Criminal Law

i. Other felony murder issues:

1) Causation limits 2) Independent felony requirement § Some states § Felony must not be the method of the homicide § Aka Merger Rule 3) Neither limit the trad felony murder rule 4) Other states have said we need a felony that's separate from the act of killing. Ex: D charged with felony murder bc wife put one of D's kids in a trash bag as punishment, kid died, he prosecuted for felony murder bc he gave her the bag. Some states would not allow for that, would say we need a separate act - aka, need a bank robbery during which someone dies. Two seaparte acts, can't turn holding someone hostage with a gun can't turn that into felony murder. This is sometimes called the Merger rule - if the acts merge, can't apply this rule § Visiting a witness example: we have one actor who knows he has the gun. The second guy doesn't even know there's a gun, so why is it weird to prosecute him for murder weird: no knowing or purposeful action. Is he even reckless: not really. Ray doesn't know anybody has a gun. And yet Ray is going to get prosecuted for felony murder; only escapes under MPC or we have that state provision that doesn't apply to accomplices.

Different applications of felony murder rule:

1) To D who commits the homicide - that application is not uniquely controversial 2) To D who merely takes part in the underlying felony - this marks a great leap in liability = "Accomplice" liability + felony murder rule § No controversy of application to MPC to the D who causes the death directly. Where is there a controversy - to accomplices, to the get-away driver. That's a controversial application of felony murder rule. § Controversy rn - lotta black people who were accomplices, now serving time for murder. 3) Some states applications - limits this rule if the D was unarmed, didn't assist in the killing, or there's no evidence of foreseeability § Some state have limited this, say that we're not going to put accomplices in jail for murder.

Felony murder Rule: i. Homicide during other felony becomes murder ii. Puts people in prison for murder even though didn't act with the intent, knowledge to kill someone Three approaches to felony murder rule:

1) Traditional felony murder rule § Unintentional death caused by commission of (or attempt to commit) a felony constitutes a murder § Trad felony murder rule: if there's a death that happens during a felony, we prosecute the D for murder. You commit arson, kill someone, you go to prison for murder. If during bank robbery you push the guard and guard dies, you go to prison for murder bc someone died during a felony. Super prosecution friendly rule. Say your job is to drive the getaway car and that's all, but one of the cashiers during the robbery has a heart attack and dies - you'd still be convicted of felony murder bc you participated in the felony. § Problems with this approach: v Proliferation of non-violent felonies v No requirement that D played significant role in the killing - aka, there is liability for accomplices to the felony v The problem under this rule: what if you commit a nonviolent felony, make a bad check, cashier that cashes it gets a paper cut and dies: you can still get prosecuted for murder. That starts seeming pretty extreme. There are a ton of non-violent felony v Another problem: we can have Ds that played only a minor role in the felony, but they all get caught up under this rule. 2) Limited felony murder rule § Many states limit the traditional felony murder rule (ex, KA) § Limited to enumerated/listed inherently dangerous felonies § Limited felony murder rule - a lot of states have reworked the trad common law felony murder rule. In these states, have passed a list of felonies to which this rule applies. In Sabine case, get exs like abuse of a child, burglary, kidnapping, treason. v Under this approach, we limit the rule by listing felonies that the state thinks of as really dangerous, only if there is a death in one of them does the rule come into play. 3) MPC felony murder rule § Limited to specific serious felonies (robbery, rape, arson, burglary, kidnapping, felonious escape) § Creates a presumption of extreme indifference § Is rebuttable by the defense § MPC version of felony murder rule (third version of felony murder rule): we get a list of enumerated felonies. But MPC says that if a death occurs during one of these felonies, we get a presumption of extreme indifference (which means we can prosecute for murder). § Why is a presumption not an absolute win for prosecution: cuz that presumption can be refuted by evidence. v Ex: if have a parent that loses custody, goes and kidnaps kid, has car crash and kid dies. Have a death during a kidnapping. Why's that parent going to have a good argument to rebut the presumption of extreme indifference: they wouldn't be indifferent to their kids life, they kidnapped them bc they loved them so much, wanted to be with them. That's a really good defense argument. MPC's version of felony murder rule isn't an absolute win for prosecution - will win sometimes, but D will also win sometimes.

A. The doctrines that WILL mitigate liability, even under MPC: 1. "Imaginary offense" 2. Non-dangerous

1. "Imaginary offense" a. No liability if conduct not a crime, even if actor has the mental state to commit crime b. "Pure/True Legal Impossibility" c. Imaginary offense: smuggling sugar. It's not a crime, not illegal. The fact they think it illegal doesn't make it a crime. We cannot prosecute someone just for having a guilty mental state. i. Lots of us have had a momentary flash of a bad thought. You can't be prosecuted for just having a thought. You're prosecuted for having a thought AND evil conduct. Ex, So and Watson have an evil thought, but they're not doing any illegal conduct from wanting to smuggle sugar. d. Imaginary offense says that we still can't prosecute somebody for something that isn't a crime, even if they have the required mental state. If they intend to do something that's not a crime, can't prosecute them. Can't prosecute for just a bad thought. Have to have conduct that is an attempt or the actual crime. D has mental state, think they're committing a crime, but we can't convict bc there is no crime. e. Exs: i. Practicing witchcraft under belief that Judge Hathorne will sentence you to the gallows ii. Foreign tourist who photographs a government building under belief it's a crime iii. Yelling "the governor sucks" in the town square 2. Non-dangerous a. "Inherently non-dangerous" i. MPC5.05(2) ii. Conduct inherently unlikely to result in crime iii. And neither conduct nor actor present a public danger iv. Inherently non-dangerous offense: this is MPC 5.05(2). Says that if one commits conduct that is unlikely to cause the result and if the person is not dangerous, they get special treatment, mitigation, a lower sentence. v. Two parts to this doctrine: conduct inherently unlikely to result in crime; neither conduct nor actor present a public danger. § So which part of this would JHI have: conduct inherently unlikely to result in a crime. Why can't he est the other one: he's still actively trying to murder someone. Mitigation, notably, doesn't mean there's no conviction, though. But do have to prove the two parts of this doctrine.

Causation hypo: Commonwealth v. Root

1. About two guys who were drag racing. The victim, one of the two drag racers, was an intervening cause, ct says that the other driver is not liabile for homicide. Two guys are racing, going down the road, get to a section of road that's a no-passing zone, guy tries to pass and hits a truck. Ct says that the other driver is not guilty bc of causation. Let's try to think about why this is a great case for Root, the defendant, even better than Manny's case: he didn't force the other driver to pass him. There's also no transferred intent. but why is victim's conduct in Root arguably worse than the guy in Manny: he was aware of a very strong risk. The diff: the guy in Root is grossly reckless - more than just reckless, but not quite knowing. Baylor is reckless - but it's not a crime to stick your head out in front of a moving train. It IS crime to pass in a no passing zone. Baylor is reckless with his own life, the driver in Root is reckless with both his own life and the life of the truck driver.

"Accessory after the fact"

1. Aiding a known felon avoid apprehension/prosecution Don't need this for outline. You cannot help somebody commit a crime that has already happened. You can't go back in time and help somebody do a crime after it's already happened. So this idea is weird. It's a problem that you help somebody escape a crime. But it's dumb to describe this as 'liability after the fact.' But there are a lot of states that still do this. The name is just weird for being a helper to a felon after the crim/helping them avoid prosecution

Hypos for conspiracy: 1. arranging a birthday party fight, or a killing 2. truck driver or drug smuggler 3. Cannibal cop or harmless fantasizer

1. Arranging a birthday party fight, or a killing a. Bridges brings Bing and Rolle to fight at a party with guns. Bing and Rolle fire into crowd while Bridges fights. b. Bing and Rolle = extreme indifference. c. Bridges = no purpose d. Bridges wants to fight Strickland with his friends Bing and Raleigh. He brings them bc he wants to hurt Strickland. How does he want to come across at the party: intimidating. He absolutely wants to fight, to scare people he has these guys with them. i. Suppose he knows Bing and Raleigh are armed, that they're likely to pull out their guns and start shooting: what's his mental state to any potential deaths that could happen - he's reckless 100%, and there's an argument that he's actually knowing (prosecution will want to show extreme indifference to prove homicide). i. Why does that not get us to conspiracy, though: let's say that there is an agreement, guys I need you to bring your guns: purposeful mental state toward the homicide. Still cannot do conspiracy to murder bc don't have purpose to the death. We could just have to do an extreme indifference argument to get to murder. 2. Truck Driver or Drug Smuggler a. Alvarez absolutely is knowing. That's not enough to get us to a conspiracy charge, though - so this story shows us that we can make circumstantial arguments to get to purpose. How do we argue that Alvarez is actually purposeful? he hopes that it's a successful plan. He hopes he's able to deliver his cargo, and he knows his cargo is weed. So it's totally possible to convince a jury that Alvarez is purposeful. i. From the facts, we should infer he wants to make a successful delivery. To be hired again, has to make explicit delivery. On these facts, we probably have him for purposeful conduct. b. How do we know we have him for agreement: agreed to drive the truck. That didn't happen by accident. Don't have a moment of handshake, but he agrees to drive the truck, knows it's part of the smuggling operation, definitely agrees to do that one task. This prob illustrates that we don't absolutely need explicit facts, we can infer purpose and agreement. 3. Cannibal Cop or Harmless Fantisizer a. Valles uses restricted database, conducts surveillance of would-be 'victims.' Discusses online an agreement to pay for kidnapping. b. Where do we get evidence of an agreement: explicit with the convo he has online, he's offering negotiations over a price. Why is there any defense at all here: he's just writing online his fantasies, didn't really mean it - is like the music lyrics ex. He'll say that we all know that I don't mean this stuff. But that's of course debatable.

A. Review of causation:

1. But for cause (aka Factual Cause) a. Set the series of events in motion ending in the result b. Without the But For cause, the result would not have happened 2. Proximate cause (aka Legal Cause) a. Factors: i. Time ii. Intervening cause 1) Accident 2) Other actor 3) Other bad actor = possible superseding cause - Criminal Actor iii. Foreseeability/culpability b. MPC: result not too remote or accidental to have a just bearing on actor's liability i. Totality of the circumstances analysis c. Some states add: and the result not too dependent on another's volitional act i. Bright Line Rule/presence of other bad actor means no proximate cause 3. Application of causation to discussion question 3 a. We have two diff kinds of causation. In problems, you need to cover both. Have to show that you know this rule. Prosecution HAS to prove but for causation, but it almost is never going to be an issue. Two ways of phrasing but for: set the series into motion; without it, the result wouldn't have happened. The fact that there could be multiple BF causes doesn't matter - as long as D is a but for cause, prosecution has est it. b. We have a list of factors for prox cause. We need to go through the story, look for each of these factors. Look for some evidence of a time issue, accident that wasn't anybody else's fault, people who were acting civilly bad/goofballs, other bad actors/other criminals/whose bad actions aren't necessarily criminal but are at that level; and looking for foreseeability/culpability c. In discussion question, where do we see some evidence for a time issue: she died two years later. Where's there evidence of an accident/an even that isn't someone's fault: the icy conditions that delay the ambulance from getting to hospital. ALSO: the avalanche. (make a list of facts, cross them off as you go). Where is there evidence of another actor: did something wrong but not criminally: Officer Yang - he was driving his car too fast - prosecution will say he was just another actor, but defense will say he's another bad actor. Argument for bad actor: he's responding to an emergency. There's an argument that he's actually going too fast. Arguably another actor: Doctor. Why arguably bad: hospital says she's dangerously reckless (why might be saying that: trying to say we know we're liable, for for somebody is dangerously reckless, it's their fault). Doc's argument that she's not a bad actor, just another actor: she says she was actually following protocol. d. What about Teobold herself? Could be an other actor or bad actor. Other actor: she doesn't appreciate risk. She has cognitive impairments, so she couldn't be culpable, she's not in control bc she has a mental illness/physical illness/brain damage. That's an argument she's NOT behaving criminally. It's like she's arguing for extreme mental disturbance. She's saying I'm not blameworthy. On the other hand, what allows the defense to argue she's a superseding cause, a bad actor, equivalent of a criminal: driving too fast risks other people's lives, could hurt other people. Skiing recklessly also hurts other people. (DO NOT worry that the facts aren't all there - you've gotta do inferences). (LOOK AT THE RULES, CHECK OFF FACTS) e. Why do we care about other bad actor: bc in some states, prosecution absolutely loses. f. D must argue that for all these factors, under MPC, (prosecution will argue when we look at all these factors, is fair to hold the D responsible; each might not be enough, but when you look at them as a group, it's not fair to put me in prison). Prosecution will argue the opposite - when you add them all together, with this many things, it IS fair to hold the D responsible. Cannot make this argument until you walk through all the factors. List the factors, then you argue for the defendant that there are too many things happening here for it to be fair to put her in prison.

A. Some states have alternative approaches to the "Agreement" element of conspiracy

1. Contrast to MPC, in which agreement by one actor is sufficient, even if the other actor lacks purpose (bc they're an undercover cop, government informant, etc) 2. Some states, though, require that there is bilateral agreement or agreement among all the actors. 3. Some states say we need a bilateral agreement, both parties have to really agree. Hall likes the MPC approach better - why should bad guy get windfall just bc it turns out the other person was lying/afraid.

A. Aggravation 1. Increase grade/seriousness of offense by one step (or more) if homicide committed with presence of aggravator. a. In general, the idea with aggravation is that we are increasing the grade of homicide. Taking a homicide that'd be neg homicide or manslaughter and moving it up to murder if 1) extreme indifference/depraved heart (if D acts with extremely indifference, might have committed manslaughter, but will bump them up to murder) 2) felony murder (idea that if the D commits a felony and during that felony someone dies. 2. Two aggressors/aggravation doctrines

1. Extreme indifference/depraved heart 2. Felony murder rule

I. Homicide: doctrines of Aggravation Hypo: Sabine Davidson

1. Facts a. SD raises German Shepherds and Rottweilers b. SD tries to train her dogs as "protection dogs" = attack training c. Three years ago her dogs nipped a neighbor's daughter d. The dogs occasionally break free from their pen, run free e. Dogs are not trained in basic obedience, get out often f. Repeatedly SD is told she's a bad handler g. In 1996, three dogs surround two children, policeman has to step in h. In 1997 SD lets out the dogs and takes a sleeping pill - they escape, terrorize the neighborhood i. Chris Wilson is killed j. SD laughs regarding the dogs laughing at officer, says "the dead one should be one of the Wilson boys" because they had previously teased the dogs 2. SD's mental state - Sabine doesn't want to commit homicide, no evidence she intended to killed Chris D. But there's no debate at all that she acted reckless. She's absolutely reckless, but not knowing, not purposeful a. This case shows us that the law grapples with people like Sabine, who seem like they're more than reckless, which doesn't seem able to capture how bad of a person she is i. Aggravation doctrines take people like Sabine, say that even though didn't know homicide would occur, we're going to treat them like they're in that worst category. 3. Review of Facts: a. She knows she shouldn't be training these dogs bc clubs have told her she's not any good, don't do it. b. She's been told specifically you're not a good enough dog trainer to be doing this. She's training aggressive dogs and just doing it on her own without supervision. c. Also: dogs got out before, she let them out at 6:30, took the sleeping pill. d. Also: June 1996 incident - the dogs had cornered two children. The most important fact is that she knows this group of dogs has previously surrounded a group of kids, posed such a threat that a state trooper got involved. i. Why's that absolute proof of recklessness: she's aware of the risk because the dogs get out and it takes a trooper to resolve the situation. Absolutely have her for the minimum required for recklessness. ii. Why are the facts in reality worse that merely recklessness: reckless requires merely knowledge of a risk. Her awareness is much more in the direction of knowledge, the issue is that it's not just a risk, it's a really high probability. It's a substantial risk the kids would be mauled. iii. But why is this more than just a substantial risk: these dogs have specifically shown that they will attack neighbors. Not just a 10% chance it'll happen - they've cornered kids before, this has already almost happened. e. Why is she more than just 'aware' of the risk: this isn't something that might happen in the future - the dogs cornered kids in the past. Came really close to it once already. i. She's already experienced the risk, it's not a hypothetical - we just didn't get the final result, a death. Not just aware in that she knows of a possibility, she knows of more than a possibility. f. Other word for reckless is that we have to have an unjustifiable risk. Why is this arguably worse than merely 'unjustifiable' (this is the minimum standard for recklessness): i. this isn't like you're out driving - you have to get to work, have to take that risk. No explanation for why she needs the dog. She's not protecting a business, this is just her hobby. ii. Also, unjustifiable because she knows she's a bad trainer. iii. Also: she laughed afterwards, so we know there's something about her that she almost hopes they'll scare the neighbors. iv. Plus she took the sleeping pill. Critical idea: what we see here is that on three parts of the definition of recklessness, Sabine seems significantly worse than the minimum standard necessary for recklessness.

