In a state following the dual intent theory for accomplice liablity, can an accomplice be found guilty of crimes he did not have the requisite mens rea for? For example, if an accomplice helps in a burglary but the principle commits murder in the course of the burglary, will the accomplice be liable for the murder?

Most jurisdictions have solved this problem (that the person would not be prosecuted as an accomplice to the murder, because s/he did intend to assist the principal in the commission of the murder) through the felony murder doctrine, which would allow the accomplice to the burglary to be prosecuting for a killing committed by another co-felon that occured during the course of the felony.

2)Also, is the felony-murder theory available for accomplices in either Luparello states or dual intent states?

Yes.

3) What is the common law rule for feigned principles, can the accomplice be liable if there is no derivative liability i.e. the principle was just pretending?

No. Under the rule as it developed at common law, accomplice liability is derivative in nature. Thus, the principal has to commit a crime, from which the accomplice can derive liability.

4) Does the MPC contain a doctrine similar to Pinkerton?

No.

5) For all of the MPC crimes we have studied is the standard what the person honestly believed rather than reasonable person?

This is a question that can only be answered by looking at the definition of the crime. For example, under the MPC murder can be committed if the actor causes a death either purposefully, knowingly or recklessly under circumstances manifesting an extreme indifference to human life.

Did you mean to ask about defenses rather than crimes?

6) What does corpus delicti mean? It was from Professor Aronson's lecture on evidence

Corpus delicti means "the body of the crime."

7) I kepp reading about malum prohibitum and malum in se, what do these terms mean?

Those terms are often used to describe common law (malum prohibitum) from public welfare or regulatory offenses (malum in se).

8)If a felon is killed in the comission of a felony can his partners be held for felony-murder?

It depends on who did the killing (was it a co-felon or a witness or victim?) If the killing occured at the hands of someone other than a co-felon, then upon whether the jurisdiction follows the agency (no) or proximate cause theory (yes) of liability.

6-06-04: Lots of Questions

1) Is there an exception to the feigned principle in the case of a feigned principle who is a law enforcement agent? I am having a hard time reconciling Vaden.

In Vaden, the law enforcement officer committed a crime by shooting the foxes. However, because he was a law enforcement officer, he had an excuse defense(although the case states it was a justification defense) that was personal to him and did not attach to Vaden. If the principal does not commit a crime, then there is no liability on the part of the accomplice either.

2) When I asked about honesly believes in the MPC, I did mean defenses rather than crimes. For all of the defenses does the defendant have to honestly believe he was in danger of harm?

In the area of defenses, the MPC starts by examining whether or not the defendant subjectively believes that s/he was in danger of harm. However, if the defendant was reckless or negligent in forming the belief (for the use of force against another, or with the choice of evils defense) or in placing him/herself in the situation that caused him/her to raise the choice of evils defense, the MPC adopts a multi-tiered approach to culpability (as we saw in the third negotiation exercise). For the duress defense, if the defendant was reckless in placing him/herself in a situation where s/he was subject to duress, the defense is barred.

3) I am not sure that I understand the following from the MPC (2.08); what if the actor is negligent?:

Intoxication When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.

The mens rea of negligence presumes that the defendant is unaware of the risk, and therefore the defendant's subjective level of awareness is not at issue. Negligence is measured by examining whether or not the defendant failed to be aware of a substantial risk that a wrogful act may occur and that failure constituted a gross deviation from the standard of care that a reasonable person would have exercised in the same situation. And so, intoxication is not a defense under the MPC for a crime that has a mens rea of negligence.

6-06-04: Murder and Extreme Recklessness

Hi Professor McMurtrie,

I have a question. In Arzon, the NY case where the defendant burned a couch resulting in the death of two firefighters, he was charged and convicted with second degree murder.

In Arzon, the defendant had not yet bet convicted, but was challenging his indictment on the charges and you are correct that he was charged under a theory of extreme recklessness, as well as under a theory of felony murder. I don't know whether he was convicted at trial.

In Bailey, the VA case where the neighbor manipulated the police to kill the victim, the defendant was charged with involuntary manslaughter. Different jurisdictions, I know, but why do you think the disparity between the charges? Why not charge Bailey with murder? It seems that he intentionally created a situation whose probable result would be death.

