Offenses

Note: Criminal Law is additive

Causation (ONLY ISSUE FOR RESULT CRIMES)

-​ Not all crimes are result crimes, such as jaywalking, public intoxication, or speeding
which punishes conduct
-​ But for your conduct… this is causation b/c it is seeking to punish a harmful result (e.g.
arson, battery, or kidnapping)
-​ Punishing a prohibited result
-​ There can be laws which prohibit conduct and result which are also result crimes
-​ **Key aspect: was it foreseeable?**
-​ But for causation - if the result would not have occurred, but for the actions of the D, then
the D’s actions are the but-for cause (actual cause)
-​ DOES NOT MATTER THE JDX THE TEST IS THE SAME
-​ Multiple but for causes → then we might need to use an alternative test
-​ MPC 2.03 - conduct is the cause of a result when it is an antecedent but for which the
result in question would not have occurred; and the relationship between the conduct and
the result satisfies any additional causal requirements imposed by the Code or by the law
defining the defense
-​ CL and MPC are the same

Alternatives to But For Test (Cause in Fact)

-​ But for causation is contested in situation of over-determination (too much causation)
where D’s conduct makes no difference to the result, but for test id REPLACED with:
-​ Substantial factor test = rare cases where two D’s acting independently and not
in concert with one another, commit two separate acts, each of which alone is
sufficient to bring about the prohibited result; test = were the D’s actions a
substantial factor in producing the result?
-​ Acceleration theory = Did D’s actions hasten the result? Not working as
accomplices independent actors (i.e. victim pushed from building; second
perpetrator kills victim as falling)
-​ Likelihood of survival theory = did D’s actions make the victim’s survival less
likely? (NB: courts are split on whether to recognize this theory)
-​ Proximate cause = if the result was reasonably foreseeable, then the D’s actions
are a proximate cause (legal cause)

State v. Smith → when does an intervening act break the chain of liability?
-​ Smith hit Bizer and he hit his head
-​ He was diabetic and he failed to take insulin
-​ Bizer then refused a CAT scan
-​ He died later on b/c of his injuries
-​ Intervening causes which act as superseding causes which break the causal chain
-​ Is something too far removed to incur criminal liability?
-​ Policy determination → is it fair to impose criminal liability? You can use these
factors but you do not have to. Common Law Six Factors:
1.​ Coincidental v. Responsive intervening causes
a.​ Is the harmful result due to a set of things which were set in motion
(responsive)? Or is it a coincidence such as a lightning strike?
b.​ Coincidence = involves merely putting the victim in the wrong
place at the wrong time. If this intervening act/actor breaks the
causal chain, the first actor is not responsible.
i.​ E.g. assailant assaults a victim and leaves him on the
sidewalk; second (unconnected) assailant kills victim
ii.​ Arguments can be made either way and this is not a science
→ multiple ways of answering a question and this is just
guidance
c.​ Responsive = when the intervening act/actor is responding to the
conditions created. The first actor is still responsible and causal
chain is not broken
i.​ E.g. actions by V to avoid harm, actions of a bystander to
rescue someone, and negligent actions by medical
personnel in treating V
2.​ Voluntary Human Intervention
a.​ When one makes a voluntary choice that intervenes in causal
chain, causation may be broken (May make more sense when
choosing the victim)
b.​ Has to be truly voluntary/free-willed action
3.​ Apparent Safety Doctrine
a.​ When victim reaches a point of apparent safety, the chain causation
is broken
i.​ Had the victims reached apparent safety in Smith?
4.​ De Minnis contribution to socio (get from slides)
a.​ If but for action is only a small piece of causal chain or events that
occurred that led to injury (e.g. friend mortally wounded and on
way to hospital you cause a trivial injury)
5.​ Omission Factor
a.​ As a general matter, an omission (failure of a third party to act
where there is a legal duty) will NOT break causal chain.
 i.​ Nothing does NOT supercede something, BUT it can create
an additional causal chain for the actor who failed to act
6.​ Intended Consequences Doctrine
a.​ If D hoped for and intended that the harm occur, the superseding
act will not relieve D of liability

Proximate Causation (CL): Intervening Causes

Factors that tend to break the causal chain Factors that tend to preserve the causal
*Coincidental → Unforeseeable* chain
*Responsive → Foreseeable*