Hypo for Impossibility: The Smuggler's Deceit

1. Facts a. Watson smuggling sugar concentrage b. So's drug smuggling with Panamanian officials c. Watson switches identical cases d. So spots the switch in line at customs; Watson tries to leave case behind e. Each confesses - Watson believes he has drugs and actually has sugar. So believes he has sugar and actually does. So actually had sugar in his case f. Smuggling sugar isn't illegal 2. Watson and So and smuggling sugar: what is it that So says he is doing: smuggling drugs. But really, he has sugar concentrate. He was just trying to impress his friend. Saying 'I have drugs' isn't breaking the law or threatening to break the law. Can we prosecute for smuggling sugar? a. So: no, bc it's not a crime, don't have anything to charge him with. So we can't prosecute him for smuggling sugar. Even though he has the intent to break the law. b. Watson: he's actually worse than So. He actually has sugar. He has the intent to break the law, but we can't here prosecute him. But what makes him worse: he switches their suitcases, so he thinks he's getting the drugs. He steals So's suitcase. That's straight-up criminal. And he's doing it bc he thinks it has drugs. He's trying to commit a v real crime - has the mental state to smuggle drugs, and he has the conduct, taking the case, to do it. That's absolutely proximity. He thinks there are drugs, so he's close in time, physically close, he thinks there's drugs, got off the airplane with the drugs, arguably v close to the point of no turning back. He thinks he's smuggling, and he's doing a lot of conduct. He's saved only by So's lie that there are no drugs. But if there had been, he'd have done everything necessary for us to prosecute him. He's 100% attempted to smuggle drugs. 3. Is So a dangerous person? A little bit. Watson is a lot more dangerous, more willing to break a more serious law. What did he absolutely do that makes him a bad person: he stole the suitcase.

Factual and legal impossibility:

1. Factual impossibility a. Would constitute a crime if completed b. Liability c. Actor cannot do everything desired d. Traditionally = liability e. Exs of factual impossibility i. Picking an empty pocket ii. Stealing from an empty house iii. Shooting a pile of pillows iv. Attempting murder with an empty gun v. Assassination attempt from beyond range f. Historically, in some states factual impossibility produced criminal liability - idea that if D could complete the crime, it'd be a crime. Classic ex - pick an empty pocket. Ie, if there'd been money, the act would've been completed. Actor only thwarted bc the pocket was empty, so the D is liable. 2. Legal impossibility a. "Hybrid legal/factual impossibility" b. Conduct completed, but not a crime c. Traditionally = no liability i. Actor does everything desired, but it's still not a crime d. Exs of legal impossibility i. Receiving non-stolen goods ii. Suborning immaterial perjury iii. Bribing a non-juror iv. Shooting a target deer out of season v. Attempting to buy a non-drug e. Idea behind legal impossibility is that the conduct is completed, but it wasn't a crime for some reason. Diff from factual: trying to complete and was thwarted. Some states used to say no liability here. Lots of states can't really see the diff tween this two, as does the MPC. f. The way we deal with impossibilities is that they're just attempts to commit a crime. Ex Watson, voodoo exs. Trad ex of this impossibility: receiving non-stolen goods. 3. This distinction is just a bad rule. Legal vs. factual distinction is unstable a. Many states abandon and move toward MPC position The MPC thinks these distinctions are bad, as does Hall

Effects of mistakes:

1. Faultless mistake a. If commit a faultless mistake, it negates purpose, knowing, recklessness, negligence. What sort of crime could we prosecute someone for: strict liability. b. Ex: speeding. Doesn't matter if your speedometer has been tampered with. c. If commit neg mistakes: negates reckless, knowing, purposefully. You've still negates most, since most codes don't have neg crimes. So you still might well escape liability. d. Actor Did Not Commit Conduct Negligently, Recklessly, Knowingly, or Purposefully, and it Negates Those Culpability Requirements 2. Negligent Mistake a. Negates Recklessly, Knowingly, Purposefully. 3. Reckless mistake a. negates knowingly and purposefully. You can still avoid, say, a murder conviction. b. If we have strict liability case, doesn't matter what kind of mistake has been had. Mistake has no effect. Liability without regard to fault - not negated by even a faultless mistake. Mistakes have no effect for strictly liable crimes. There is liability without regard to fault - not negated even by a faultless mistake.

Hypos concerning intoxication: 1. Food for thought 2. Poker interrupted 3. Blacked out drunk, murderer

1. Food for thought a. Facts i. Buff = married to Peter. ii. Sharon = best law school friend believes Peter is worthless iii. Sharon's plan = get drunk and kill Peter iv. Sharon adds drugs, Buff agrees to consume drugs v. They stuff paper in Peter's mouth, cause asphyxiation b. Sharon is the scarier actor - she wants to kill Peter, get drunk to do it. Wants to kill someone, she's already planning how to get away with it before it happens. So if she tries II, she's probably going to lose. She has purposeful conduct, wants to kill him. c. What about Buff: she decides to drink the drink with the pill in it. Decides to have a drink (ok), and take drugs. So why can't Buff argue II: she knowingly took a pill she knew was going to heighten the effect of what she was drinking. i. What specifically tells us she was voluntary in taking the pills: Sharon told her that it was going to 'have a zap, make us fly.' How we know it's totally voluntary: she says 'I deserve this,' treats this like a reward. So she's reckless, there's nothing debatable about that. ii. Focus on the moment where Buff is putting stuff in Peter's mouth: if she wasn't drunk, what'd we say: she KEEPS shoving stuff down his throat. Why else would you do that except to kill someone. iii. What's the defense: it's extreme recklessness, at least. In MS: she was mad about her books; alt - she was tuffing stuff down his throat, that's extreme recklessness/indifference. 2. Poker Interrupted a. Cameron makes a drunk assault on a card game, hurts McKinley. b. Cameron is drunk, attacks guy. If in IN or MS: charge her with aggravated assault, assault. If we're in a MPC j: maybe she will argue she was so drunk she didn't understand what she was doing - doubtful a jury might buy it, though. If they do buy it, we'll charge her with a recklessness crime. 3. Blacked out drunk, murderer a. Egelhoff is drunk, shoots his friends in the back of the head. Has no recollection, his blood alcohol level is at the 'death' level. b. It's only weird bc we know there's no video or eye witness: the circumstantial evidence is overwhelming, though. Not like these two guys shot themselves in the back of the head. No direct evidence, but absolutely no other explanation for what happened. There's really no defense argument here. c. Illustrates the question of whether or not the D gets to use alcohol. If he does include the evidence, has a fighting chance to show the ct he could not control his body, know what he was doing - bc of his extremely high blood alcohol level. If can intro evidence of blood alcohol, there will probably be some jurors who will think sending him to jail isn't fair.

I. Mistake A. Mistake is really just a part of the mental state discussion. It's just a continuation of our discussion on mental state. 1. A mistake is relevant if it negates the required mental state for the substantive offense. B. Ex of mistake: Sting song where the guy takes a gun, puts a bead on a writer, gun goes off, but didn't meant to shoot him.

1. From the outside, why does the Sting song look like purposeful conduct: put his bead specifically on that man. It's the pointing the rifle that's key - to that, that looks to an outsider like purposeful conduct. 2. If we know Sting's real interior thoughts, what's his mental state: reckless. He was aware of a risk but disregarded it. Pointing a rifle is definitionally reckless. Plus, there's no moment where he checks to see if the gun is unloaded. Since we don't have that, might be suspicious if we say he's reckless. a. If you're reckless, it's manslaughter. Purposeful is murder - Sting wouldn't get death penalty if his attorney could plead recklessness. b. Mistake: from the outside this looks purposeful, from the inside it looks reckless. c. He's not innocent, but he didn't act purposeful.

A. Significance of attempt:

1. Generally a. Equal to underlying substantive offense i. Sometimes: downgrading of highest felony to second degree 2. For any given offense a. Conviction of one of the following: 1) Conspiracy 2) Attempt OR 3) Completed offense

A. Review of Mitigation. Two mitigation approaches: Heat of passion, extremely mental or emotional disturbance

1. Heat of Passion a. Aka provocation b. Intense, sudden, justified anger caused by provocateur c. Objective reasonableness test d. No cooling off e. Mitigates homicide of the provocateur only f. This approach is crazy - says we think there is some anger that is ok to let you kill someone. We're allowing anger to be an advantage in the penal justice system. Saying 'anger is ok all of the time.' That's not sensible. This is like a weird holdover of 'honor killing/duels.' The thought is we're evaluating this based on objective reasonableness - do a lot of people think it's reasonable to get really mad at a cheating spouse and kill them. Apparently so. Rule says no cooling off period. Fifteen minutes even is too much, prosecution then has an argument. This rule mitigates the homicide ONLY of the provocateur. 2. Extreme mental or emotional disturbance a. Any condition b. Objective reasonableness - but viewpoint of actor's situation c. No required time period d. No limit on victim This approach doesn't just preference anger - preferences all emotional reactions, any condition. Feels more scientific, not just a victory for honor killings. And this rule instead of looking to cultural norms asks about the individual situation. We're asking about if you were in this person's shoes - doesn't require everybody to comply with the majority culture.

A. More about II 1. You can't claim II as an excuse if you were just a little bit II. a. Aka: somebody gives you one pill - does that automatically mean you have a defense? i. No. Intoxicants aren't an immediate switch. Just bc you've had an intoxicant, you don't completely lose control of your mind, at least not at once. ii. In most states, there's a point where you are out of your mind, but there are points where you're NOT out of your mind.

1. II under MPC: a. MPC says you have an II argument if you are unable to appreciate what you're doing, or if you can't control your body, can't appreciate the criminality of your conduct. i. Aka: you gotta be really stoned to have this as an excuse - can't use it if you're just buzzed. You have to lose control of your body or lose control of ability to understand what you're doing. ii. This is like temporary insanity. b. II is NOT an automatic win. Have to explain to ct you were so badly intoxicated you were unable to control your self, understand criminality c. No liability if actor unable to appreciate criminality or conform conduct bc of II. d. Two types of II recognized by MPC: i. Non-self-induced intoxication ii. "Pathological" intoxication e. Hurdle to this: actor is unable to appreciate criminality or conform conduct (FYI: same as MPC standard for insanity) 2. Under II: you win if can est one of the factors/elements under the "types of II," and can prove that it hurt you so much that you didn't know what you were doing/couldn't control yourself. 3. Every state recognizes, but it's hard to win: D has to prove: a. they were temporarily insane bc of intoxicatnt - didn't understand what were doing or couldn't control their body; AND b. must prove the method by which they became intoxicated.

A. A key analytical rule for the prosecution when looking toward instances where intoxication could be a factor:

1. Identify the most culpable moment in the story a. Don't default to the time of the conduct/result b. Look for the point on the timeline with the highest mental state 2. Restated: A common prosecution technique is to identify the moment in the story where the D is the most culpable. For Jordan, that's when he took LSD. If can identify a moment in the timeline where the D has a particularly bad mental state, that's where the prosecution will focus. If, for ex, he had written in his diary 'I hope I kill Wendy while I'm stoned:' we'd say he was purposeful when he took LSD. But we can probably just take the argument he's reckless.

I. Intoxication Main hypo: Jordan Weaver

1. If he didn't have LSD, what'd we prosecute him for, what conduct would we point to: a. He beats up Wendy. Strangles her, shouts at her, throws her head into the pavement. We can charge attempted murder: he looks like he's trying to strangle her, then throwing her into pavement after she's defenseless. b. We don't have the words from his mouth saying 'die.' So how do we show purpose: i. He wouldn't stop, didn't quit when he knew she was already injured. Continued to do it, slammed her headfirst - that shows he wanted to kill her. We have really good circumstantial evidence - why else would how put your hands around someone's neck, throw somebody headfirst into the pavement otherwise. In IN or MS, that's the end of the story - people can't give evidence of voluntary I. 2. If Jordan Weaver is allowed to put on evidence of LSD: will point to the instances of where he didn't recognize his sister's face, felt things crawl under his skin. What can he point to that people SAW: a. He tried to eat Wendy's fingers. That's not the sort of thing that a rational person would do. b. Also: they're beating him with a tire iron, he doesn't seem to be feeling pain. 3. He was arguing he's out of his mind, temporarily insane. If we let him make those arguments, he convinces jury he was temporarily insane, MPC says as soon as you put VI on the table, we hold you accountable for recklessness. a. So can we charge him for attempted reckless homicide: no. the challenge is that bc Wendy didn't die, we can't charge him with manslaughter. Can charge him only with attempted manslaughter, and there is no such thing. Can still be charged for assault. But that's a dramatic diff tween the result that would come if we took the state approach. 4. What's the most blameworthy moment? When he takes LSD. a. We're operating on this assumption bc everyone knows or should know that serious drugs cause bad trips. The argument is that this is a moment when he's reckless. They're dangerous bc in bad trips, people die. b. So we have a straight argument hat the moment he takes LSD, he's reckless about the possibility of causing death. But WHAT would his counterargument be: he's taken it before, never had this type of experience.

Complicity and Felony murder Is an accomplice to a felony during which a person dies, liable for felony murder?

1. If someone is an accomplice to a felony, during that felony somebody dies, we can prosecute that person under the felony murder rule. But remember that some stateas limit this. 2. MPC: if you use an innocent person to commit a crime, you're guilty. a. Accordingly: Some states limit application of felony murder to accomplice if: i. Unarmed ii. Didn't assist in killing iii. No evidence of foreseeability

A. "Substantial step:" MPC also gives us a non-exhaustive list of exs of 'substantial step' IF THEY corroborate with the criminal purpose. If prosecution can prove one of these, usually win.