We would have to look at the statutes defining the different levels of homicide in each jurisdiction. If Virginia defines murder as a killing that occurs under circumstances where the defendant recklessly engaged in conduct which created a grave risk of death to another person that evinced a depraved indifference to human life, then Bailey could have been charged with murder. Bailey's legal argument and the one that the court focused on in the decision, was the causation issue. In the unedited version, the court noted that "Bailey concedes that the evidence at trial, viewed in the light most favorable to the Commonwealth, would support a finding that his actions constituted negligence so gross and culpable as to indicate a callous disregard for human life. He contends, however, that he "did not kill Murdock."

6-06-04: Conspiracy & "Wheel without a Rim"

Hi Professor,

I can't find a case example for the "wheel with a rim" conspiracy. My notes say Anderson, but since that case makes very little sense to me in the first place I'd like to try to find another example (since I didn't get why she was connected to the other people referring women for abortions.) DO you know of one?

The Interstate Circuit case is an example of a "wheel with a rim" conspiracy. In that case a single conspiracy was found between the the movie distributors because the success of the venture depended upon the participation of all of the distributors.

06-06-04: MPC Mens Rea for Accomplice Liability

I am reviewing complicity/accomplice liability. In my notes I have two conflicting things- one says that the MPC requires purpose and so knowledge isn't enough. But then I have a tentative draft MPC 2.04 which says that purpose and knowledge are sufficient. I know that the MPC accomplice liabilty is 2.06--so I am wondering if the tentative draft 2.04 is about something else...does this make any sense...I guess I am confused whether the MPC will prosecute someone who has knowledge but not purpose.

Thanks!

The tentative draft of the MPC on accomplice liability (which is now 2.06) had knowledge as the mens rea. But that draft was rejected and the final version of the MPC 2.06 requires that the prosecution establish purpose as the mens rea.

6-06-04: Clarification on Past Exam Questions

2003 exam #2: why not use MPC 223.1 for possible defenses?

I wanted students to discuss and apply the defenses offered by the Model Penal Code (which we had spent time discussing in class) to the language of the statute that was provided in the question. And so my hope was that students would read the language of the statute in the question and discuss defenses that we had covered in class, (mistake of fact, choice of evils) rather than go to the Model Penal Code for the definition of the offense. But, I seem to remember that some students referred to 223.1, and I gave them credit for that discussion as well.

2003 exam #4: what about Davis and Church? Should we discuss? How?

You can see at the bottom of my sample answer that I mention Davis and Church, because many students focused only on that analysis, rather than discussing the accomplice liability issue. And, so I gave credit for that type of analysis as well. Students discussed that the question of whether or not the defendant was guilty of the crime of attempt would depend upon whether the jurisdiction followed the approach of Davis or Church. And an ideal answer would have gone on to discuss as well the question of accomplice liability under the approach taken by Davis.

But, I think it was not a great exam question - because I didn't make clear what I expected the students to do in their answer.

6-08-04: Lots of Questions

Thanks Professor McMurtrie.

I think that my study guide has completely confused me about Mistake of Fact and Mistake of Law. I went back and read the portions from the text book and this is what I understand about Mistake of fact and law. Can you let me know if I am missing anything?

Mistake of Fact:(Common law) If it negates the mens rea required for a portion of the crime, we read about it only in reference to mistake of age and jurisdictional elements. Both of which do not allow a mistake of fact defense (essentially turning them into strict liablity crimes for that conduct element)

True - except that the strict liability attaches to an attendant circumstace element, not the conduct element of the crime. (e.g. age).

There is also the moral wrong and legal wrong doctrines

Yes, although the moral wrong doctrine is not used in today's times.

Mistake of law:(Common law) If mistake based on an official interpretation of the law (judicial decision, agency charged with interpreting the law)
If knowledge of the law is a requirment for the offense to be proven (for example, Cheeks where he had to know of duty to pay taxes before could violate the statute)

Yes.

MPC: Combines mistake of fact and law in one section (2.04) If mistake negates any of the mens rea elements

Yes.

If mistake based on a reasonable understanding of the law

No. Section 2.04(3) discusses what occurs when the individual acts in reasonable reliance upon an official statement of the law later determined to be erroneous. It is a much stricter standard than allowing someone to raise a defense based upone a reasonable understanding of the law.