Not de minimis (substantial) De minis (minimal)

Not an omission (an act) Omission
Free, deliberate, informed human action Not free, deliberate, informed human action
Not intended result Intended result
Apparent safety reached (og force “petered Apparent safety not reached (og force not
out”) “petered out”)

Note: Just because something does not break the chain does not mean it cannot start a new
chain of causation

Causation (MPC)
-​ But for or actual cause (same test as CL) → 2.03(1)(a)
-​ “Conduct is the cause of a result when: it is an antecedent but for which is the
result in question would not have occurred”
-​ Proximate causation (more streamlined approach than the CL → 2.03(2)(b)&(3)(b)
-​ The MPC simply asks: is liability fair under the circumstances?
-​ 2.03(3) states that causation is not established if the result is so remote that it
makes punishing the D illegitimate

MPC Proximate Causation: approach turns Mens Rea

-​ Was the actual result within the purpose or knowledge of the actor?
-​ Yes: the actor’s conduct is a proximate cause
-​ NO: for purpose and knowledge offenses: ask if the actual result involved the
same kind of injury or harm as that designed?
-​ If yes, then proximate cause
-​ If no, then the actor’s conduct was not the proximate cause
-​ NO: for reckless and negligent offenses: ask if the actual result involved the same
kind of injury or harm as the probable result?
-​ If no, then the actors conduct is not the proximate cause
 -​ If yes, was the actual result too remote or accidental in its occurrence to
have a just bearing on the actor’s liability?
-​ If it WAS too remote, actor’s conduct is ot the proximate cause
-​ If it was NOT too remote, the actor’s conduct is the proximate
cause

Taylor v. State
Malice murder → can it be proven by implied intent?
-​ Sounds like conscious objective to cause harm → so it is purpose
CL uses the word Malice and what kind of malice?
-​ Express malice
-​ Express malice is a term which talks about your conscious objective. It is express.
Their conscious objective was to cause harm.
-​ Express = conscious objective
-​ Malice = purposeful
-​ Express malice = purpose
-​ Malice aforethought
-​ Malice = specific intent, killing on purpose with ill will, hate or spite
-​ Aforethought = acts planned in advance
-​ Express malice aforethought (early common law → Taylor v State)
-​ Implied malice aforethought (as law developed)
1.​ Intentional killings that weren’t premeditated
2.​ Unintended killings that occurred during a felony
3.​ Extreme reckless killings (depraved heart murder)
4.​ Intent to create curious bodily injury murder
-​ Some purposeful actions are more bad and some are less bad
 -​ Criminal law has problems with planning murders
-​ Killings that happen spur of the moment is not as bad as one which was planned
ahead of time
-​ So this becomes a degree model → so where you are on the mental state chart
-​ Purpose + planning is more bad than purpose - planning

State v. Guthrie
-​ First degree murder = Deliberation and premeditation
-​ Purpose + planning
-​ Purposeful killing is the only thing that is consistent across the states →
whatever goes in this bucket varies state by state
-​ Big bucket & lots of things can go in
-​ Distinguished by the mental state
-​ Second degree murder = intent to kill
-​ Purpose - planning
-​ Big bucket & lots of things can go in
-​ Distinguished by the mental state
-​ Third degree murder
-​ Big bucket & lots of things can go in
-​ Distinguished by the mental state
Each degree can have a different theory of mental states
-​ Everything is of free will and everything is a deliberate action

Maryland 2-201. Murder in the First Degree

(a)​ In general. A murder is in the first degree if it is:
(1)​A deliberate, premeditated, and willful killing;
(2)​Committed by lying in wait;
(3)​Committed by poison; or
(4)​[Felony Murder] (reckless murder)
Second Degree
-​ Second degree murder does not require premeditation or deliberation. In order to convict
the D of second-degree murder, the State must prove:
1.​ That the conduct of the D caused the death of victim; and
2.​ That the D engaged in the deadly conduct either with the intent to kill or with the
intent to inflict such serious bodily harm that death would be the likely result

No state exactly follows the model penal code. It is mostly an outline which is not distinctively
followed.
First Degree
-​ Premeditated
-​ Specified means
-​ Felony murder (reckless murder)

Maryland 2-201. Murder in the First Degree

(a)​ In general. A murder is in the first degree if it is:
A deliberate, premeditated, and willful killing;
Committed by lying in wait;
Committed by poison; or
[Felony Murder] (reckless murder)
(b)​Penalty

First degree Murder → Majority rule

-​ Premeditation and deliberation = courts focus on the pre in premeditation and look for
evidence that the D deliberated and then formed the intention to kill prior to the act of
killing (state v. guthrie)
-​ How long before the killing does the D need to have formed the intention in order to
qualify as premeditated?