1. If strongly corroborative: 2. Exs: a. Lying in wait i. Lying in wait is super bad. That's closensss, super close. The other things could be done months ahead. Lying in wait is freaking immediate. But MPC doesn't care - ALL are substantial steps b. Enticing victim c. Reconnoitering i. Reconnoitering = scoping out the joint. d. Unlawful entry e. Possession of designed materials (with no lawful purpose) f. Possession of materials in proximity (with no lawful purpose) ii. Possession of materials in proximity: duck tape and ski masks are 'designed' materials, like a sawed-off shotgun, but if you have them close to the victim, is strongly corroborative. g. Soliciting another h. Aiding and/or assisting

MPC standards for complicity

1. If, under MPC, we charge someone with attempting to facilitate: have to prove that the defendant took a substantial step. a. What would constitute a substantial step of getting the gun, short of buying the gun: at the gun store, if you go gun shopping - under MPC, that's a substantial step, doing research. 2. If you're charging me as an accomplice bc I've AGREED to promote/facilitation, unilateral agreement is sufficient. a. This again emphasizes the fact that conspiracy, attempt is rolled into this doctrine of complicity. 3. For attempting to promote/facilitate: a. Must have made a substantial step 4. For agreeing to promote/facilitate: a. Unilateral agreement is sufficient

A. More about VI under MPC: 1. VI negates mental state, then it imputes to the actor a reckless mental state a. Possibly est mental state higher than evidence - but note that if you're unaware dut to voluntary intoxication, still reckless b. Limits argument that intoxication negatives mental state

1. In states that follow MPC's approach, D will argue they were intoxicated so badly couldn't form a purposeful mental state. i. Jordan Weaver said I was out of my mind, trying to eat her fingers, not responding to being hit with a tire iron. ii. IF the D makes the argument that VI negatives his mental state, MPC says as soon as you put that argument on the table, we will hold you liable for recklessness regardless of whether we can really prove it. 2. As soon as you admit you took intoxicant under your own power, MPC imputes recklessness. 3. What's MPC doing here: first part is just science - people can go crazy. The second part is NOT science, with the imputation of recklessness. i. This is a compromise, an effort to reach a balanced result. Way this doctrine works: gives D an opportunity to argue they were so drunk didn't know what they were doing, but by doing that opening the door and pleading guilty to manslaughter/recklessness. This is only a win in, for ex, the Jordan Weaver situation. 4. Why would a D ever argue VI if it means they're voluntarily reckless: a. Trying to avoid a purposeful mental state. Aka, I'm admitting to recklessness bc then I avoid a conviction for murder.

elaboration on utilitarian theory of punishment:

1. Instrumental effect 2. Traditional utilitarian theory aims/goals: a. Incapacitation i. Where does it make sense to incapacitate someone - if they're an active danger. But not all offenders are a danger in the future. There are lots of offenders that they did a bad thing, but that doesn't mean they're likely to do a future bad thing. So incapacitation is a weird idea. ii. Hypo: is the only way to incapacitate someone incarceration? No, we can use ankle bracelets. b. Specific deterrence - offender c. General deterrence - society d. Rehabilitation i. Idea that we should work to get people GEDs while they're in prison, intro them to poetry classes, have rel opportunities open to them. The idea is that people commit crimes bc they are suffering from trauma, are broken, and if we address that, they'll lead better lives. e. Education/setting norms - reinforce rule articulation i. Another goal: education/setting norms: send a message to educate people, set norms for society 3. Critique of utilitarian theory a. Too much focus on benefits of punishment - lack of full cost/benefit analysis b. Incapacitation i. Costs of incarceration: pecuniary, personal, social c. Opportunity cost d. Non-pecuniary costs i. Effect of offender's family ii. Effect on community iii. Hardened criminal iv. Criminal networks/gang v. Lose opportunity for restitution 4. What should punishment theory rest on? a. Offense of conviction i. Legislative sentencing range b. Unique circumstances of particular offense and offender

Types of II:

1. Intoxication not self-inducted 2. Pathological Intoxication

I. Homicide: Causation Hypo: Jon Paul Govan

1. JPG's basic argument is a 'blame the victim.' Bc: basic test for proximate cause is a fairness test. He says it's not fair to blame me. It's really Sharon's fault that she died. What is it that Keeble does that makes it seem like she caused her own death? She had symptoms of pneumonia but didn't go to the hospital right away, and it got worst. Why is this particularly bad in her case: in her condition, she knew that almost anything would be fatal, she has this complicated medical condition. This isn't just 'a' person that doesn't want to go to the doc. This is somebody who knows she has a profound medical condition, and despite that is refusing to go to the doc. That's JPG's argument that she caused her own death. Another problem: her death happened five years after the shooting. Just something fundamentally unfair about prosecuting JPG for homicide when the death occurs five years after the shooting. In a normal homicide: we need conduct, mental state, result. In this case, have no result. So that's another argument that this isn't fair. 2. JPG might avoid liability for homicide, but not for everything. No doubt he was sent to prison for aggravated assault. Another way of saying this: are we going to prosecute him a second time bc of her death.

Causation hypo: Manny the Master

1. Kenny the hat = boss 2. Prosecutor Baylor 3. Squeeze and Manny = hired assassins 4. Squeeze = poison hotdog 5. Manny = subway push 6. There is one character in this story who is absolutely evil - who is sort of the most evil character - Kenny, the mob boss. He's the one who orders Squeeze and Manny to kill. Kenny DECIDES to have Baylor killed. That's uncomplicatedly bad. Guilty of conspiracy to commit murder. Squeeze is also easy to prosecute: she followed through with poisoning him. Baylor has already eaten the poison. At that moment, even if Baylor didn't die, we can convict her for attempted murder bc all the facts we need for that are in play. So this entire hypo is about Manny. 7. If we have a D who's trying to cause conduct or a result and causes that conduct or result but it happens to hit a diff target, that D is guilty. That's transferred intent. they're guilty. 8. SO: Manny isn't going to escape based on transferred intent. he's on subway platform, wants to kill Baylor. Baylor does eventually die. From Manny's point of view, his defense argument is that he's not responsible for Baylor's death. Baylor is responsible for his own death bc he was trying to see the man that had died. He stuck his head out too far. Baylro commits this really bad mistake - he intentionally leans out and gets hit by the train. Manny's argument is that Baylor did something reckless, leaned out in front of a moving train. So this was Baylor's own fault. Counter-argument: Manny you tried to kill somebody and that person died. The mechanism was surprising, but you tried to kill him and you did so.

hypo for Mistake: Thomas Laseter case

1. Laseter case is a mess. MPC is sexist. AK statues are almost as bad. 2. Lasseter's mistake: he thinks she consents. a. Second possible mistake he's making - suppose she says something that sounds like affirmative consent: she's intoxicated, so much so that she's incapacitated. Two ways of looking at this: mistaken about her consent or mistake about her capacity. 3. Rape provision 213.1 in MPC: a. "(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if: i. he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or ii. he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or iii. the female is unconscious; or iv. the female is less than 10 years old. b. Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties, in which cases the offense is a felony of the first degree. 4. Gross Sexual Imposition. A male who has sexual intercourse with a female not his wife commits a felony of the third degree if: a. he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or b. he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; or c. he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband. 5. Why, right off the bat, are these statutes messed up: worded as if you can't rape your wife. Also bad bc it only protects women from rape. a. We could charge this as 'attempt,' as he didn't actually have sex with her. i. Attempt, MPC 5.01. if you charge with attempt, there is no such thing as a 'reckless' attempt. You can't have reckless attempt. ii. You can charge someone with attempted rape if someone who drugs the victim. § Ex Brock Turner guilty of attempted rape. § Challenge with Lasseter is that he wants sex, but he doesn't know that she lacks capacity. What is his mental state regarding his consent: he's reckless. He knows that he's disregarding that she's barely able to stay away bc she's intoxicated. She's had at least 12 drinks in his presence. So he knows she's v intoxicated, yet he ignores that, decides that she's consenting. Why is this not negligent: bc he actually knows of the risk. She looks like she's had 12 drinks, he's seen her have them. iii. AK statutes: says maybe we can prosecute him for attempt - we need knowing conduct regarding the conduct (yes, he knew he wanted sex). Consent bit only requires recklessness. § Problem: Look at AL statutes, how they define 'without consent:' this would let him off the hook, let Brock Turner off the hook. Under this provision, Lasseter has an argument that she was not incapacitated: he bought her the drinks, but she didn't have to drink them. It's not like he drugged her. Here, it's in part her own decision. § Furthermore, she's at the bar already, had had drinks by herself. So he does have an argument under these statutes. This is a classic blame the victim statute. People who get raped when they make themselves drunk have themselves to blame. b. Can get a conviction for Sexual Assault Third for Lasseter just bc only involves sexual contact. iv. Does Lasseter have an argument that he wasn't even reckless, that it never entered his mind she was incapacitated, bc I also was drunk: we're going to study voluntary intoxication down the road. It imputes recklessness to the D - we're going to say you're reckless even if it's true in your head you couldn't appreciate the risk.

A. Complicity is the same thing as accomplice liability 1. Liability is based on whether you "aided and abetted" the principal actor to commit an offense 2. Assistance/encouragement

1. Liability for: a. Completed substantive offense b. Attempt 2. Complicity = accomplice liability. Same thing as 'aiding and abetting.' Those three are the same thing. 3. Complicity = providing assistance or encouragement to the principal actor. a. World seems to divide the world into accomplices and principle actors. Principal = pulls the trigger. Accomplice = supplies the gun. Accomplice can be both the mob boss and the side henchmen. Don't automatically assume that the accomplice is less bad than the principal. The key thought is just why you understand that everybody in an operation is a criminal, not the labels each person gets. b. If we charge one as an accomplice, can charge them for either attempt or for the completed offense. Prosecutors will often charge for BOTH - bc might not be able to get a conviction for one, but can get conviction for the other. i. Though judge will only enter an order for one or the other.

Impossibility under the MPC:

1. Liability if: a. Conduct which would constitute crime if the attendant circumstances were as actor believes them to be b. Actor commits conduct with the belief that it will cause result 2. Under MPC, we have criminal liability. All we're looking at is the D's mental state - if they think the situation is a certain way, if they think there's money in the pocket, that the deer is real, that the rifle can reach the target, we're going to convict. a. If D commits conduct with the belief they can cause someone's death, we're going to convict them. Just care about is the conduct illegal, does the D have the requisite mental state. If you tried to bribe a juror, you thought you were doing a crime, you're guilty. You're not off the hook just bc you tried to kill someone through voodoo. 3. What MPC is saying then is that impossibility has no effect. Impossibility only has effect, for us, in two cases: "Imaginary offense" and "non-dangerous conduct" doctrines

A. Required mental state for attempt (mental states needed for attempt liability differ according to state law, MPC):

1. MPC a. Conduct: purposely b. Result: purposely or knowingly c. Attendant circumstances: same as underlying crime (possibly reckless) d. MPC: catch only people who are deliberately planning crime. We have to prove purposeful conduct. We have to prove either purpose or knowing regarding the death. Must have purposeful conduct and be purposeful or knowing about the resultant death. e. What's our core thought about MPC: we have to prove purposeful conduct. So it is HARD to prosecute attempt - need proof of the highest level mental state. 2. States a. Functionally the same as MPC ("Specific Intent"). Ie, states say that the mental state for attempt is what's called "specific intent," which, at the end of the day, just boils down to purpose. 3. The core thought for mental states: to prove attempt, you'll have to have purposeful conduct regarding the conduct piece.

hypo for Mistake: Life-saving Necrophilia

1. MPC 2.04(2)!!!!!!!!!!!!! a. "If the D thinks they are committing crime A, but bc of a mistake they're actually committing crime B., they don't get to use mistake as a defense/mistake doesn't help them at all. They get convicted of crime B, that they committed, but get sentenced for crim A, that they tried to do. i. Restatement: if actor is guilty of another offense if situation as actor mistakenly supposed, then mistake doesn't negate liability, but it reduces grade/degree to offense supposed b. Apply to hypo: i. morgue attendant likes having sex with dead bodies. Turns out one body is a living woman that the orderlies accidentally brought down to the morgue. He accidentally revives her. He thought he was committing one crime, abuse of a corpse, but he's actually committing rape, which is a worse crime. But he's sentenced for abuse of a corpse, which is a misdemeanor, though he's convicted of rape. ii. Life-saving necrophilia is the ex we use for MPC 2.04(2).

A. Some states have alternative approaches to the "Overt Act" element of conspiracy

1. MPC approach: not required for serious offenses 2. Many states, however, require an overt act for all offenses. This is good because it keeps us from punishing "mere talk" Many states require an overt act for all offenses. Here, Hall likes the state approach better. MPC feels too much like we're policing people's thoughts.

Proximate Cause rules

1. MPC: Result not to remote or accidental to have a just bearing on actor's liability a. Totality of circumstances analysis b. MPC says we have liability unless the result is too remote or accidental to have a just bearing on actor's liability. What's the key word in this: "just." This is a rephrasing of the question "is it fair." MPC is just saying look at everything, all the factors, and ask is it fair to hold D liable. Where does D have the best argument: if the thing that causes the death is unforeseeable. Another good argument: if we have another bad actor - that's the person that is really responsible. 2. Many states add: and the result not too dependent on another's volitional act a. Bright line rule? b. presence of other bad actor means no proximate cause c. Some states will start with the MPC approach but add an extra thing. Say yeah we'll look at everything, but if there is a superseding cause, the D is off the hook. If there's another's volitional act. This si alike a bright line rule. Under this rule, D just needs to point to another bad factor - toerhwise, we're looking at all the circumstances. May be the reason why Root escaped liability (if his state followed this rule). When should you bring up causation: ONLY if you're dealing with a homicide, there's separation between the conduct and result. Furthermore, only if there's some disconnect between conduct and result

MPC Approach to conspiracy

1. Mental state: purposeful a. Mental state has to be purposeful. We think of the conspiracy is like a handshake, formal agreement, and that does NOT happen by accident. 2. Agreement a. Apparently between two or more people b. Conduct, cause result, attempt, solicit aid c. But only one actors needs to have purpose - aka, we only need unilateral agreement i. Ex: actor agrees with undercover police officer d. Conduct proving agreement - there are two conduct requirements: i. We have to prove the agreement. Easiest way to prove this - somebody testifies 'we agreed to do this.' ii. Needs to be between two or more people. § What's the problem - what if the other person is undercover. Is that an agreement under the MPC? Yes - can be unilateral - as long as one person really means it, that person is guilty of a conspiracy. OR if a maniac makes you agree, but you're not serious and just agreeing bc you're scared - you don't really want to join the conspiracy. § So the MPC doesn't let the bad guy off the hook just bc they're agreeing with the cop. § Note, though: agreement doesn't have to be an agreement to all do the same thing 3. Overt act a. Needs to be in the furtherance of the conspiracy b. MPC does not require an overt act for first or second degree felonies; required only for lesser felonies and all misdemeanors c. Note: the overt act MUST be separate from the conduct which shows agreement. Cannot prove it by just proving the agreement. d. Need real world conduct, intent is not enough i. Contrast to Attempt's 'substantial step.' Why the difference in the language: § Substantial step implies that you really need something moving to the crime. Here, though, just looking for anything moving toward the act. § Overt just means it's in the open. That's a v low standard. BUT it cannot be the same thing as the conduct proving the agreement aka the handshake - has to be something in addition to eh agreement. But can be any real-world act that moves the conspiracy along. § Ex if you agree and then together get on fb to stalk the victim. If you just get in the car together to go look at stuff afterwards and get caught in the driveway - that's still an overt act. None of that is to the level of substantial step, but it is enough to prove overt conduct ii. Under MPC, overt act is required ONLY for lower crimes and misdemeanors - NOT required for first or second degree felonies. § Why: MPC is saying these crimes are so serious, you shouldn't even joke about them (like at an airport, talking about bombs). Idea is that even if you have no intent of going further, if you agree with someone else to do it, they feel like you've got their back. The fear that once we get groups, group psychology takes over, the other person won't back off.

