Criminal Law Dressler/Outline

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Criminal Law
Authors Joshua Dressler
Text Image of Understanding Criminal Law (Understanding Series)
Understanding Criminal Law (Understanding Series)
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Principle of Legality: Prohibition of retroactive criminal law making. For a person to be convicted of a crime, the person must have notice that conduct was illegal at the time of the illegal conduct.

Actus Reus-The Bad Act (CL)

1. Elements:

a.  Voluntary Act= Volition MUST be Present (AKA the minimal mental element required for AR- related to MR but NOT the same)- consent of will must be present for actions to be determined capable

-Habitual acts fall on the side of voluntary

-Voluntary does not mean intentional

Ex) shooting a gun at a target and hitting someone by accident- voluntarily shot the gun but no intention to harm person

**Lacked MR, but did engage in the Voluntary Act

-         Automated Response- no willingness/volition

If there is sufficient evidence for automated response then Q can go to the jury, but cannot be too speculative

-         Omission- The Neg. Act

Generally, a person has no criminal law duty to act to prevent harm to another even if can assist without any risk of harm to herself/himself

To act must have more than a “mere moral obligation”

Must possess a legal duty to act (5):

1)Statutes- pay taxes, parents provide food/shelter to minor children


3)Status Relationship- parents/marital/employers/invitee

4) Voluntarily assuming a duty of care and secluding from help

5)Failure to Act when Created the Risk of Harm

** Some states have passed Good Samaritan Laws which make it a misdemeanor to not come to the aid of a stranger in peril under specified conditions.

b. That Causes

c. Social Harm

-Conduct Crimes-the endangerment of social arrangement or important value

Ex) Drinking & Driving

-Result Crimes-the endangerment is the result

Ex) Homicide

-         Attendant Circumstances:

A condition that must be present in conjunction w/ the prohibited conduct, or result in order to constitute a crime

**The AR does NOT occur unless conduct element occurs w/ the attendant circumstance

Ex) Drinking & Driving- Intoxicated condition is the attendant circumstance whereas driving a car is the conduct (being intoxicated is not illegal, but driving while intoxicated is)

Ex) Burglary- the breaking and entering of a dwelling house of another at night

Aatnd. Circ.=dwelling house of another at night

Conduct=breaking and entering

Actus Reus- MPC 2.01[edit | edit source]

MPC 2.01[edit | edit source]

-         Sec. 2 sets out nonvoluntary acts that do not constitute AR

1) Reflex/Convulsion

2) Sleepwalking/Unconscious Movement


4) Body Movement not conscious or habitable product of determination.

-         Sec. 4 addresses Possession as an Act-if unknowingly had drugs planted on you then cannot be convicted for possession

-         Sec. 3 -omission- is only basis for liability if a) omission is expressed by the law to be an offense, or b) have a legal duty to perform the omitted act

Mens Rea- The Guilty Mind/ Bad Intent (CL)

The specific MR must be proved in a particular crime, and not just the mal intent

-         Occasionally intent elements will be defined in a statute

1. Intent Elements: (Subjective)

a. Desire/ Conscious Objective;  OR

b. Acts w/ Knowledge- that social harm is virtually certain to occur as a result of conduct   

-         Transferred Intent: 

D intended to harm A, but harmed B instead then Ds intent to harm A transferred to B, BUT this is only allowed within the same crimes!

Ex) Throwing a rock intending to hit a person, but accidentally shattering a window does not mean the intention to injure property will be valid

-         Specific Intent vs. General Intent:

Specific Intent is when the mental state is set out in the definition of the crime=similar to elemental definition

General  Intent is when there is no specific mental state set out in the definition of the crime, so only need to prove social harm resulted w/ a morally blameworthy state of mind

-         Willful Blindness Problem

A deliberate ignorance-if the person believes there is a high prob. of a fact (attendant circumstance) and takes deliberate action to avoid confirming, or fails to investigate in order to avoid confirmation.

Generally, most states constitute knowingly as willful blindness, but some minority states require actual knowledge so “probably knew but chose to be blinded” does not meet the requirement and must prove actual knowledge to convict

-         Exception to MR: SL Crimes (not SL doctrine)

Generally, have smaller convictions/fines and courts will only enforce SL crimes if the legislature intended for the crime to be absent a MR, so Leg. Intent must be clear to enforce usually

Ex) Public Welfare Offenses= impure drug/food sales, and traffic/motor vehicle regulations

Ex) Statutory Rape- even if offender honestly and reasonably did not know the minor was underage=still guilty

Mens Rea- MPC 2.02[edit | edit source]

**Highly influential and used in many stated

4 Culpable States:

a. Purposely- Conscious Objective- was aware the attendant circumstances existed

b. Knowingly- Practically Certain-was aware the attendant circumstances existed

c. Recklessly- Conscious Risk Taking-A conscious disregard of a substantial risk- gross deviation from standard of conduct

d. Negligently- Should have been aware

Transferred intent does not exist in the MPC

MPC 2.02 (7)- agrees with the CL Majority on Willful Blindness= high probably of awareness is knowingly