First Degree Murder → Minority Rules

-​ Instantaneous premeditation = some jdxs think deliberation and premeditation can
occur instantaneously in the moment before the act (commonwealth v. carrol)
-​ Prior calculation and design = some jdxs use this instead abandoning the deliberation
and premeditation formula; accords more with the commonsense notion of a killing
performed according to a plan or scheme (state v. walker)
**Overall → First degree = murder done with planning (all states have decided this is the
worst kind and should have the most severe penalty)

Criminal homicide can be murder or manslaughter

-​ Murder is a higher offense than manslaughter
-​ Manslaughter = voluntary or involuntary (partial defense)
-​ Voluntary = purposeful murder but so not bad that it is not even considered
murder
-​ Common law = voluntary manslaughter (normally second degree)
1.​ An intentional killing
2.​ Purpose w/o planning NO premeditation or deliberation
3.​ In the heat of passion
-​ Must have adequate (reasonable) provocation
-​ Done instantaneously and no prior planning
-​ Must have a sudden heat of passion - no reasonable opportunity
to cool off
-​ Must have a causal connection between the provocation, the
passion, and the fatal act
4.​ Due to adequate provocation (fact that makes it not second degree)
-​ Words alone are not adequate provocation
-​ Words can only constitute adequate provocation if indicate a
present intention and ability to cause the D bodily harm
-​ If you don’t have these elements, it would revert back to second degree

Common Law Heat of Passion

Reasonable provocation = provocation is reasonable (or adequate) if (based on D’s reasonable

belief) it is:
1.​ Extreme assault/battery
2.​ Mutual combat
3.​ *Sudden discovery or spouse’s adultery (some legislatures have moved away from this)
4.​ *Illegal arrest (some state have not included this)
5.​ Serious injury to close relative (friend)
Reasonable loss of second-control = If the provocation is reasonable, then D’s loss of
self-control is reasonable, unless D has a reasonable opportunity to “cool down”
State v. White - MPC Suggestion
-​ Reasonable explanation/excuse Voluntary Manslaughter Charge
-​ Extreme emotional distress defense requires a loss of self-control resulting from a highly
provocative and contemporaneous triggering event (Utah) → basically just heat of
passion and the legislature wants to move away from that

Reasonable explanation or excuse

-​ No provocation is required
-​ “Reasonable explanation or excuse” for “extreme emotional disturbance”
-​ The reasonableness of such explanation or excuse shall be determined for the viewpoint
of a person in the actor’s situation under the circumstances as he believes them to be
Reasonable loss of self-control
-​ In the ended, the question is whether the actor’s loss of self-control can be understood in
terms that arose sympathy in the ordinary citizen

Review hypo manslaughter

-​ CL doesn't go to the jury b/c does not meet the reasonable provocation element
-​ MC probably will go to the jury b/c he could be a sympathetic actor

Why is felony murder under both first and second degree?

Felony murder CL (we are the only country left using this rule)
-​ Any death that occurs in the course of the D’s commission or attempted commission of a
felony is murder
-​ No mens rea required
-​ Felony murder + death = murder
-​ Rule: Triggering Felony+a killing = felony murder
-​ Potential for death penalty
Felony murder: applies to any and all killing that occurs during
1.​ The commission of a felony
2.​ An attempted felony
3.​ A flight from a felony

Killing in the perpetration of in furtherance of a felony hypo

Assume, first, that during the commission of the triggering felony, A accidentally shoots and kills
C. Of what would each party be guilty?
 Two alleged offenders Potential Targets

A (shooter) → shoots C (victim of felony)

B D (police officer)

In furtherance of or in perpetration of a felony: proximate cause v. agency approach