A. Review of Attempt doctrine

1. Mental state: purposeful a. Result: purposeful/knowing and attendant circumstances: Reckless? 2. Conduct a. Some states: Proximity test (three approaches): i. Closeness: temporal or physical ii. Dangerousness: weapons, victim, target iii. No turning back: commitment b. MPC: A substantial step i. A significant act strongly corroborative of actor's purpose ( = more than thinking or mere preparation) ii. List of specific actions: 1) Lying in wait 2) Enticing victim 3) Reconnoitering 4) Unlawful entry 5) Possession of designed materials with no lawful purpose 6) Possession of materials in proximity with no lawful purpose 7) Soliciting 8) Aiding and/or assisting 3. Application to discussion question 3 a. The big thing we're looking for in attempt is the conduct piece. You HAVE to point to some purposeful conduct by the D. that's the mental stae piece. How do we prove it for discussion problem 3: first sentence says that she deicdes to murder James - there's your mental state. b. We have a conduct factor. Diff ways to approach it. Some states: proximity test (three approaches). Some states look for closeness, some look for dangerousness, some look for no turning back. c. Is there an argument for closeness under A? No. is there an argument for dangerousness? Not a good one - there are no weapons; what fact makes her sound scary: she thinks about killing him for hours - she's obsessed. We have no turning back argument for A d. B: closeness? She's sitting outwide his work, we have physical closeness. Why no temporal closeness: she doesn't have a schedule yet when she wants to kill him. The defense argument would be that there is no temp closeness. Dangerousness: she has the knives - she has weapons. On the other hand, doesn't really have a plan to use them. No turning back: not really. e. C: we have the no turning back argument est under B. we get temporal closeness - she has a plan to kill him. But not a winner for prosection - not super close. It's a day away - that's definitionally in the moddle for both prosecution and defense. f. Under MPC, looking for a substantial step. Anything could be a substantial step, but MPC also gives us a list of things: lying in wait, enticing victim, etc. can argue that facebook is cyber-stalking. Is she lying in wait in B? No - bc there's no timetable. She IS reconnoitering. Also: she has possession of materials in proximity. Hard bc at one moment she has a lawful explanation, at another rpoint she doesn't: prosecution would lose when she was first driving home from having them sharpened. She'd say that they were kitchen knives, not murder knives. When will the prosecution win: when she leaves them into the car and never brings them into the house. 4. Defendant's main defense regarding an attempt charge: renunciation a. Abandoned effort or prevented the crime i. A complete and voluntary renunciation of criminal purpose ii. Not if calculated decision to avoid detection, apprehension, or failure/ or calculated decision to postpone b. Application to discussion question 3: Under D, is there an argument that Irene abandoned her effort: she decides not to kill him, BUT she's only going to give him one chance - that's just a postponement, not a change of heart.

A. Mistake: if a D has committed a mistake, can argue that they didn't have a purposeful mental state. When you argue 'I made a mistake,' you're just saying I wasn't as bad as you're charging me with being. Just 'I wasn't purposeful.' MPC says:

1. Mistake negates a mental state. Exactly the same as: can argue mistake to admit you're reckless but not purposeful.

I. Inchoate Liability: Impossibility A. What we need to know about Impossibility: 1. There's almost nothing about impossibility under MPC. MPC says that there's no defense - if the D thinks it's possible, the D is guilty. 2. No big thing on outline about impossibility, just two little weird MPC doctrines about it, though 3. There's an old diff between factual and legal possibility. We're only covering it so we know it exists. If we end up in a state that cares about this distinction, we've at least heard of it. Hall thinks this distinction is garbage, not intellectually valid. So we're going to take the MPC approach that the distinction is not valid. Don't have this distinction REALLy on our outline. Hypo for Impossibility - John Henry Ivy:

1. North MS case. Why would it be possible/easy to prosecute JHI for attempted murder: the first piece of an attempted murder charge - his mental state is purposeful. He has an absolutely purposeful mental state. But that mental state is that he wants to kill the judge, but he wants to do it through voodoo. Have an effortless argument for a purposeful mental state. a. Under MPC, then need a substantial step. We have a few of those: he recruits his brother. Two classic steps, remember, is agreeing with someone else to commit the crime. Then his bro, Leroy, goes out and solicits another person. So we have JHI for two substantial steps. 2. Let's talk about the proximity tests: what kind of closeness do we absolutely have, what kind might be a little bit harder to prove: temporal closeness wouldn't be that great bc he still has to ship it off. He's physically close bc he met with his housekeeper - also, he's physically close bc his housekeeper literally works in his house, steals his stuff. What about dangerousness: don't have weapons. a. But what other way is there to est dangerousness: they've gotten access to the victim - housekeeper could poison him, could potentially give the brother access to the house, she could also write down all of his prescriptions and embarrass him or just stealing them so he won't have them. So because she has access to the inside of his house, she is almost definitionally dangerous. 3. Last point, point of no turning back: no great argument here. Once the stuff goes in mail to the voodoo priestess, maybe will have that, but right now we don't. In short, the bros know they're taking efforts to kill the judge. a. Why does that make them dangerous: in their pov, they've entered into a conspiracy to kill the judge: they're dangerous bc they're risking life in prison and maybe the death penalty. They've done all the conduct, so they're dangerous bc you can't deter them, they've already worked toward the worst sentence they could get, can't deter them, might as well go ahead and commit more crimes, go ahead and kill him some other way. b. There's an argument that they have nothing to lose bc have already exposed themselves to the worst punishments. 4. The simple overall point here: for our purposes, this is attempted murder. Why is it in the book: it looks weird. They're doing attempted murder through voodoo, we don't think voodoo works. a. That'd be like doing murder with a lego gun, and they legit thought it was going to work. But if they really believe it's going to work, it's attempted murder. The instrumentality in this case looks impossible, but that doesn't stop our murder conviction.

Complicity under some states (contrast to MPC approach)

1. Not included in complicity is 'attempt to aid.' a. Some states approach to complicity: try to claw back all this leeway, say it's not possible to prosecute an attempt to aid. They think this doctrine gives prosecutors too much power.

I. Homicide: Doctrines of Mitigation Hypo: Garth Brooks examples: Papa Loved Mama; The Thunder Rolls

1. Papa loved mama by Garth Brooks. Dude drove a truck into hotel where she was having an affair. 2. The Thunder Rolls. In this ex, it's the woman that kills the man, smells somebody else's perfume, grabs a gun and kills him 3. Statistically, both of these mitigation arguments are used much more often by men than by women. 4. These exs are the classic version of heat of passion - one commits homicide right after finding out about infidelity.

elaboration on retribution theories of punishment: Retribution - there are two main retributive theories of punishment: desert and punishment

1. Punishment a. Idea is that we're punishing people not for them but for us. We want to inflict punishment on the offender - we know that the victim wants to do that for vengeance reasons. b. So our theory of law is that the prosecutor replaces the victim, because we want punishment on behalf of the community and not just vengeance for the victim. Punishing them to balance out harm to the community. c. That's a pretty abstract argument. The community can be all of MS or it can be Oxford of Lafayette county, our your neighborhood or church or family. d. Depending on how you define the community, diff types of punishments would or wouldn't make sense for the community - if community is just the family, sending someone to jail wouldn't be sense, is a disaster for that community. e. Punishment theory is that doing a bad thing, aka sending someone to jail, helps alleviate another bad thing to community. 2. Desert a. The idea that you desert punishment, your soul will be better if you get punished. May have experienced this as a kid - you wanted to pay a price, feels good after you'd done your punishment - feel like your debt is paid, I've been dreading it and now I feel like I can hold my head up again. Might feel spiritual - need this punishment to feel whole and good. Desert theory: punishment is good for you.

A. Review of Aggravation. We have two big aggravation doctrines - gross recklessness/recklessness "plus," and Felony murder rule:

1. Reckless "plus"/ Gross Recklessness a. It's the idea that the top level mental states that support murder, aka knowingly, willful blindness, and purposeful, has a fourth - gross recklessness. Those four are the ones that support murder. Purposeful is the normal one, knowingly is the support/quivalent to purposeful. Recklessness plus, we're saying, is so bad that we're going to treat it on the same level ast eh most intense mental states b. MPC: extreme indifference to the value of human life i. Focus: foreseeability/extent of risk/level of disregard ii. MPC version of recklessness plus doctrine: extreme indifference to the value of human life - something really foreseeable about the death/dxtent of the risk. Idea is that the D isn't just aware of something, but ignores repeated, serious warnings. More than just the 'mere awareness' for usual recklessness. iii. So for discussion problems week 2, what is it that Gabrielle does that points to gross recklessness: saw him slumped over steering wheel and left anyway. She knew he had an allergy and gave in the smoothie anyway. He asks for EpiPen and ignores him, dismisses his allergy while he is pleading for help. She's repeatedly disregarding things. She knows now that there's more than just a little bit of a risk. While she might have originally just thought there was a little bit of a risk, he asks her to help him, slumps over, tells her that he needs medicine. c. Many states: Depraved heart i. Focus: malice ii. Old common law version of recklessness plus doctrine: is focused on malice, the depraved heart standard. That's diff from indifference - you want to see someone suffer. Ex case: a man lets his wife burn. Also evidence of malice in that hypo: husband says hateful things, which leads to the conclusion he wants to see her suffer. iii. So what does Gabrielle do that's arguably malicious: she tricks, lies to Tanner. She refuses to help him when he's choking. Also: he TELLS her his throat is closing up, I need my epi pen, and she won't give him his medicine. 2. Felony Murder Rule a. Felony murder rule: any death that occurs during a felony, the person gets charged with homicide. This is the second doctrine of aggravation. It is the trad, common law doctrine. Many stateas have listed dangerous felonies to apply this doctrine to - as a matter of law, if one of these felonies is involved, we're going to say that it is definitionally gross negligence. b. Traditional c. Many states: limited (enumerated dangers felonies) d. MPC i. Robbery, rape, arson, burglary, kidnapping, felonious escape ii. Rebuttable presumption of extreme indifference iii. MPC version of felony murder rule has a really short of dangerous felonies that it is applied to (shorter than the limited lists most states have). Says that if one of these felonies happens, prosecution gets a rebuttable presumption of extreme indifference. Gabrielle is going to argue that she wasn't indifferent to her daughter's life, nothing really violent about her kidnapping 3. Limits: accomplice - armed? Direct involvement? Foreseeability? a. As a last thought: some states have said that regardless of which rule, we're really worried about applying felony murder rule to accomplices (people who help principle actor commit the crime). Unless they are armed, have direct involvement, or there is some heightened foreseeability, those states we won't apply felony murder rule to accomplices.

A. Attempted reckless homicide?

1. Recognized in one state: CO 2. There is NO SUCH THING as attempted manslaughter: it's not purposeful. However, in CO they recognize it. CO's reasoning: just require purposeful conduct, reckless regarding the result. Just change the mental state requirement for the result piece. He doesn't want this on our outline, though. For our purposes, no such thing as reckless attempts. 3. For our purposes: a. Attempt requires purpose/knowing b. No reckless attempt

A. Renunciation 1. Renunciation is a defense to a conspiracy charge 2. Renunciation, to be a successful defense, must be complete and voluntary. It must also: a. Prevent the crime/thwart success - ie, actor cannot just "abandon" the plot (as you have to do to claim renunciation for an Attempt)

1. Renunciation is a complete defense for conspiracy. Has to be immediate and voluntary. Cannot be a postponement, fear of getting caught. a. But for conspiracy, D HAS to thwart success of the crime. What's missing from this renunciation doctrine as opposed to renunciation doctrine for attempt: abandoned effort. b. Why is it that renunciation for conspiracy is harder than renunciation for attempt: i. attempt is scarier, more dangerous - make it easier to renounce than a conspiracy bc they're actually closer to the crime and we want them to stop, want to encourage them to stop the attempt, let's make it easy for you to have a defense bc we really want you to stop. Why is it not enough to go to police for renunciation under conspiracy, though: that might not actually prevent the crime - the other party can still go through with it (though in practicality that might be enough, it's no guarantee for this defense).

elaboration on modern theories of punishment:

1. Restorative justice - a more positive theory a. Restitution b. Community service c. Restorative justice: the idea that when you commit a crime, you've torn social fabric, what we should do is not to focus on individual, but on repairing the social fabric. Efforts to rebuild a functioning society. This idea overlaps with therapeutic jurisprudence 2. Therapeutic jurisprudence - a more positive theory a. idea = we should help people, both victims and offenders, and develop modes that they come out good instead of bad. b. Ex, in prison you only become harder or more violent in prison. We should be doing the opposite, do punishments that maximize the chance people become good instead of bad. Might overlap with apologizing to victim. 3. Denunciation/condemnation/stigmatization - a more negative theory a. Gives a public shame aspect to the punishment. Active argument if whether that is helpful. b. One form of stigmatization: informational punishments 4. Information - a more negative theory a. Informational punishments: ex sex offenders have to register. i. Registry is public. Have to report to the police every 6months to a year, report every time they change their address. ii. Based on the idea that community is safer if we know where sex offenders live. b. Other people say we need information sanctions on bad business practices - like a list of people who've defrauded people. Information remedies. 5. Preventative/prophylactic - a more negative theory a. The idea is that we do things to prevent crimes. We should be doing genetic testing on people with criminal tendencies, put them in psychotherapy. Kind of dystopian. Are we capable of predicting people's futures?

A. Required conduct for attempt 1. Conduct = actus reus a. What conduct do you need to prove/required conduct for attempt: conduct = actus reus = guilty conduct. 2. Under state law, need to prove that the D is committing conduct in proximity to the crime. Three diff tests for 'proximity.' Diff states follow diff tests.

1. Some states: proximity test a. Closeness (temporal or physical) i. First test for proximity: closeness. Closeness can either be in time or physical distance. Apply this to Robert J: physical closeness - they're physically outside of the bank. Are they temporally close - some moments, seems like they're 15 minutes, but then they backed up and were a week away from the crime - too fluid, probably not close enough. But if just an hour or two away, you're good. ii. Let's say that Jackson is in his apartment, police swoop in: people wouldn't get hurt, probably no other innocent people around. The thought is that in the apartment, you're not likely to have innocent bystanders, less likely to escape. The logic of the closenss rule, then, is that you can catch the bad guys at the bank OR an hour before they commit the crime. b. Dangerousness (weapons, victims, target i. Next version of proximity test: dangerousness. What makes bad guys dangerous: have weapons, close to victims or target. According to this test, when could we successfully prosecute the gang: certainly when they show up at their target. But when's the moment they become dangers: when they get their guns. There's also an argument that they're also dangerous when have handcuffs, bc that's the instrumentality for kidnapping. There's also an argument once they reach critical mass, when they bring in the weapons guy. ii. Argument regarding the dangerous test: once they're close ot the target or victim, even if no weapons, bad guys are arguably dangerous c. "no turning back" (commitment) i. Third test for proximity: "no turning back:" the moment when the bad guys are fully committed. What's the best case scenario here, where, if you're the prosecution, you're sure you're winning. Once they chance the license plate, that's pretty committed. Even better: if they had get out of the car and headed inside. Walking into the bank is really the moment when we have that commitment. Also: the moment they get in the car together, arguably, is a moment where they are fully committed ii. Imagine a diff scenario, that they needed computer code to rob it, that they went in together and got the codes: maybe that's when you could argue they were fully committed. iii. In short, the third test is the most flexible. Looking for a significant investment of time, money, or it looks like they're unlikely to change their minds. iv. NOTE: All the proximity tests are pretty hard for the prosecution. Whichever version we use, we can't convict attempt early in the process - have to wait until it's pretty far along. 2. MPC: A substantial step a. Strongly corroborative of actor's purpose b. = more than thinking or mere preparation The MPC, in contrast, is a lot easier for the prosecution: all the prosecution has to prove is that there was A preparation STEP that was substantial. Any significant step wins it for the prosecution. Need "more than thinking or mere preparation." Tiny pieces of preparation don't count, but significant pieces Do count. Need a level of preparation that matches the mental state. If you're a hobby target shooting, but also plan a murder, the fact that you go out and buy guns doesn't corroborate your purpose since you go out and do that pretty often. It's not like ANY act counts - have to show that the act underscores the criminal motives.