And finally, if I understand correctly, there is a debate if the mistake of law defense should be broadened since a person can reasonably rely on following the law (i.e. getting a divorce) but still be charged for a crime because a law was broken (being charged for bigamy)

I believe you are talking about a case where the defendant thought he had obtained a valid divorce and it actually was not valid. He got married again tried to raise a mistake defense to the charge of bigamy. The defense was barred. So, there is probably some debate on that issue - but we did not cover it or discuss it in class.

6-08-04: Questions

1. the Model Penal Code provides that a mistake of law is not available as a defense if the D has the mens rea of a lesser crime (but does the actus reus of the greater crime) but only punishes the D by the lesser crime rather then the crime that fit his mens rea. (whereas at common law, under the legal wrong doctrine, he could be punished for the greater offense- that which comported with his actus reus). So it seems to me like in the MPC, mistake of law in this situation is at least a partial defense, is that correct?

Yes.

Also, at common law and under the MPC, are mistake of law and mistake of fact (when they apply) total defenses in that they lead to acquittal if they are proven? If the mistake negate the mens rea requirement for the crime, then it is a total defense that will lead to an acquittal on the crime.

Or if the defendant acts in reasonable reliance on an official interpretation of the law (see MPC 2.04(3)), the mistake is also a complete defense.

2. This question is about your causation chart. Under Dependent (responsive) intervening causes you have- foreseeable, not voluntary, irresponsible, uninformed, under compulsion of duty, and coerced. My question is, do these all have to exist for it to be considered a dependent intervening cause?

No, they can be independent ways of establishing coercion.

And, what do you mean by irresponsible and uninformed?

If an actor makes someone who is mentally incompetent or a child who is under the age of capacity (i.e. irresponsible individuals under the law) do something "voluntarily" the actor the causal chain between the actor and the harm is not broken.

Or if the actor makes someone take an action who is not fully informed of the results of that action, the causal chain between the actor and the harm is not broken. An example would be if the actor tells a third party to flip a switch to turn on the lights in a building knowing that flipping a switch will cause an explosion, rather than turning on lights, the third party's action would not be an informed action.

As far as not voluntary, coerced and under compulsion of duty go- i assume these refer to when the dependent intervening cause is a human action, but it doesn't have to be a human action does it?

It does, the terms refer to human actions that are done under coercion (People v. Kern) or compulsion of duty. (People v. Matos).

Similar question for independent intervening causes- do they have to be informed, and voluntary and deliberate? and, can they be a non-human action?

Independent intervening human actions have to be informed, voluntary and deliberate. There are circumstances where an indepedent intervening cause is a non-human action. (e.g. forces of nature, like hurricanes).

3. This question is about conspiracy as a form of accessorial liability. Basically, my question is what is the difference between this and regular conspiracy? I understand that through the Pinkerton doctrine complicity is found by a mere agreement and then the accomplice can be liable under a complicity theory for the acts of the principal in furtherance of the conspiracy-- but why not just call this conspiracy? What about this makes it accomplice liability?

Conspiracy is a crime in and of itself. The crime of conspiracy is the agreement. Once the crime of conspiracy has been established it can be used as a method of accessorial liability under the Pinkerton doctrine. Liability under the Pinkerton doctrine reaches further than accomplice liability. Accessorial liability under Pinkerton and accomplice liability are theories under which a person can be prosecuted for the actions of another, not crimes.

4. Regarding the statues like colorado's "make my day" statute- those justify using deadly force only when there is a burglary and you are protecting yourself or your family right? Or are they exceptions to the general rule that you can NEVER use DF to defend your property

Under the Colorado statute you can use deadly force to protect your property when the occupant reasonably believes that the intruder "might use any physical force, no matter how slight." So deadly force can be used in circumstances that it would not be allowed to be used under a theory of self-defense, which requires that the response be proportional to the force used against the actor.

5. For intoxication as a defense to negate mens rea, this is only an issue for voluntary intoxication right? Involuntary intoxication that negates mens rea is always a defense right? Yes - there are varying responses to how voluntary intoxication can be used as a defense to negate mens rea. But, most jurisdictions would allow involuntary intoxication to be a defense when it negates mens rea or causes a state of temporary insanity.

6-08-04: Follow up Questions

I just wanted to clarify a couple of things regarding your answers..