-​ All jdxs require this limitation to determine if killing done in furtherance of felony to see
if it makes sense to apply the felony murder rule or not
-​ All killings must be performed “in furtherance of” or “in the perpetration of” the
felony
-​ Many felony murder statutes include D’s “immediate flight” form the commission
of the felony; escape/evasion of law enforcement is part of the felony commission
-​ Hypo 2: are the Ds guilty of felony murder?
-​ Minority rule = proximate cause approach. Yes, b/c what matters is that
victim’s death was set in motion by Ds behavior
-​ Responsive
-​ Majority rule = agency approach. No, b/c agency relationship between police
and Ds so shouldn’t be held liable
-​ You can only be on the hook for what your accomplice does. The cops
killing your accomplice cannot be something you’re guilty of

*When do you apply the felony murder limitation? when it is not in the statute*
Don’t forget mens rea

Degrees of recklessness
-​ Extreme form of recklessness v. regular recklessness
-​ Extreme form gets treated as murder like felony murder was but not on felony
murder theory, just categorizing other extreme
-​ There are also degrees of negligence → gross negligence v. not so bad and kind of
ordinary
Distinction is material for most states
-​ Gross negligence falls on criminal side and ordinary falls on non-criminal more so

2nd degree murder → 4 theories

1.​ Felony murder
2.​ Purpose w/o planning
3.​ Knowledge to inflict grave bodily harm
4.​ Extreme reckless/depraved heart
2nd Degree Murder
-​ Mens rea for 2nd degree murder
-​ Intent to cause grievous bodily harm
-​ Extreme recklessness
-​ Catchall: murder not in the first degree (including felony murder!)
-​ Implied malice under common law

Common law implied malice: People v. Knoller

-​ Malice aforethought is implied in an non-intentional killing
-​ Prosecutor has to prove: Depraved heart theory shows a conscious disregard for human
life (different from grievous bodily harm)
-​ Extremely reckless mens rea needed → Appreciation & discounting of the risk of
death to another

MD Pattern Jury Instruction

2nd Degree Murder:
-​ Does not require premeditation or deliberation
-​ To convict D state must prove: D engaged in deadly conduct either with the intent to kill
or with the intent to inflict such serious bodily harm that death would be the liekly result
Depraved Heart Murder:
2nd degree depraved heart murder is the killing of another person while acting with an extreme
disregard for human life…the State must prove:
1.​ D caused the death or (name)
2.​ D’s conduct created a very high degree of risk to the life of (name); and
3.​ D, conscious of such risk, acted with extreme disregard for the life-endangering
consequences

Same Standard Different Labels!! → common law implied malice and MPC suggestion Extreme
Indifference to Human Life
-​ Implied malice murder – the Common law label for extremely reckless killing is implied
malice murder; the Common Law ALSO uses another synonym to label an extremely
reckless murder – depreaved or abandoned and malignant heart murder
-​ D must be aware of the natyre of the risk and consciously disregard it
-​ Must have extreme disregard of the life-endangering consequences
-​ Depravity must be severe and show evidence of an “abandoned and malignant
heart”
-​ “Implied malice murder” label is in decline and has been abandoned by many
courts
 -​ MPc suggestion - extreme indifference to human life
-​ GET FROM SLIDES

MPC Extreme Indifference to Human Life: People v. Snyder

Murder → killing can be unintentional → demonstrate a depraved indifference to human life
-​ All theories of 2nd degree murder does not need the intent to kill someone