I. Culpability requirements A. Hypo: Thomas Fungwe (TF)

1. TF, as parent, has elevated responsibility/duty. 2. Argument he should be punished: a. to prevent people from doing this again. Why's this a diff argument in this case: it was unintentional - if we're trying to deter somebody, we have to reach them at a moment when they're deliberating. We can't stop you because you don't know you did it, necessarily. b. If we punish him, what might parents do differently: create memory cues to remind them of the kid in the backseat. Car manufacturers might have alarms, notifications to check back seat after a certain temperature. c. Legal question: what statute could we use to prosecute TF that guarantees us a result, though unsatisfactory? i. Child abuse by omission - child abuse in the fourth degree. We could argue TF committed an omission § weird - normally an omission is a lack of action. But still ok because he didn't protect his child, meet his parental responsibility to take care of his kid. When a parent fails in that duty by failing to do what they should do, that's equivalent to taking action. Strangers have only moral duty, parents have both moral and legal duty. § So TF committed an omission bc failed in duty. ii. Why would that conviction be unsatisfactory: bc it's a misdemeanor. 3. Why can't charge him with murder: wasn't willful or premeditated (he'd have to intentionally leave the kid in the car). a. We have no evidence that he wanted the kid to die. 4. Negligent homicide: hard to charge him bc wasn't operating the car at the time. a. If he'd gotten into a negligent accident, maybe we'd have a neg homicide argument. But here it's a stretch to say he's operating the vehicle. 5. What was his mental state, reckless or negligent: a. Negligence means failure to do what normal person would do - person doesn't realize the danger, but by failing to exercise ordinary care, they still should have known of the danger. That's TF - at the moment he got out of the car, he should've checked for his child. b. Recklessness is different. i. Ex a parent pulls up to the store, kids are difficult, parent tells them to stay in the car why they go into the store. How's that different: she KNEW she's leaving the kids in the car. She knows the kids are in the car, and when she decides to leave them, it's not that the parent should have known, it's that the parent actually knows they are taking a risk

regarding theories of punishment: Deterrence as a legal fiction

1. These forms of deterrence are legal fiction - they are theories that only work imperfectly. 2. Specific deterrance a. Calculus regarding apprehension/conviction - deterrence might not work; they just learn how not to get caught a. Cost/benefit - some people commit crimes not bc they're evil, but because crime is profitable for them. They calculate costs and benefits, we can't deter them through punishment. b. Presumption of repeat - Hypothetical replay of decision to offend - someone who does crime 1 might not even want to do crime 2. b. Rational actor - this is all based on the idea that someone about to commit crime is a rational actor. That's not reality. In reality, criminals aren't particularly smart - almost always are under influence of drugs or alcohol, emotional disturbance. Who are the most common victims of violent crimes: family and friends. Don't usually commit against strangers, just people close to them. Aka, criminals aren't thinking rationally. They're impulsive, drunk, distressed. Not sure we can really deter that 3. General. Thoughts about general deterrence: if punishing A with hopes of punishing B, B might be like I'm a better criminal and will get away with it a. Calculus regarding apprehension/conviction b. Cost/benefit c. Presume knowledge of law and punishments - we presume that people will know of the punishments for what they are doing. Again, also, people aren't rational actors. d. Rational actor e. Potential offenders like the defendant f. Over-deterrence - Over-deterrence issue: if we've already seriously punished someone, it's really hard to determine them - if they're already done this bad thing, might go on a spree bc they know we've already done everything we can, no more deterrannts - ex, sociopath goes on a killing spree bc knows he's already got death penalty.

A. Logic behind doctrines of mitigation:

1. These killers are less morally blameworthy a. Can argue that no matter what, you still killed someone. But there's still, potentially, a category of people that are less morally blameworthy that are captured under these doctrines: someone who literally cannot think about what they're doing, someone who's mentally ill. In general, mental illness is like physical illness - usually we don't blame people who have cancer. But that's not everybody that gets to use these doctrines. 2. We are unable to deter people who kill in these circumstances a. Theoretically this is a good thought. If somebody is so made their anger is clouding their decision making, it's true that we can't deter them. That's good if you believe in deterrence theory. But deterrence theory has its own problems 3. Acceptance of anger/lack of impulse control Both of these doctrines show that in US we have a startling cultural acceptance of anger, people with a lack of impulse control. There are other cultures that just don't tolerate a lack of impulse control, public anger.

chief Hypo regarding complicity: Cardinal Law

1. This story is meant to show us a long shot attempt by a prosecutor to show complicity. We're going to have trouble describing the argument that Cardinal Law was an accomplice. One reason for this: normally, an accomplice is a helper. In the classic pattern, the accomplice gets together with other people, have a discussion, they talk about things, there's an explicit discussion about what each person's role is. We don't have that at all with this cardinal. a. Aka, what's missing from this story that we normally have when we have a group of people that get together and decide to commit crimes: there's no conspiracy. Why this story is weird - a normal complicity story would allow us to charge conspiracy. Weird to have an accomplice liability charge where the accomplice never agreed to help the principle. If we DID have that meeting, this would be a really easy case. But we don't have words from the Cardinal's mouth where he says I want kids to suffer. 2. Facts of cardinal case: Cardinal Law did some stuff on purpose, we can absolutely prove that in regards to his purposeful conduct: he placed the abuser in a new parish where he has direct communication and contact with kids. He REPEATEDLY did this. That's absolutely purposeful conduct, he KNEW he was doing it. But to charge accomplice liability, have to prove not only that he was purposeful, but that he somehow wanted kids to suffer abuse. That's harder to prove. How do we make that argument, if we're the prosecutor a. NOTE: we have no problem arguing that the Cardinal was reckless. He might eve be acting kind of knowingly, but we still have to prove he gave purposeful help for the purpose of abusing boys) he did it repeated times. Another argument: he did it so often there's no other explanation. Another argument: as it repeats, you start feeling that he must want this happen - somebody who wanted it to stop would reassign the abuser. Somebody who doesn't reassign after this many failures must want something bad to happen. So this case illustrates to us the limits of accomplice liability.

A. What is mitigation: 1. Decrease the grade/seriousness of an offense by one step (or more) if homicide committed with presence of one of the two doctrines of mitigation - in practice, murder becomes manslaughter. 2. General idea that we're developing is that if we have a D who's been charged with murder, but they committed murder with the presence of one of these mitigators, instead of convicting them of murder, we'll low the conviction down to manslaughter. Murder becomes manslaughter. These doctrines are wins for defendants. There are two doctrines of mitigation:

1. Traditional/common law approach taken by certain states: Heat of Passion doctrine 2. Doctrine taken by MPC: extreme mental/emotional disturbance

Some notes on Causation:

1. Transferred intent 2. If actor has mental state regarding conduct/result, and conduct/result occurs, but happens to person other than the intended target, there's liability

Hypos on causation: 1. Two killers, one killing 2. pulling out his own tubes 3. A jump to escape, and drown

1. Two Killers, One Killing a. Lumen = victim b. Joseph Wood = first shooter c. Alma Wood = second shooter d. Joseph shoots Luman in the stomach. What's going to happen next: he's going to die. We could probably convict Joseph for some kind of homicide. But THEN what happens: Alma shoots LUman. Alma's shot kills him instantly. Our question isn't about Alma. We can prosecute her. Who has a causation argument: Joseph. What would be the best way for him to describe his argument: that Alma was a bad actor. Why is that his best argument: bc he's a superseding cause - in some states he'll just automatically win. If we're under MPC, still a good argument but not an automatic win. What will the prosecution say in response: that Alma isn't a bad actor. If she's not a bad actor, no automatic win for Joseph. Prosecution might argue Alma acted in self-defense. 2. Pulling out his own tubes a. John Slye = victim b. Benjamin Hamilton = aggressor c. Hamilton attacks Slye. In hospital, Slye freaks out, so docs restrain him so that he can't pull out his tubes. But then: they think he's calmed down so they take the restraints off. Slye later has a convulsion and yanks the tubes out of his nose. Pulls out his tubes in the sense that his body causes the tube to come out -but he doesn't do it on purpose. Much less volitional. So Hamilton would like to argue: another actor to blame it on - specifically a bad actor. Where does he have the best chance of claiming that there was somebody who was another bad actor: docs removing the restraints were at fault bc of the decision to remove Slye's restraints. If Hamilton can classify the docs are other bad actors, ahs a good argument under the MPC, and a winning argument in some states. How will prosecution counter that: docs are indeed other actors, but weren't bad, were just negligent. Threre's a diff tween civil and criminal neg. docs were merely incompetent, not criminal. What do we have from the facts that the prosecution can say the docs were merely incompetent: trying to help him rest more comfortable; their mental state: they don't think he's still agitated, think he's calmed down. That's just negligence, not recklessness. And even if reckless, probably not criminally reckless. What if Hamilton tried to blame this on Slye: there's an argument that SLye isn't even really another actor: his convulsion wasn't a voluntary act. He didn't consciously do anything. A convulsion is more like an accident than a conscious decision by a person. 3. A Jump to Escape, and Drown a. Deletha Wood = victim, who drowns b. Martell Welch = aggressor c. Is there any possible argument for Welch that he isn't responsible: not really. But what's the argument for him: we'd have to blame Word, the victim. What are the ways in which he can blame Word for her own death: she should not have jumped off the bridge, she should not have swung away form her rescuers. But was she a bad actor: no. was she negligent: yeah, sort of - she's not a good swimmer. Though she is jumping off to avoid her attacker. So that might not even be negligent.

Complicity under MPC

1. Under MPC for accomplice liability, we're looking for any conduct that constitutes promoting or facilitating (aiding and abetting, helping) a crime. 2. Requires conduct constituting 'promoting or facilitating.' Exs: a. Aids i. Ex: supplying the guns, the bullets, info about the victim or location. b. Attempts to aid i. Attempting to aid is also a crime: if you're trying to deliver a gun to the hitman but fall and go to the hospital, you've attempted to aid. c. Agrees to aid/solicit i. Agreeing to aid: if you have a meeting, say you'll get the gun, you've agreed to aid. d. Solicit i. Solicit: you agree to get somebody to find your gun expert. e. If under legal duty you fail to prevent i. If you're a bank guard and you bribe me to not press the alarm, you're an accomplice. Ex if you prosecute a high school principal when a teacher is abusing kids, no problem with that case bc has a legal duty to report sexual abuse. 3. So what have we rolled into accomplice liability: overlaps with attempt and conspiracy. We have therefore given prosecutors multiple overlapping ways to describe criminals' individual roles.

hypo for mental state: vegan death

1. Vegan death: what are the really good defense arguments - obvi they don't want their kid to die. They're def neg, but what about 'knowledge' and 'reckless:' knowledge - Parents had no knowledge bc their other kids didn't have problems. Reckless - they say they didn't know their was a risk. No conscious knowledge bc of their other kids. Defense argument against those two mental states

I. Inchoate liability: Attempt Hypo illustrating Attempt: Robert Jackson, A Plan to Kill

1. We care about JACKSON. He's the third member of the team. He gets out, takes off the cardboard license plate. 2. Why would we want attempt law that allows the police to swoop in and punish people before they complete the substantive crime: bc they still have the culpable state of mind to do it. We prosecute only when we have the highest mental state. Not worried that we're going to hit people in a lower mental state. The thought is that we want the police to act before anybody is hurt, there's a high risk of people getting hurt. We want the police to PREVENT the crime. We want to PREVENT crime. That'd be best for society as a whole. 3. We cannot convict for attempt unless the prosecution can prove purpose. Aka, this doctrine is hard for the prosecution to prove 4. 14th, first day that they're on the bank: why do we want them caught then: they have guns. They have handcuffs - could kidnap somebody. Also: they're changing the liecense plate - we KNOW they're getting ready to do the bank robbery - it's CLEAR they're up to no good. These guys were in the middle of an attempt if the police were to swoop in at that time. 5. This story is not to show us a debate. It's to show us stereotypical attempt, nothing complicated. Nothing about this is close. Even after they've driven off, they haven't given up, are absolutely planning on coming back. 6. Why does the book pick Robert Jackson? What is his role? He's the get away driver. Typically the driver isn't the organizer, the kingpen, the boss. Typically not the gun-toating member of the gang - typically thought of as the least blame-worthy. How do we account for this? Lower sentencing. The fact that he plays a less scary role doesn't mean he's not getting convicted, though. Hodges would probably get the highest sentence, lower level members of the gang would typically get lower sentencing. 7. Monday, 21st: the fact that they've decided to not do it doesn't offer them a defense - they were just afraid of getting caught. That's consistent with their planning on comn=ing back later, just haven A. A Plan to Kill 1. Why does X absolutely get convincted under the MPC? This case is in the book to show that in some states, we require really dramatic conduct to convict under the MPC. What's the conduct test under the MPC: a substantial step. Why does X commit a substantial step: he studied the layout, wrote about his plans in his diary. He did reconnaissance.