#1
<
my question-

3. This question is about conspiracy as a form of accessorial
liability. Basically, my question is what is the difference between
this and regular conspiracy? I understand that through the Pinkerton
doctrine complicity is found by a mere agreement and then the
accomplice can be liable under a complicity theory for the acts of the
principal in furtherance of the conspiracy-- but why not just call this
conspiracy? What about this makes it accomplice liability?


your answer-

Conspiracy is a crime in and of itself. The crime of conspiracy is the agreement. Once the crime of conspiracy has been established it can be used as a method of accessorial liability under the Pinkerton doctrine. Liability under the Pinkerton doctrine reaches further than accomplice liability. Accessorial liability under Pinkerton and accomplice liability are theories under which a person can be prosecuted for the actions of another, not crimes.<br />

my follow up-

Ok so, by saying that D is guilty of conspiracy that does not mean that he is automatically liable for his co-conspirator's acts, we must still use either accomplice liability or the Pinkerton doctrine to make him liable??

Yes.

If he can not be held liable for his accomplices acts, he can still be convicted of conspiracy, but if he can, then he will be guilty of conspiracy AND for whatever the other person did.... Is this all correct?

If he is guilty of the crime of conspiracy, you would need to determine whether your jurisdiction had adopted the Pinkerton doctrine (not all states have - see pp. 692 - 694) to see whether he would be liable under the Pinkerton doctrine.

If not, then liability would be based upon the jurisdiction's accomplice liability doctrine.

#2

my question-
Regarding the statues like colorado's "make my day" statute- those
justify using deadly force only when there is a burglary and you are
protecting yourself or your family right? Or are they exceptions to the
general rule that you can NEVER use DF to defend your property

your answer-
Under the Colorado statute you can use deadly force to protect your property when the occupant reasonably believes that the intruder "might use any physical force, no matter how slight." So deadly force can be used in circumstances that it would not be allowed to be used under a theory of self-defense, which requires that the response be proportional to the force used against the actor.

my followup-
but does he have to believe that the physical force is directed at him? Or does it suffice that the thinks the actor is going to use physical force to take his property (and not him)- like break open his chest of goodies and take the goodies?

The statute says "physical force, no matter how slight, against any occupant." So the force would have to be against an occupant of the house, but again the proportionality requirement is not there.

6-08-04: Accomplice Liability

Pg 609 - variation on Hicks

iii. Can't the "Go get him - atta boy!" translate into actual aid. The
answer in the overhead said no. But inciting can be encouragement, no?

ii (not iii?). The powerpoint states that there is actual aid and the question is whether or not the words spoken (atta boy) satisfy the mens rea requirment -intent to aid - versus just expressing enjoyment of the spectacle.


iii. there is no actual aid.

6-08-04: Accomplice Liability

There was a hypothetical on day 30: A customer (C) asks a pharmacist (P)
for a certain drug. Clerk (A) passes the drug to (P) and (P) sells it to
(C). The drug is contaminated and the applicable drug law is a strict
liability crime. Can A be convicted?

I know we need"
1. Actual aid
2. The intent to Aid
a. intent to aid
b. shared criminal intent with the perp.

Although A aided and intended to aid in the sale - is she guilty if
there is no mens rea for the offense?

I don't have the answer in my notes.

I talked about the fact that there aren't many cases on point - the Giorgianni v. The Queen and Johnson v. Youden cases (p. 622) hold that the accomplice should not be held liable under these circumstances. The MPC "waffles" on this point - so in essense, the issue is unresolved.

6-08-04: Accomplice Liability

A jurisdiction can abide by the "Dual intent" and "natural and
probable
consequences" doctrines, right? They are both majority?

No. A state will follow one or the other - but not both. A state that
follows the "dual intent" rule will not abide by the "natural and
probable consequences" doctrine.

"Dual intent" is with regard to liability for the offense incited or
abetted - that doesn't preclude liability for all other crimes
committed
by the perp that were a reasonably foreseeable result of the
contemplated crime, right? Like People v. Luparello

It does. If a state follows the "dual intent" rule it will preclude
liability, under a theory of accomplice liability for crimes committed
by the principal that are only a reasonably foreseeble result of the
contemplated crime. Reasonable foreseeability does not rise to the
level of intent.

Follow-up Question

So Dual intent is the majority?

As I have said in class and during our session on exam preparation, my hope is that you will analyze the exam problem under the alternative theories we have discussed in class. That is in essence what we have been doing during the course. And in practice, the majority rule is of little consequence. What is important is determining what rule is applied in your jurisdiction and following that rule. So don't worry about stating which is the majority and which is the minority rule. Analyze alternatives! Hope this makes sense!