Involuntary → reckless/negligent: People v. Kolzow

-​ Plenty of evidence to show discounting of the risk but she wants negligence
-​ Why isn’t this extreme such that it qualifies for 2nd degree murder? This wasn’t
considered extremely reckless because it wasn’t the theory the prosecutor chose (maybe
because she was a sympathetic client)
-​ Question: how far of a deviation from the standard of care are we? (what would
the reasonably prudent parent do?)
-​ Extremely reckless = 2nd degree murder
-​ Reg recklessness = involuntary manslaughter
-​ Reckless theory (majority approach) = fact based and case by case inquiry: degree of
deviation from standard of care to determine distinction b/w regular reckless (involuntary
manslaughter) and extreme reckless (2nd degree murder) - state must demonstrate that a
reasonable person would not have taken the risk
-​ Recklessness requires that the perpetrator “consciously disregards a
substantial and unjustified risk” → MPC: disregarding the risk “involved a
gross deviation form the standard of conduct that a law-abiding person would
observe in the actor’s situation
-​ Regular recklessness as a mental state in most jdxs (23 states) → people v.
Kolzow
-​ Seven states define negligence synonymous;y to recklessness or reference
conscious disregarding for a total of 30 states that effectively use recklessness as
mental state for involuntary manslaughter conviction
-​ E.g. MD v. Morrison - MD court says negligence is criminally culpable if
it rises to the level of wanton and reckless conduct

Involuntary manslaughter: Misdemeanor Manslaughter Theory or Unlawful Act Theory

-​ Misdemeanor manslaughter
-​ Permits conviction for involuntary manslaughter if D commits an underlying
misdemeanor that results in death; only 4 states have this as sole basis for
involuntary
 -​ Prosecutor need not show D acted with recklessness; lessens their burden’
recklessness is presumed by statute (based on D’s commission of the underlying
misdemeanor); mens rea for misdemeanor and resulting death
-​ Prosecution must still demonstrate sufficient causal link (proximate cause)
between misdemeanor and resulting death
-​ Unlawful act theory
-​ New mexico statute = involuntary manslaughter defined as manslaughter
committed in the commission of an unlawful act not amounting to felony, or in the
commission of a lawful act which might produce death in an unlawful manner or
without due caution and circumspection

Involuntary Manslaughter: Gross or Criminal Negligence (Minority Approach)

-​ Minority approach exclusive;y allows gross or criminal negligence to sustain an
involuntary manslaughter conviction - only 12 states follow this approach
-​ Some state allow involuntary manslaughter conviction to be sustained if can show either
recklessness or gross/criminal negligence
-​ Heightened standard: D is unaware of the nature of the risk but held objectively liable;
D’s behavior is inadvertent but must also represent a gross deviation from the standard of
care that a reasonably prudent person would observe under the circumstances (MD and
Common Law adopt this rule)
-​ Gross negligence sometimes referred to as “criminal negligence” to emphasize
that a heightened level as to warrant criminal punishment and not just tort remedy
-​ In Md v. Morrison → the negligence must be criminal culpable (i.e. gross
departure so significant could be deemed reckless)
-​ Key point: elevated standard of gross negligence is satisfied if there is a heightened
degree of departure from standard of care: case-by-case analysis

Ordinary/Civil Negligence (PRIMARILY SEEN IN TORT LAW)

-​ Use in criminal cases is VERY RARE and often criticized by scholars/judges
-​ Fact-finder (usually a jury) must assess whether an individual sufficiently deviated from
the standard of care that a reasonably prudent person would observe under the
circumstances
-​ In most jdxs the deviation must represent a substantial and unjustified risk; some jdxs
also require the D’s actions to be “naturally and inherently dangerous to life”
-​ Ordinary negligence sometimes referred to as “civil negligence” b/c it tracks the level of
negligence required in a tort action
-​ Criminal = gross and ordinary = not gross (not as far removed from the standard
of care which is supposed to be observed)
State v. Williams → Criminal v. Ordinary Negligence (minority approach)
-​ Majority of cases = simple negligence is inadequate as a matter of law to support a
conviction for involuntary manslaughter

Involuntary Manslaughter = who is the reasonable person?

-​ Should cultural issues/context matter when considering a “reasonable person” would have
done for the purpose of recklessness or negligence for involuntary manslaughter
-​ Unlike voluntary manslaughter, under the CL approach there is NO RULE about
subjectivization of the reasonable person for involuntary manslaughter
-​ The issue is left to the jury
-​ Whether the Ds acted negligently turns on the reasonableness of their actions. The
question of reasonableness depends in turn on the fact finder’s construction of the
reasonable person
-​ Who is the “reasonable person” against whom these Native American parents should be
compared? Should the fact finder consider race, ethnicity, class, age, gender, or level of
education?