Homicide: Doctrines of Mitigation Hypo: The case of John Gounagias

1. What is it that he's upset about: he's more upset about being accosted, being made fun of than actually being raped. He's upset about the public humiliation he's facing. Hall thinks this isn't that odd - people who are victims of crime, esp sexual crime, is to disassociate during it. It may be that he has an imperfect memory. a. Second thought: a lot of sexual assault survivors go through psychological displacement - often the trauma gets shifted over to other things. JG's motivation seems strange, but maybe it's not that strange at all, may be really common. JG's going to have some problems claiming mitigation under heat of passion. b. Why does the prosecution have a really strong murder case against JG: we know he wanted to kill him - he gets his gun and goes to the guy's house. Also (facts that support the argument for murder): he "rushes out full of anger and rage" after being mocked. c. Also: he shot him FIVE TIMES. That shows that even if the first shot is in anger, that means he wants to make absolutely sure he has killed the guy. That act underscores what we think his mentality was. 2. Why does heat of passion fail as a mitigation: there's a three week lapse of time between the rape and the murder. This is a "cooling off period" between what looks like provocation and the homicide. But, in defense, is there a different act of provocation? Yeah, we can argue that there was provocation when the rowdy Greeks provoked him in the coffee house - he's provoked by public humiliation, his act comes immediately after that. Prosecutor's response: he didn't shoot the crowd that taunted him, he shoots the rapist. Heat of passion helps a D only if the person claiming it kills the provocateur without a cooling off period. 3. The act that pushed JG over the edge is distinct from the person he kills. But the rape took place a long time ago, killing doesn't look like an immediate response. 4. Shows us that heat of passion has all these particular rules to it that don't correspond exactly to the way our minds work - ex something happens, later we tell it, when we tell it we get angrier than we were when it happens - often, anger builds slowly. 5. Heat of passion doctrine does NOT work for all Ds. Also, the MPC's doctrine DOES work for someone like JG - much more flexible doctrine

hypo for Mistake: Stomach, Kidney, Whatever

1. What mistake does the dr make: mistakes dialysis catheter for a feeding tube. He's at least negligent. 2. Is there an argument he's worse than neg: yes. He doesn't have her medical history, her charts, so he doesn't know what that tube is, but he does know that he doesn't have her charts. Despite that, he goes ahead and says 'oh it's a feeding tube.' He knows there's a risk he's wrong, aware of the risk. Instead of spending enough time to figure it out, he makes a snap assessment. That's the argument that he's reckless. 3. But consider: this might not change his og argument - we'd probably never charge him purposefully in nay case bc he's not totally evil. So he probably doesn't have to use a mistake defense here

hypo for Theories of Punishment: the case of Sara Jane Olson

1. Why is this story in this section of the book? a. One thought is that she's not a principle actor, but a co-conspirator or accomplice. In the law, accomplices are often as guilty as the principle actor - legally equal. But that doesn't automatically affect the punishment. b. Another thought: she's no longer bad. She's doing good things for people, theoretically is rehabilitated. She's actually doing good, we no longer think she's dangerous. Why might we want to punish her today, even if she's personally rehabbed? It's deterrence for other people who might do the same thing. Domestic terrorism is a big concern. She was a domestic terrorist, part of an extremist group. Doing it not just to punish her but also send a national message that we're serious about terrorism. 2. How do we use this story to help us understand the material? What are the worse things she did? What are the most concrete things she did, and the worse things she did? a. Concrete thing: with the guy when he bought the pipe fittings - not totally clear what her role was in making the pipe bomb. b. Another concrete thing: she rented houses for revolutionaries under false names. c. Another concrete thing that's also really serious: her fingerprints were on the weapons and the bombs. That suggest some type of intimate involvement with the bomb making. The worst thing: 26 witnesses say she was intimately involved in planning the worst stuff. That's a lot more damning than the fingerprints.

Diff kinds of mistakes:

1. faultless mistakes a. Actor Unaware of a Risk That a Reasonable Person Would Not Have Perceived b. Ex: you move a fragile pot when cleaning, but you don't know the pot will fall apart by moving it - you didn't know that, thought you were doing a good thing. These are pretty rare. c. If you commit faultless mistake, did you act purposefully? NO. Knowingly, no, recklessly, no, not even negligent - even a reasonable person would have made it). Faultless mistake actor unaware of a risk that a reasonable person would not have perceived. 2. Negligent mistake a. Actor unaware of a risk that a reasonable person would have perceived. Ex - speeding in a school zone, you didn't see the signs. But not seeing it was just negligent. b. distinguish from if you drive by the school every day - then you'd be negligent bc you know it's there c. If you hit a kid, it'd be negligent homicide. d. Negligent Mistake - Actor Unaware of a Risk That a Reasonable Person Would Have Perceived 3. Reckless mistake a. actor aware of a risk that a law-abiding person would have perceived. You know there's a school zone, but you think there won't be that many kids, don't see any kids out right now. If you hit a kid when you knew it was a school zone, that's recklessness. Is it homicide: yes, but not murder. b. Reckless Mistake - Actor Aware of a Risk That a Law-Abiding Person Would Have Perceived.

Hypos that illustrate Attempt: A Holiday Breakout No Risk, No Foul Killing with AIDS

A. A Holiday Breakout 1. McCloskey in prison for larcey. Escapes at night with bag full of civilian clothes, scales wall, cuts barbed wire. Becomes ashamed and returns before leaving prison. Doesn't know that he set off alarm, that guards are looking for him. McCloskey voluntarily confesses B. No Risk, No Foul 1. Contrast MPC/normal common law with Utah/Maestas 2. What if law enforcement waits until chemicals are dumped into ground? 3. Elmo Scatena and sons agree to allow chemicals discharged into borehold on property Scatenas aware that chemicals might cause underground explosion or contaminate public water. 4. Possible to charge with Risking Catastrophe MPC 220.2(2) 5. What are they trying to do? Poison the people in the city? No - they're hoping it goes unnoticed. Just trying to get rid of the chemicals on the cheap. They don't want to be caught, certainly don't want to kill people bc then people would know they dumped them. So can we charge them with homicide for attepted poison? No. are they creating a risk people will die? Yes. But their mental state is reckless regarding the result that people could die. Purposeful about dumping, reckless about result. NO SUCH THING AS ATTEMPTED RECKLESS HOMICIDE. C. Killing with AIDS 1. Dwight Smallwood - has AIDS, commits three rapes. 2. Attempted homicide? Problem = level of mental state as to likeliness of death. 3. Reckless endangerment? 4. Smallwood is HIV positive. He rapes someone. What will we have to prove to show that this is attempted murder with HIV: he purposefully trying to infect her with HIV, and that he believed that infecting her would be deadly or create a substantial chance of death. We are not likely to have that proof. He's bad, but that doesn't mean you get to charge him with attempted murder. Have to show that rape was committed with the purposeful intent to cause death.

Hypos/exs that illustrate Conspiracy: 1. Let's Kill the Landlord by the Dead Kennedys 2. Sheik Omar Rahman

A. Ex: "Let's Lynch the Landlord" song by Dead Kennedys 1. The song's trying to shock, to a certain extent. But could we prosecute them for conspiracy to kill the landlord? No, obviously not, bc it's a song. But suppose we had a song plus real conduct: that has gotten successful prosecutions before. Besides the chorus, where are we going to get intent? How do we know they want to kill their landlord? "but we can, you know we can." 2. Also, how do we know they want to do it - landlord is treating them poorly in their eyes. Evidence he's bad: don't have heat or water, he's doubling the rent, have roaches and rats. This is a truly bad landlord. When we ask do they want to do it, the entire song is their list of grievances, establishing their purpose to kill. 3. Now talk about the actual chorus, "let us __ the landlord:" 'let us' tells us that they are conspiring together. The core of a conspiracy is when people agree. The word 'let's' is the very core of a conspiracy: it's when two or more people say 'let's do this together.' That is the CORE of conspiracy law. We have a word of agreement. B. Sheik Omar Abdel Rahman 1. What's easy to prove here - purpose. How do we know he has a purpose to see acts of terrorism happens, that he wants and hopes they will happen: he writes fatwahs about jihad. He's absolutely on board; by saying 'this constitutes legit jihad' he's encouraging them. 2. What crime could we relatively easily prosecute him for: incitement. What specific sentence here do we have that crystalizes this: when he hears about the attack on Lincoln tunnel, he basically says cool, that'll move Dwayne street to Reed street. That feels really concrete, he's pumped about what a big explosion it's going to be. But we also have to prove an agreement. 3. What's the stereotypical form of an agreement: shake hands. a. Do we have a moment where Rahman says 'let's shake on it,' let's do it together?' Nope. He's trying to cover himself up. He totally understands he has this defense he's a religious leader. b. Why isn't he coming out and shaking hands with people? So he can say he didn't actually do anything, I am at a distance from these people. Yes, I'm authorizing jihads, but that's religious acts. He's deliberately holding himself at a distance, and it's really smart. They have his blessing, but he's never really joining with them. c. This case shows us we can have a bad guy and might still struggle to prove conspiracy, have no perfect proof of agreement.

Inchoate Offense v. Attempt:

A. Inchoate Offense 1. Inchoate = An incipient crime a. Occurs in the early stages of crime b. Inchoate crimes includes Ds' acts of agreement, planning, preparation, efforts to achieve 2. Substantive offense a. A substantive offense is the underlying attempted offense that one is attempting to do. B. Attempt 1. What is an attempt? a. Actor "tries" to accomplish goal i. Cannot "try" to accomplish goal accidently (there's no such thing as negligent attempt) 2. Rationale a. Culpable mental state b. Pragmatic 3. "Attempt:" if you attempt, you are trying to do something. An attempt means you are trying to make something happen. If you're trying to make it happen, hope it will happen. There is no such thing as an accidental 'try.' If you're attempting, you're trying, hoping, wanting to make it happen. 4. The only people we catch with the attempt doctrine is people acting PURPOSEFULLY, NOT just random goofballs.

Brief review of mental states:

A. Mental states 1. Purposefully: conscious object to cause result. Aka: intent, desire, want, hope, plan 2. Knowingly: aware of practically certain result or high probability. a. The key to argue knowing: even if we don't have evidence of a want or desire, actor committed x knowing that y would very likely happen. b. Aka, knowingly is circumstantial evidence of purposeful conduct. The law just wants to recognize that sometimes we don't have good evidence of want, desire, hopes, but if we think the person knows the result will happen, they're almost as bad as someone who acts with purpose. Aka, knowing and purposeful go together - two sides of the same coin. c. Willful blindness is the legal equivalent of constructive knowledge. Willful blindness = consciously avoiding knowledge 3. Recklessly: conscious disregard of substantial and unjustifiable risk of result a. Key to argue recklessness: that the D knew of the risk. May not have wanted the risk to happen, may not have known it was certain or a high probability, but still knew it existed and acted in spite of it. 4. Negligently: should have known of substantial and unjustifiable risk of result a. Key to argue negligence: the 'should have known.' Didn't actually know of the risk, but they should have. Note diff tween civil and crim neg: crim neg causes a big bad result. B. Strict liability (sometimes grouped with mental states - ie, here mental states do not matter 1. Who does this help, P or D? helps prosecution bc means they don't have to make an argument about any mental state. Just has to prove that you did x, not that you knew or wanted or even ignored that you were speeding.

Brief review of Mistake:

A. Mistake - categories and effect of mistake: 1. Faultless - negates all but strict liability a. Ex: "it was an accident, it wasn't my fault." Ex: you're driving, cold but not freezing, don't see anything on the road, suddenly you hit ice, skid, hit a pedestrian. THAT is an accident - no reason you should have thought there'd be ice on the road. 2. Negligent - negates reckless, knowing, purposeful a. Another ex: it IS below freezing, but you still don't see the ice. You know there might be ice. There, you'd be neg - you should have known there'd be ice. 3. Reckless - negates knowing and purposeful a. Ex: below freezing, you hit a few icy patches, you keep the speed you were - now you're reckless, you actually know the risk, you know there is ice out there. B. Notes on mistakes: 1. If you're in first category, faultless, you can't be convicted even of a reckless crime. In second category, negligent - might be to your advantage to say you were negligent - if you get charged with manslaughter or murder, if you admit to neg homicide, that's a better deal than getting convicted of murder. What about reckless - good option to plead recklessness than get charged for murder C. 204(2) - Mistake bust still a crime: actor thinks they are committing crime A, but actor is mistaken and is actually committing crime B. actor is convicted of crime B but sentenced as if crime A. 1. Note that, in general, doesn't help to quote from the MPC. MPC isn't real law anywhere. 2. However, we do need to know this provision "mistake is still a crime here." This is the "life saving necrophilia" example. 3. You can't argue mistake if you know you're committing crime A but realy commit crime B - can't make a normal mistake argument.

discussion of punishment v. harm, punishment v. revenge when discussing theories of punishment:

A. Punishment v. Harm 1. What is the harm? a. Victims b. Society/community/social fabric c. Victim's community d. Offender's community e. Offender's character, identity, soul f. Offender's relationship to society 2. Status of the harm? a. Ongoing b. Completed c. Likely to recur d. Influence/encouraging others B. Punishment v. Revenge 1. Punishment a. Rational/moral b. Emotive/social c. On behalf of society d. On behalf of the victim e. For the offender 2. Revenge a. By the victim b. By society: vigilantism, vicarious vengeance

Diversity Readings:

A. Reading 1 1. What's the bad news we're getting in this reading, as lawyers: we want the justice system to give fair and equal justice, we want uniform or consistent sentencing. We're not getting that. We don't want justice to be arbitrary depending on where you live. 2. We have a responsibility as lawyers to uphold these ideals in our system of law, one of which is some minimum level of uniformity in sentencing. This article suggests we have inequality for a bad reason: (diversity doesn't automatically bring something good) more strict sentencing in more diverse areas. 3. Why in homogenous places is there more leniency: bc the people benefitting seem familiar to the people punishing them. 4. This article tells us that diversity is hard work. What's one thought the article gives about why things are broken: elections - one of our problems is that more democracy is not always good, maybe appointed judges and prosecutors gets us betters results. B. Reading 2 1. The extreme mental or emotional disturbance doesn't increase the type of Ds claiming it - just expands the universe of men that get their murders mitigated when they kill women. Cultural defenses: immigrants raise these defenses. This article is saying that diversity isn't easy. Sometimes you have people who say I committed rape, but in my culture that's ok. C. Reading 3 - victim-blaming 1. Why do we get sucked into victim blaming: bc of the American dream - part of that dream is controlling your destiny, what happens to you. There are a bunch of movements in US the point to capitalism, prosperity gospel. 2. Why, in general, do people want a world in which we are in control of what happens to us, and how does that go to victim blaming: makes us think that if we don't do the same thing as people that are hurt, I won't get hurt. a. Why is that an empowering thought, a thought that purports to give you agency: you're building your own safety net, a way to think you're taking control of your own destiny. 3. More psychological reason why we do victim blaming: we frame it around the victim. a. Note that our textbook doesn't do that - his framing is around the defendant, is named according to the defendant. Also, he asks us to punish the D. that framing is essentially telling us that we may disagree about how much to punish, but all agree they should be punished. b. But when a news article comes out, we're focused on victim, we haven't caught the perpetrator yet. The framing matters. D. Reading 4 - Driving while black 1. What are the diff versions of driving while black, why is it happening - one phenomenon is someone has no taillight, police pull them over not for taillight but some other reason. SC has said that we ignore the pretextual violation. Aka, as long as you can sail taillight was out, no turn signal, doesn't matter was racist. a. Another phenomenon: use a profile, like race or religion, to pull someone over. b. Third phenomenon: police regularly do enforcement in one neighborhood, no-enforcement in another neighborhood. 2. But then we get this really good study about DUI stops and arrests. Might expect some statistical diffs based on DUI arrests, but we're not seeing it. If nothing else, though, this study tells us that men are arrested after DUI stops at a much higher rate than women. a. One possible explanation: men are seen as more dangerous, though women can be just as intoxicated. E. Reading 5 - racial bias in teaching evaluations 1. Hall says that when he was looking at evals, he didn't see big racial differences, but he did see big gender differences For female profs, there'd be a lot more comments on their dress or tone of voice.