Under certain circumstances the law has said that if you meet certain elements, you can qualify
for voluntary manslaughter
-​ CL approach: heat of passion, no time for cooling off, causal connection, etc.
-​ If all these elements are satisfied, you get mitigated down (the judge will give the
jury this)
-​ Instead of a second degree murder charge, you are facing a voluntary
manslaughter charge

Theft = refers to a situation where the perpetrator of the crime stole someone else's property
while intending to deprive the other person of that property permanently.
-​ In order to engage in theft, one must steal something. But what does that something
have to be? It has to be personal property. In this day and age, property can sometimes
mean more than tangible physical objects and might also include less physical entities.

Common law larceny elements:

-​ Possession of
-​ Personal property
-​ Owned and possessed by another
-​ By means of trespassory taking with
-​ Intent to permanently deprive the person of the property +
-​ Carrying away of the property (any minimal carrying away/asportation suffices to satisfy
the actus reus)
Model Penal Code: Under the Code, there is one criminal offense of “theft.”[14] The charge of
theft can be supported in various ways, but they all boil down to wrongful acquisition or keeping
of personal property with wrongful intent
-​ Does not bother with carrying away here

Trespass = use of something without the owner’s authorization. If you use something and you
have authorization, there is no trespass, even if you did not know that you got
consent/authorization.

Claim of right = if you believe you own something (objectively reasonable), you, under the
common law, cannot be convicted of larceny b/c you thought it was owned and possessed by
yourself

Car problem → **Ownership does not change, but at the time of the crime, possessory
interests can shift**
-​ So if your car is at the mechanic, they have a lien (the amount you have to pay) and he
has a greater possessory interest than you even though you own it, so you have to satisfy
the lien first
-​ If you satisfy the lien, they have to turn over the car. If you do not, they do not have to
turn over the car

2 things → ownership and possessory interest

Watch problem → Concurrence = intent has to be created when the act happens
-​ Mens rea happens later. Can this be reconciled? Doctrine: continuing trespass
-​ If you complete the actus reus and continue doing the wrong thing until the proper
mens rea was created, it is still a trespass aka it is still larceny. Stops the concurrence
problem
-​ You have to do some kind of due diligence to find who the owner is. And if you do, then
that's okay. You don’t have to scour the ends of the earth though, just some kind of due
diligence.

Theft = non-violent stealing or property

-​ DOES NOT require presence of the property owner NOR direct invasion of the property
from the victim
Robbery = using force or fear to steal property from the victim’s immediate possession
-​ Robbery refers to taking or attempting to take anything of value by force. Threat of force
or violence to a person or by putting the victim in fear.
Common Law Robbery v. MPC
-​ Common Law Elements: Larceny from a person by
-​ Force (greater than the force required to achieve the taking), or
-​ Intimidation (threat of use of force)
-​ MPC: a person is guilty of robbery if, in the court of committing a theft, he:
-​ Inflicts serious bodily injury upon another
-​ Threatens another with or purposely put him in fear of immediate serious bodily
injury; or
-​ Commits or threatens immediately to commit any felony of the first or second
degree

Burglary (modern variation of the common law) = the act of an unlawful entry into a structure –
such as a business or home – with the intent to commit a crime inside
-​ Breaking and entering, mens rea which goes along with it, and the intent to commit the
felony therein.
-​ Common law elements:
-​ A breaking
-​ An entering
-​ Of a dwelling or house
-​ Of another
-​ At night
-​ With the intent to commit a felony therein

Burglary in the first degree = trespass + theft

Robbery = theft + assault

Burglary v. Robbery
-​ Involves unlawful entry into a building or property v. involves the use of force or
intimidation to steal from a person or property
-​ Typically occurs when the premises are unoccupied v. involved confrontation with a
person

Arson = the malicious burning of person or real property with fraudulent or criminal intent

Robinson v. CA → criminalizing addiction?

-​ Issue: whether a state law criminalizing the status of narcotic addiction rather than
specific acts of drug use or possession, violates the 8th amendment
-​ Rule: 8th amendment prohibits cruel and unusual punishment. Punishment for a status
(e.g. addiction) rather than voluntary conduct violates this principle
 -​ Concurrence: Douglas emphasized addiction as a disease requiring medical treatment, not
punishment. Harlan noted the statute criminalized a ‘compelling propensity’ to use drugs
without proof of recent acts
-​ Dissent: Clark argued the statute aimed to treat early-stage addiction through
confinement. White contended the law targeted habitual drug use, not mere status
-​ This decision brought other statutes throughout the nation into question dealing
with prostitution, vagrancy, drunkenness, and disorderly conduct

Kier v. State - what the gov must prove for a conviction of marijuana
-​ You have to have knowledge of the contraband & the power and intention to exercise
control over the drug
-​ Inferences to show possession are → what are the circumstances which can show
knowledge:
-​ Attempting to flee*
-​ Behaving erratically
-​ Something that show usage
-​ Residue
-​ Uncooperation with officers
-​ Mental state is doing a lot of the heavy lifting here
-​ You have to have knowledge of it to be in possession of it

Possession: Actus Reus and Mens Rea

-​ Can only criminalize possession if you can show knowledge
-​ MPC 2.01(4) → “Possession is an act, within the meaning of this Section, if the possessor
knowingly procured or received the thing possessed or was aware of his control thereof
for a sufficient period to have been able to terminate his possession”
-​ Possession is an act requiring 1. Proof of voluntary act of knowingly
acquiring possession or 2. By creating a duty to act to dispossess oneself of
the property once one is aware of its presence
-​ Mens rea = knowledge is an essential element of a possession charges - guilty knowledge
is an element of the offense of possession and must be proven beyond a reasonable doubt
(Garcia v. State)
-​ And includes both 1. Knowledge of possession and 2. Knowledge of the nature of
the illegal substance

He thought he was buying marijuana but got oregano instead

-​ This is a case of factual impossibility, and a factual impossibility is NEVER a defense to
attempt
-​ What the person was trying to do is illegal
 -​ Ask yourself if what the D was trying to do is against the law?
-​ If it is, then the D is guilty of an attempt so long as there is specific intent and a
substantial step is taken - even if the D never could have committed the crime
The state cannot charge me with both the attempt and the completed crime. Once it
becomes a completed crime, they merge and the attempt falls away.

Attempt
1.​ Take a substantial step towards commission
2.​ But crime is not accomplished

McQuarter v. State
-​ Risk in attempt law to have assumptions become law and are subject to arrest
-​ Being suspicious has become a crime and is a lot about profiling

Common Law → attempt Mens Rea

-​ Strict test for this
-​ Attempt is a “specific intent” offense
-​ D must INTEND (purpose) to engage in the conduct and INTEND (purpose) to
bring about the result (second intent is usually the key mens rea issue)
-​ One – intent conscious objective to engage in the conduct constituting the
attempt, i.e. the conduct by which the actor crosses the line from
“preparation” into “attempt”
-​ Two – intent conscious objective to commit the crime that is the object of
the attempt

Attempted reckless murder does not exist

Can you attempt a reckless crime?

-​ Courts split on this issue
-​ Majority view is NO: most courts conclude that crimnes of recklessness involve Ds who
don’t intend resulting harm and so CANNOT attempt a reckless crime (Peopel v. Gentry)
→ CL APPROACH
-​ Most jdxs follow the CL approach
-​ Minority view is yes: People v. Thomas (MPC approach)
-​ If it is a conduct crime, look at subsection (1)(a)
-​ If a result crime, look at subsection (1)(b)
-​ Attempt requires (check ppt)

Attempt: CL v. MPC (Actus reus Approaches)

 -​ Objectivism (CL) = risks collapsing into fast act
-​ The actus reus has significance independent of mens rea
-​ The act itself must be dangerous – must manifest criminality – independent of the
actor’s intent
-​ Focuses on what remains to be done to complete the crime (in a negative sense)
-​ Subjectivism (MPC) - risk collapsing into intent alone
-​ The actus reus lacks independent significance; it corroborates the mens rea
-​ It suffices that the actor is dangerous; the act itself need not be
-​ Focuses on how much D has done (in a positive sense) towards completing the
crime
Tests:

MPC Approach​ ​ ​ ​ ​ ​ ​ ​ ​ CL Approach

MPC draws the line earlier than the CL

Physical proximity doctrine: the overt act (check slides)

-​ The D must be close in time and space to the final act that completes the crime – focus is
more on geography and physical closeness