Renunciation of attempt:

A. Renunciation 1. Renunciation: if D renounces/gives up their attempt. This is a defense to a charge of attempt. To prove renunciation, D will need to prove that they abandoned their efforts, completely gave up, or prevented the crime. Is really hard to prove that you have abandoned. Bc a lot of times you just decide to wait. In Jackson case, we don't have renunciation, just postponement. 2. Prevention the crime: if a client comes to you, says my friends have been planning to do this, but I want out, encourage them to pursue prevention. Best way to do that is go to the police. 3. Abandonment is HARD to prove. Much easier for D to try to prevent the crime. a. Abandonment needs to be a complete and voluntary renunciation. Can't claim abandonment if you just see the police - that's just fear of getting caught, it's not voluntary. If you give up bc need another person or weapons, that isn't renunciation. We need someone who's genuinely had a change of heart. 4. Renunciation is a defense to an attempt charge 5. Abandoned effort or prevented the crime a. A complete and voluntary renunciation of criminal purpose 6. Can't argue for renunciation if: It's been calculated as a decisions to avoid detection, apprehension, or failure OR you made it as a calculated decision to just postpone.

Theories of Punishment:

A. Retribution - there are two main retributive theories of punishment: desert and punishment A. Utilitarian - goal is that we're not giving punishments bc they're good in of themselves, but for some other reason. A. Modern theories of punishment - really diff - some of these are sort of positive, some are negative.

hypos for mental state: Cut, Weight of Authority

Cut: director didn't want kids to die. Argument against knowledge - no knowledge of a practically certain result or a high probability: he thinks it's just "tricky" to do what he did. Should he have known: yes. Def negligent. Reckless, was he aware of a risk he disregarded: people warned him, but still has a good argument - everyone agrees to proceed!!!!! MUST APPLY, REVERSE ENGINEER THE FACTS Weight of authority: argument she's not reckless - counselor tells her to do it. She'd sat on his six times before, each time he was ok. So she can say wasn't aware of a risk

mitigation hypo: a vigilante mother

Ellie Nestler ex: she kills Driver. Why's she going to have trouble claiming heat of passion doctrine: bc she doesn't kill him right after her son had been molested. Also, she wasn't the one molested. Also, not clear that what she's upset about is the molestation - she's mad that he's not taking it seriously. Prosecution: it's not clear what she's upset about is the abuse, seems like she's upset about her son testifying. Driver might not be the immediate provocateur - she's upset about her kid testifying in court. Not directly caused by the molester. The kid is upset about being in court. That's not the kind of provocation that's like finding out someone committed adultery. Why is there an argument that whatever she's experiencing isn't immediate, bam, she's angry: the prosecutor will say you knew this was coming, this wasn't a surprise, you knew he was going to have to testify, that that would be painful, and that is not provocation, that's the way the criminal justice system works. But the MPC doctrine would be morel likely to work for her.

mitigation hypo: escaping the aliens

Eric Clark ex: has mental illness. In his mind, he's running from aliens - he thinks he's doing something good, fleeing from the aliens. No justified sudden anger here, so heat of passion doesn't mesh with this at all. From inside his head, he thinks he's the hero, killing invading aliens. There's nothing objectively reasonable about this, so he's going to lose on every piece of heat of passion. We use it to illustrate how a genuine mental disturbance can work.

mitigation hypo: A mercy killing as his last act

a. Bob kills his wife, who's terminal. Why can't he use heat of passion: bc he had a lot of time to think about what he was going to do from the time of his wife's illness. Anger is missing. He's more sad than anything else. What else is missing: there's no provocation here. If he's provoked, he's provoked by her cancer. In the law, we need a person to be the provocateur. So heat of passion fails completely. He'd have to rely on MPC doctrine.

Homicide: causation A. Introduction 1. Types of elements a. Conduct b. Attendant circumstance c. Result i. Result may occur after conduct ii. Result may occur because of multiple reasons 2. Introduction slide: we know there's three diff pieces in crimes: conduct, attendant circumstance, result. Homicide has conduct and result, might have attendant circumstance. Where in these three elements are we having a causation discussion: with result. Remember JPG case: we have conduct, but no result. That's where we have a causation debate. 3. We don't have causation discussions with other crimes, ONLY with result crimes. Homicide is the chief ex of a result crime. a. Why we have causation discussion with result element: bc a result may occur after conduct, and result may occur bc of multiple reasons 1. Two components/Two pieces of causation:

a. But for cause b. Proximate cause 1. But for cause a. Factual cause b. Set the series of events in motion ending in the result c. Without the but for cause, the result would not have happened d. The Ds acts set in motion the series of events that lead to the reslt. As long ast h eDs are one of the reasons that the result happens, we have but for causation. Without it, the result wouldn't have happened. 97% of the time, he's not going to be asking for but for cause bc it's est. on exam, just wants us to recognize when there's a causation question, that the prosecutor has to est but for and proximate cause. In other words, our entire discussion on causation in this class is about proximate causation/legal causation. 2. Proximate cause a. Legal cause b. Aka fairness c. All we're asking is: is it fair to hold the D responsible. That's it. We're looking at any facts or circumstances that gives the D an argument that it's not fair to hold him responsible. In JPG case: we look at victim's conduct and passage of time. Let's pretend that some people went to the hospital, docs misdiagnosed the wife's condition. Then we're looking at some other actors. What if we have some evil doc that likes to see people suffer, intentionally misdiagnose here - that could be a consideration. What if, instead, she's crossing the street, sees a bus, bus driver yells that the brakes have gone out, she is hit bc can't get out of way in time. That feels more just like an accident, nobody's fault. So we have a lot of things that could give rise to a fairness argument for the D.

Required mental states for complicity: Some other js:

a. For acts of promoting/facilitating: purposeful b. For underlying offense conduct/result: purposeful i. Only: accomplice to murder c. Some states hate MPC approach, say that the conduct needs to be purposeful across the board, aren't going to use complicity law in crazy law MPC does. Aka, only result crime that is possible for complicity is murder. 1. Recap: if proving accomplice liability - prove purposeful mental state in providing the aide, have to prove mental state regarding the offense. a. Under MPC, if offense crime, must be purposeful. For results crime under MPC, doesn't have to be purposeful. b. Some states change this, require purposeful for conduct for all types of crime.

A. Required mental states for complicity: 1. MPC and some js:

a. For acts of promoting/facilitating: purposeful b. For underlying offense conduct: purposeful c. For underlying offense result: i. Purposeful, knowing, reckless, negligent ii. Accomplice to: § Murder § Manslaughter § Negligent homicide d. Mental state for complicity: first thing we need to prove that the D provides the aid on purpose - if it's my job to get the gun, say 'here's the gun," that's purposeful. i. But if I lean over, you grab the gun from me, that's NOT on purpose - that's just negligent, having a gun in your pocket. ii. To prove you're aiding someone, must prove that you on purpose are helping them, didn't give them the plans to the bank on accident. § Ex: you accidentally email me bank plans - that's just negligent. § Another ex: if you have ton of guns, don't have them locked up, you might be reckless - but if I take them, you're not purposeful, not an accomplice. iii. In short: supplying the aid has to be purposeful. § What did the cardinal do that was absolutely purposeful: reassign abuser to positions around kids. e. IF WE ARE CHARGING a conduct crime like arson, rape, robbery, have to show that the accomplice WANTED that conduct. That's the second part of the mental state - gave aide purposefully, wanted the crime to happen. i. Aka, if you give someone a gun to protect your home, and then you go rob a bank, you're not an accomplice. Purposefully gave aid, but not for the robbery. Have to prove purpose both for the aid and the crime. ii. Going to have to have some evidence that you wanted the robbery to happen, that's why you gave the gun. f. What if, instead of a conduct crime, we have a results crime like homicide: homicide works differently. Of course we can prosecute complicity to murder - 'assassinate the teacher' means you are complicit, purposefully gave gun, killed person. But if you're over at friend's house, say that you really want to kill somebody, you try to kill somebody off by giving them a gun: purposeful with giving them the gun, but not purposeful that someone's going to die (though probably reckless, if you're physically freaking out). Under MPC, we can prosecute people if we purposefully have aid and the homicide is a reckless homicide - can prosecute the helper as an accomplice to murder. For a results crim, we don't need purpose - just the mental state for that results crime. i. So we can also prosecute as an accomplice to manslaughter - that makes sense: is somebody at your house freaking out, don't hand them a gun - if they go out and kill somebody, it makes sense you're liable.

mental state hypo: The case of Lennard Garnett

a. He WANTED to have sex - "One thing led to another." But he didn't go into the room to have sex, but afterwards they decide to have sex together. Did he use physical force or violence - no. b. Did Erika consent - yes, the facts tell us that they had "consensual" sex. c. Old fashioned defs of rape: "force or violence;" today, there are other grades of this; go from 'force' to "lack of refusal," and, most progressively, "is there affirmative consent." d. The only issue in this case is the age of the other party. In almost all states, it's a crime to have sex with someone who's under the age of consent. e. All we want to know is what did Lennard Garnett know about Erika's age, what was his mental state. Did he want to have sex with a 13-year-old. Did he know she was 13? No. was he aware of a substantial risk? Maybe. f. What facts do we have so there's a really good defense: he has a low IQ, developmental problems. But also, he doesn't have an idea that there's a risk she's not 16. Her friends told him she's 16. We don't have any affirmative info that he might think she's younger. g. There's a good argument here that he's negligent - he should have known she was younger. You don't KNOW for sure that someone is 16. There's a range. Can argue he should have known. h. But let's look at the statute. What level of proof does the statute require regarding the D's knowledge of the other party's age: requires no mental state at all. So the prosecutor doesn't have to prove that Lennard knew anything about Erika's age. No req that he have a mental state about her age. i. This case is used to illustrate strict liability. We're holding him strictly liable even though he might not have had any mental state about her age at all. ii. What about MA's statutory rape: strict liability - liability without regard to mental state/culpability iii. Strict liability is the fifth mental state!!!!!! § It is v rare we can prosecute someone for a criminal offense on strict liability - but statutory rape is one of those. § Speeding tickets are misdemeanors, for ex, and you're strictly liable - same for parking tickets. v "regulatory offenses" = parking, speeding tickets, saying that those are more like regulations than criminal laws (though they are cirmnial laws). They don't have the moral stigma - not particulary wrongful that people speed. v They are regulatory offenses until the bar starts seeing a lot of them iv. What's the moral message we're trying to send if we make something a strict liability crime: you should abide by it and it doesn't matter if you wanted to or not, therefore don't do it. Restated: "don't do it, doesn't matter if you wanted to, therefore you need to be aware of it." What tool do you have to prevent yourself from speeding: cruise control, speedometer, speed limit signs - you have tools to help you. It's on you. We put the burden on you to not do it.

1. Many states' approach to II and VI:

a. II is the only type of intoxication defense that is recognized - no role, option for VI defense.

mental state hypo: Morisette v. US

a. Issue - does 'knowingly' apply to 'convert' b. This case is about how statues are written. It illustrates that when we have a mental state word in a statute, that's not absolute. c. Did M know he was picking up shells? Know they were valuable? Y. he knew a bunch of things. You can prove knowingly about a lot of pieces of conduct. d. What didn't he know: he thinks he's cleaning up abandoned casings, thinking he was just cleaning up, basically, trash. He doesn't realize he's taking someone that the gov still wants. Issue: how far does 'knowing' go into the statute. e. In your writing, you can use tabulation to show how far knowingly goes into a statue. i. Under second writing in slide, a prosecutor wouldn't have to prove that someone with drugs knew how much that drug weighed.

A. There are two types of intoxication: voluntary (VI) and involuntary (II). 1. MPC's approach to these two types differs from some states:

a. MPC's approach to II and VI: i. II - gives an excuse to the D. ii. VI - gives the D an excuse whilst simultaneously aggravating their case § Intoxication may negate the 'purposeful' mental state, but it automatically imputes recklessness § MPC acknowledges VI. But some states just refuse to let the D make voluntary intoxication arguments, can't make any arguments about it. Just going to treat you like you have no defense. v That's the position of MS and IN. v Why would we tell Ds you're not allowed to argue for voluntary I at all: bc some criminals would just get drunk and then say I didn't know what I was doing, get away with it. Also: don't wanna prop up I like it's ok. Also, these states are prob worried they're opening a bottomless pits of defense arguments.

there are three elements to conspiracy:

a. Mental state b. Agreement (as shown through conduct - default ex of this is 'shaking hands.') c. Overt act (as, again, shown through conduct)

I. Throughout crim law, we're going to be ranking crimes based on what's in the D's head. When we talk about Culpability, we're talking about two things; mental state and conduct. A. Criminal liability bc conduct committed with a culpable mental state B. Conduct = actus reus. C. Mental state = mens rea (guilty mind). 1. We rank crimes based on the mental state. This is a core part of crim law. Ex of ranking using varying degrees of homicide (remember, we use mental state to grade offenses; ranking is based on mental state):

a. Murder = homicide committed purposely or knowingly. i. Murder is the worst kind of homicide bc committed purposely or knowingly. b. Manslaughter = a homicide committed recklessly. c. Negligent homicide i. Most states have some form of negligent homicide = mostly limited to vehicles. ii. Homicide committed negligently. 1. Homicide recap: a. Use of mental state to grade offenses. Murder - homicide committed purposefully or knowingly. b. Manslaughter - homicide committed recklessly. Negligent homicide - homicide committed neg.

"Intoxication not self-induced:"

a. Not knowingly consumed i. The simplest version of II iss someone gives you a drug without your knowledge (not knowingly consumed, intoxication not self-induced). ii. problem for D if somebody puts a drug in their drink: they're already consuming a drink that'd inebriate them. b. No knowledge of intoxicating effect (nor should the actor have known of the effect) i. Under "no knowledge," you could win even if you're obvi drinking alcohol - you didn't know there was a narcotic in there, no reason for you to know - since didn't know or should have known. ii. Therefore this is a fairly broad defense for people that consume intoxicants that somebody else gives them. c. Medical advice - consumed under med advice without knowledge of intoxicating effect i. You take a drug under medical advice, but doc doesn't tell you about the side effect ii. We'd apply 'ought to know' standard here as well - if doc says 'no side effects whatsoever,' you should be suspicious of that. d. Other circumstances - duress, necessity, etc Can also argue II, not self consumed, under other circumstances: duress, coercion, necessity (you think that if you don't take drugs somebody will hurt you).

1. Model Penal Code (MPC) mental states: (MPC starting point for a lot of state codes) defs of mental states:

a. Purposefully = conscious object to cause result i. In English: intentionally. Purpose = intent. They meant to do it, WANTED to do it, MEANT to kill someone, HOPED to kill someone. § If can't use one of these words, you don't have purpose. Have to have a D who wanted or hoped to kill someone. § Here's the problem: in real world, don't often have direct evidence that D wanted to kill someone. b. Knowingly i. Knowingly is a substitute for purposefully in most crim codes. ii. Knowingly = aware of practically certain result OR had knowledge of high probability. Knew that x would happen (so, in legal analysis, we conclude that they must have wanted it to happen even if we don't know for sure) iii. Willful blindless = consciously avoiding knowledge; that's the same thing as knowing, according to the law. c. Recklessly = conscious disregard of substantial and unjustified risk of result. i. Arson ex: why's there an argument that if you commit arson and kill someone you've committed a reckless homicide - there's after hours staff there, plus we know that with buildings, we KNOW people are regularly in them. § So the law takes the position that bc buildings regularly have people in them, setting fire to a building is definitionally reckless. ii. Another ex: definitionally reckless in many states to point a gun at someone bc guns are inherently dangerous. There's a giant risk. iii. Another ex of reckless conduct: driving and texting. iv. Reckless - I know there's a risk, and I'm going ahead anyhow. You know of a risk, you're aware at the time you do it that what you're doing has a level of danger. d. Negligently = should have known of substantial and unjustifiable risk of result. i. D didn't know of the risk (like in recklessly). Much lower standard than the other three. ii. Civil neg vs. criminal neg § In civil neg, if I slip and fall, even if the ground is sawdust, minimal risk, if I fall, I can sue you. § Under criminal law, we need a SUBSTANTIAL risk. So a mere slip and fall isn't criminal, potential injuries are minor. Same 'should have known' as civil neg, but much greater risk in crim neg iii. Negligent - you later say 'I should have known.' To improve negligent behavior, you have to change habits, bc it doesn't require deliberation Strict liability

Mitigation doctrine taken by MPC: extreme mental/emotional disturbance

a. Requires extreme mental or emotional disturbance b. Mitigates murder to manslaughter - this is contained in the MPC Manslaughter Provision c. Reasonableness test i. Viewpoint of actor's situation ii. No specified time period - focuses on idea of 'building anger' instead of a cooling off period iii. No limit on who the victim may be d. MPC doctrine's an attempt to take common law doctrine and make it scientifically accurate - yeah, sometimes people are so messed up that they commit homicide. They're having mental, emotional turmoil that cause them to have impulse control problems, but psychologically we can't always classify the emotion as anger - sometimes it's confusion or self-loathing. Often doesn't happen on a linear timeline. The victims are often not necessarily the people that caused it. e. This doctrine mitigates murder to manslaughter, also going to look at reasonableness, but we're going to focus on actor's situation instead of cultural norms - from viewpoint of D, was this reasonable. We're going to ask what a reasonable person in the actor's situation have done. Instead of preferencing only cultural stereotypes, we can have someone with a unique response, and they can still claim the MPC doctrine. f. Also, there's no specified time period - recognize building anger g. More scientifically accurate than common law doctrine. h. Aren't we getting real close to insanity defense with this? Yes. MPC has interlocking doctirnes to realize the effects of mental illness. This doctrine is applicable, though, only if prosecution starts with a murder charge - more limited than a general insanity defense

mental state hypo: Babies and ditches

a. The diff tween Carrie and Geets: Carrie is acting negligently. What's the fact that est absolutely that Geets is absolutely malicious - that mental state is purposeful. Geets WANTS to kill Anver. What fact later takes 'knowing' off of the table for Geets - he thinks there's less than 10% chance Anver will die. How could Geets then argue this: he doesn't have absolute knowledge. i. NOTE: Knowledge has three definitions: 1) Certainty. Here, prosecutor can't prove certainty bc Geets isn't certain. 2) Awareness of a high probability. Defense can argue it was a low probability that Anver will die. 3) Willful blindness. Does Geets engage in conduct to deliberately avoid learning how Anver will die: No. b. So this is a convoluted problem. Geets wants the result, hopes for it, but does NOT know it is going to happen. c. Why is Carrie negligent - she thinks it's going to be a joke. "Carrie is unaware that it creates any risk." So she's NOT reckless. i. SHOULD she have known - absolutely. You could argue she's only neg in a civil, not criminal, sense: crim neg is she should have known of a substantial risk. Was there really a substantial risk of anybody dying here - her argument can be that it was so unlikely that she wasn't even criminally neg. the chance of someone dying was so small she wasn't criminally neg.

A. Proximate Cause factors 1. Time 2. Intervening cause a. Accident b. Other actor c. Other bad actor (superseding cause) 3. Foreseeability a. Culpability 4. A list of factors to look at for proximate cause:

a. Time i. Passage of time. Just seems unfair to hold someone criminally responsible for a death that happens a long time after the D's conduct. This is the whole reason why we have statutes of limitations. b. Intervening cause i. the bus that hit her, the docs that misdiagnose her, accident, etc. c. Which would prob give the D the best argument that we don't have causation: other bad actor i. I'm not responsible, this OTHER person is. If you can say some other evil person did it - it's really that person's fault bc they're a superseding cause) d. foreseeability i. if death is foreseeability, that's going to link to culpability, make D liable (which story would the D have an argument for that the death wasn't foreseeable: the bus with the brakes going out. That seems pretty unlikely. Even more far fetched: a meteor hits her. ii. So what matters is it foreseeable that if you put someone in a wheelchair with a bad medical condition, they die? Probably, yeah. You put them there, that means they have to get all this medical treatment). e. Both of the tests we're gong to look at consider the proximate cause factors. Time is easy to spot. Accident means something happens and there's no person to blam for it. Other actor means docs misdiagnose her but not on purpose. Other bad actor = some other criminally bad actor. Note: civil neg is NOT criminal neg.

A. Logic of conduct test 1. Why?

a. To confirm that actor formed the intent to commit the offense (and deserves punishment) b. To ensure that liability falls only on culpable actors not just people with evil thoughts

Traditional/common law approach to mitigation taken by certain states: Heat of Passion doctrine

a. Typically mitigates murder to manslaughter - takes intentional homicide to a 'reckless' level b. Key in this doctrine is the idea of provocation i. Typically: intense, sudden, justified anger § We have to have provocation caused by provocateur that results in intense, sudden, justified anger. In JG case, it's hard to determine if his anger is actually caused by the provocateur ii. Caused by the provocateur iii. Heat of passion lowers intentional homicide to a reckless level. The core of this doctrine is provocation (called the 'provocation defense' sometimes). § This is a problematic concept - Hall thinks that even if you're provoked you're allowed to kill someone. So why, in the US, is this idea of provocation allowing murder problematic? If we say provocation allows you to respond, we're going to have a lot of killings. § What else: how many times have you said 'I'm so stressed out' - this is a stressed out country. We're going to face lots of regular provocations in our daily lives. If we're grappling with this issue, we KNOW people are going to be provoked regularly - kind of like we're saying we can tolerate a certain level of homicide, and htat's weird. iv. Provocation in this doctrine results in an intense, sudden, and justified anger. v. Think: what are some other ways that people result to provocation besides anger: withdrawal, self-blame, self-loathing. This doctrine, though, requires anger, preferences people who, instead of internalizing, lash out - and that's weird. c. Details regarding this doctrine: 1) Objective reasonableness test § Problematic: according to the country songs, what constitutes an objectively reasonable act of provocation or anger: adultery, finding out about adultery, walking in on them or catching them in the act. Why is that true? We know adultery is really common. Why does that make people so angry that they kill? It's weird we have decided this is objectively reasonable. § What else could cause justifiable anger? Racial epitaph, someone insulting your mother - maybe objectively you could get a jury to say that is enough, but we don't have country songs about those, not as common to think of that as objectively reasonable anger 2) No colling off period § Critique of no cooling off detail: psychology tells us people are more messed up a week later than they are when it actually happens. Most of us end up taking out our anger on the people around us a long time afterwards. Heat of passion is built on this stereotype of someone who immediately goes off on their spouse who is having an affair. 3) Mitigates homicide of the provocateur only d. Heat of passion: sort of a cultural motif, the standard idea that we have violence that takes place immediately following some sort of dramatic provocation. There's a stereotype that people commit violence after they're provoked. i. Most common type of provocation: finding out your SO is cheating.

Pathological intoxication:

a. Unanticipated level of intoxication bc of unforeseeable exaggerated response to known intoxicant (aka, allergic reaction) b. Pathological: you took drug, knew it was drug, knew it would have some effect on you, you have some wild allergic reaction to it - didn't know the effects would be so bad. i. Hall thinks this should be rolled into first doctrine, but MPC and a lot of states treat it separately. Hall said wouldn't have these two diff kinds of II. c. Jordan weaver could argue pathological - had had LSD before, had never had a bad effect. Prosecution's response: you're not a LSD expert, don't have a bad trip every time and everybody knows that - reasonable person should've know of the risk.

Examples that illustrate Impossibility:

i. 2011 Exam 2. The Magic Potion § Can Nancy argue imaginary offense: no. she wanted something bad to happen, murder. Murder is not an imaginary offense. Does she commit conduct inherently unlikely to result in a crime: she can argue that the potion normally wouldn't hurt anyone. Pete has a v rare allergy. So she's doing ok on that element. It's only because of the dumb luck of him having this weird allergy that he dies. § But why does Nancy struggle on the next element: why is she dangerous - she actually wants to kill him and does the conduct to act on it. Aka, this may not have killed Pete, but we're scared of Nancy bc if she had failed with the potion, she could have done something that's more harmful. She's scary bc she's willing to make a death potion and deliver it to someone. § Focus now on just her conduct - what does she do that's super creepy: she has adulterated, altered his food. That's gross and creepy. So Nancy cannot qualify for this mitigation provision. ii. Lethal Spitting § Gregory Smith has AIDS. He bites a guard, Office Waddlington, trying to give him AIDS and kill him. § Smith is trying to give people HIV. He's trying to kill people, attempted murder. Really simple case. Does he qualify of non-dangerous mitigation: maybe he can win on the first element. But he is absolutely dangerous, he's trying to kill people, and it's def dangerous to bite people. iii. In re "In the Nose" § Guy with a foot fetish. Is this an imaginary offense, is it inherently non-dangerous conduct.

A. What is conspiracy 1. Conspiracy is an agreement among a group of two or more actors to commit, attempt, or solicit a crime. a. Some members of the conspiracy may agree only to aid, facilitate, or plan i. Note: principals vs. accomplices 2. What is a conspiracy: an agreement among a group of two or more actors to commit, attempt, or solicit a crime. Agreement to do a crime - can be to commit a crime, attempt it, or just gather together people.

i. AND some members may agree to do just a little piece of the crime, might agree to just do the research, or get the weapons, or destroy the evidence. § We don't have to have all the conspirators agreeing to perform equal roles. § And you might agree to do research and not know about all the other parts of the plan, what the other people are doing. § This means that conspiracy law gives prosecutors huge power. What does this tell us a prosecutor can do using conspiracy law: allows prosecutor to charge anybody involved at any level of people involved in the agreement. § That's a huge, huge circle of people - anybody who agrees to play any role in this crime. That gives prosecutors a lot of power, bc can get minor players to testify against other people in the conspiracy, 'roll up the crime,' work their way up to bigger players. So think about drug distribution network, all the people that are a part of that: street sellers, distributors, kingpins, people bringing drugs across the borders, transporting drugs from borders to the neighborhoods where they're distributed. All of those people know this is a drug operation, all want the big operation to succeed, but all have their own small role. That again makes conspiracy very powerful for prosecutors

a. Issue: does 'knowingly' apply to 'convert.' Also, does mental state apply to a particular element here. How to fix this: break it down into points. "A person who commits the following acts knowingly: 1) converts 2) government property" is a lot easier to understand as opposed to "a person who knowingly converts government property.

i. Another ex: A person who commits the following acts knowingly: § Converts § government property § with a value in excess of $50,000 VERSUS ii. "A person who commits the following acts knowingly: § Converts § government property iii. if, without regard to the person's mental state, the value of the property exceeds $50,000."

Extreme indifference/depraved heart

i. Manslaughter becomes murder. ii. Extreme indifference: homicide committed under circumstances showing that D acted with extreme recklessness - treat that just like murder if go far beyond minimum standards for recklessness. § Why do this: moral reason - extreme reckless as almost as bad as people who act with purpose. This doctrine dramatically favors prosecutors. iii. Homicide committed under circumstances manifesting extreme recklessness iv. Two approaches to this aggravation doctrine: MPC and common law/the approach of many states v. MPC: extreme indifference to value of human life § Level of foreseeability § Extent of the risk § Level of disregard § MPC: what we're looking for is evidence of extreme indifference to the value of human life. § Sabine has dogs that are violent, bad trainer, having inadequate inclosure, living in neighborhood with lots of people, taking sleeping pills so can't supervise dogs, etc. when doing MPC analysis, focus on the level of foreseeability. § Another way of describing extreme indifference is we're looking at the size of the risk, or the level of disregard of the risk, just don't care about it. Risk too big, D is completely disregarding it. vi. Common law/the approach of many states: depraved heart homicide § "abandoned and malignant heart" § Implied malice § Looking for a D who acted with a depraved heart. Key word is 'depraved,' older words = abandoned and malignant. That suggests moral vacancy, some evidence of evilness, that they're a terrible person. § Want some evidence of malice. With Sabine, don't know we have a whole lot of evidence to this. What's the thing she does that seems the most malicious: laughing about the dogs already mauled the kid. That feels malicious, but it's hard to argue that tells us of her mental state beforehand. v Also: why does she want killer dogs? But that doesn't really get us any closer to malice. Would be a lot easier to prosecute under MPC. § Ex: Common wealth v. Malone v Russian roulette case. v Would this be easier to prosecute under common law or MPC: probably matches more with extreme indifference. Ø It's foreseeable that pulling the trigger that the gun will fire eventually. This is so close to knowledge that you could probably prosecute someone just for knowledgeably. This feels very foreseeable. v What about Malone analysis doing depraved heart: if you're participating, you want to see someone die. That feels pretty depraved. Why does the fact that this is a game make it sound evil: shouldn't be playing games with human life. That's a straightforward argument that this is depraved and evil.

one issue with mental states: i. Cumulative = greater includes lesser. Aka: If we can prove purposeful action, we can convict D under any statute that requires reckless, negligent, knowingly. If we can prove the top one, we can prove all of the lower mental states as well. (Greater includes the lesser)

§ Cumulative = Greater Includes Lesser. proof of higher mental state allows conviction. Ex: if a crime states that recklessness is the mental state = recklessness is the minimum mental state; guilt if defendant acted purposely, knowingly, or recklessly § if no mental state is given in statute, the default is that it requires a reckless mental state. In turn, negligence requires explicit statement that it is the required mental state. § If a crime states that recklessness is the required mental state, we can convict if can prove recklessness or purpose or knowing. § There are many states that don't list a mental state in the statute. What's our default rule if there's no state listed: we assume 'recklessness.' That's just the default rule, according to MPC. § In some state rules, there'll be a provision that says 'all required mental states if not stated is recklessness.' § What mental state to we have to EXPLICITLy state to get a conviction to convict someone under the no mental state rule: negligence. If can prove acted under the three higher ones, that's enough. v Unless legislature expressly says otherwise, you're free to act negligently unless the legislature explicitly says otherwise - not criminal to act negligently unless legis says otherwise. v Reckless conduct is bad, don't do it, negligent conduct isn't generally criminal.

i. Some crimes are result crimes, some crimes are conduct crimes. Conduct crime - bank robber. Result crime - homicide.

§ Ex murder we don't care how you killed, we just care that you killed, caused a death. v The mental state works diff. with bank robbery, we ask did you try to get money from the bank. With homicide, just ask did you kill someone, did you cause a death. v Application of MPC Mental States Differs Depending on: Conduct Crime - bank robbery OR Result Crime - homicide

i. Crimes with attendant circumstances: mass of the drugs - if you intentinally possess drugs and, without regard to menal state, drugs have x weight, you're charged with drug possession. That's what we were doing with rape. Pick apart the conduct and attendant circumstance.

§ Ex: many states say it's worst to kill police than ordinary person - that's an attendant circumstance § Crimes With Attendant Circumstances: ex certain categories of rape = age of victim; drug dealing = amount of drugs; sexual assault = consent

i. Does, in general, a prosecutor have to prove that you did someonthing knowing it was a crime: generally, no - only have to prove you did the thing. "ignorance of the law is no excuse."

§ Knowledge of illegality is not required for conviction - ignorance of the law is no defense.