People v. Rizzo

Common Law Attempt Actus Reus Test

-​ Dangerous Proximity Doctrine: More conceptual – asks whether the D was so
dangerously close to consummating the offense in terms of causality less of an emphasis
on geography
-​ The greater the gravity and probability of the offense and the nearer the act to the
crime, the stronger (check ppt)

State v. Reeves
MPC Substantial step actus reus test: Engage in a substantial step in a course of conduct planned
to complete crime
-​ MPC says entitled to but not required to convict as list is not exhaustive:
-​ Lying in wait
-​ Enticing
-​ Reconnoitering
-​ Unlawful entry
-​ Possession of materials specially designed for unlawful use
-​ Possession of collection or fabrication of lawful materials near the place of
commission, and

Inchoate Crimes = do not result in the harm itself of the target crime but are prosecuted as
separate offenses. Idea underpinning theme crimes is crime prevention.
-​ Solicitation = asking another to commit a crime
-​ Conspiracy = 2 people agree to commit a crime
-​ Attempt = take a substantial step toward commission but the crime is not accomplished
-​ MPC has a less restrictive approach and want to hold more people liable for
attempt offenses

MPC Substantial Step: Attempt Actus Reus Test

-​ Engage in a “substantial step in a course of conduct” planned to complete crime
-​ MPC says entitled to but not required to convict as list is not exhaustive:
-​ Lying in wait
-​ Enticing
-​ Reconnoitering
-​ Unlawful entry
-​ Possession of materials specially designed for unlawful use
-​ Possession or collection or fabrication of lawful materials near the place of
commission, and
-​ Soliciting

Defenses
1.​ Impossibility
-​ People v. Dlugash = thought he killed someone but hadn't and said he didn't know
he had killed someone but fled
-​ Legal impossibility is about what the law prohibits:
-​ Does the law prohibit murder and does the law prohibit attempted murder?
-​ Legal impossibility is about what the law is prohibiting –that governs
-​ Does what the person did arrive us at a factual impossibility?
 -​ Attempted murder is not about whether the murder was accomplished. It is
about whether or not you took substantial steps and had the mental state.
-​ If factual circumstances do not allow you to complete the crime, that is a
factual impossibility. But you had the mental state and took substantial
steps to complete it. The ends constitute a crime. This is attempted murder
(Dlugash).
-​ Although you cannot materially complete the crime, attempt charges are based on
the fact that the crime never happened and so you can be tried for attempt
-​ Factual impossibility is never a defense for attempt. It can be for the target
crime, for it is a separate charge.
-​ Murder cannot happen if the person is alive but attempted murder can still
be properly completed and then it's a good charge.
-​ Pure legal impossibility is ALWAYS a defense
-​ If the law does not prohibit the thing, then they cannot be properly charged
with something
-​ Few and far between for these cases
-​ Exists where law does not prohibit the D’s conduct or the result that they
sought to achieve; applies where the actor engages in conduct that they
believe is criminal, but is not
-​ Hybrid legal impossibility (rarely a defense)
-​ A mistake regarding the legal status of a fact that is necessary to establish
a required element of the offense
-​ Modern trend in most jdxs is to not allow defense in hybrid legal
impossibility cases

Common law and majority MPC Suggestion

rule

Pure legal impossibility Defense Potential mitigation

Hybrid legal impossibility Rarely a defense Potential mitigation

Factual impossibility No defense No defense

2.​ Abandonment
-​ Defense applies to attempt, if perpetrator “voluntarily and completely” renounced
their criminal purpose
-​ Common law DOES NOT recognize abandonment defense
-​ MPC 5.01(4) suggests states recognize DEFENSE, but this is minority
approach
 -​ Abandonment must be truly voluntary
-​ Not a result of victim’s resistance
-​ Not from fear of police apprehension

Attempt Summary:
-​ Mens rea = the specific intent to commit the crime
-​ Actus reus =
-​ MPC/majority approach = a substantial step that is strongly corroborative of the
criminal purpose
-​ Common law = dangerous proximity test
-​ Merges with completed crime? Yes (one cannot be guilty of attempt and the completed
crime)
-​ Defenses:
-​ Legal impossibility is a defense
-​ Factual impossibility is not a defense
-​ Abandonment is not a defense at common law but is in some jdxs