Mistake of Fact CL/MPC 2.04

Mistake of Law CL/MPC 2.04[edit | edit source]

**Mistake Must be in good-faith

General Intent v Specific Intent Distinction:

General Intent- A reasonable objective measurement is used to compare the D against

If unreasonable mistake then guilty, but if mistake is reasonable then not guilty

Specific Intent- NO reasonable objective measurement is used to measure the D against; if the intent is required and it is lacking then not guilty

Steps[edit | edit source]

#1 First identify if General Intent Crime, or Specific Intent Crime

#2 Is the Mistake genuine?- If so, then employ above reasoning

MPC: NO General/Specific Intent Distinction- if mistake negates purpose, knowledge, reckless, or negligent culpability required to establish a material element of the crime then not guilty if the mistake was made in good-faith

*No reasonable requirement

Generally, not excused for committing a crime if relying on own erroneous reading/interpretation of the law, even if reasonable person or reasonable attorney would have similarly understood the same way


a. When an official assures a D that certain conduct is legally permissible and the D reasonably believes and relies on the advice

b. The statute is later declared invalid

c. A judicial decision later declared to be erroneous

MPC: Similar to CL

-         For mistake of law to be a defense the D must prove acted upon reasonable reliance on an official statement that afterwards was determined invalid, or erroneous. The D is not excused of liability simply by misconstruing the statute themselves, or by advice from an attorney or other non-designated official

Causation CL- the link between AR and MR[edit | edit source]

Causation MPC 2.03[edit | edit source]

Both types of causation must be proven

Factual/Actual- the “but-for” cause

a. Direct

b. Concurrent Sufficient (Substantial Factor)

=2 Ds act, both would have killed but together they also kill

=2 Ds act, neither individually would have killed but together they kill

c. Acceleration

=The result happened sooner because of Ds conduct, but must prove the result was accelerated and not that it could have possibly accelerated the result

Proximate (legal)

All are factual, but not all factual causes are proximate

When a D can be blameworthy w/o actually being the cause of the end result

a. Intervening Cause- ask if the chain of causation has been broken

-         Using the Objective Standard of Foreseeability

If the intervening cause was foreseeable then the chain of causation is NOT broken and the D is criminally liable

If NOT foreseeable then D is not liable because the chain has been broken

Responsive Intervening Cause vs Coincidental Intervening Cause-

Responsive I.C. is normally seen as reasonably foreseeable and does not break the chain

Ex) Medical Care, even if negligent medical care is given still considered foreseeable (ER DR has a cold)

Ex) Drowning after boat being hit by a neg. driver- even if the victim drowned because was drunk and could not swim to shore properly the D is responsible

Coincidental I.C. is not seen as foreseeable and breaks the chain because while D did put the victim in the situation, the I. C.  acted on the victim independently and coincidentally

Ex) Gross neg. medical care or a knife wielding maniac at the hospital BUT say the hospital was a high security penitentiary then can question if foreseeable

-         The Apparent Safety Doctrine

When a victim is safe, but then chooses to reenter a dangerous situation= the chain of causation is broken

Ex) Reentering the road to fix car after a drunk driver caused a crash. The victim was able to make it to the side of the road but chose to reenter

-         Voluntary Human Intervention

When the victim makes a choice that leads to the result then the chain of causation is broken

Ex) Choosing to sleep in the Cold after being forced out of the house from DV when could have slept at Father’s house

Ex) But limitations- if Victim commits suicide after Rape then not seen as breaking the causation chain

*Often assumed that D takes victim as is so if has a heart attack due to a heart condition as a result of Ds conduct then the causation chain is not broken

Questionable Ex) A religious person refusing to accept a blood transfusion- would the chain be broken? Some courts may disagree that D takes this religious person as D finds them because making a choice to not save life when capable of saving  

-         Intended Consequences

If D intended the result, but intervening cause(s) got in the way which still resulted in the intended result D originally wanted then D is still criminally liable

The MPC approach is not as definite as the CL approach to finding causation

Factual/Actual[edit | edit source]

Does employ a but-for test

BUT does not resort to sufficient factor test when there are multiple Ds.

Will instead ask if D1/D2 were the but-for cause of victims death

Proximate Cause- does NOT use a foreseeability test as the CL does- instead asks if D caused result w/ the level of culpability required for the offense (purposely, recklessly, knowingly, negligently)

BUT if the crime does not require a culpability ex) felony murder then will ask if the result was a probable consequence of the crime

Ex) Robbing a bank but bank teller being electrocuted by the silent alarm button

***MR/AR/Causation must all be proven to have come together at the same time for their to be a criminal conviction of a crime

Homicide Categories

CL[edit | edit source]

MPC 210.0
CL: 1st Degree Murder

MPC: “Murder”

**w/ Malice Aforethought

Premeditated/ Deliberated[edit | edit source]

-         Premed: quantity of time w/ thought

-         Delib.: quality of thought

Killing done after a period of time of prior consideration BUT no defined interval of time in Majority of Jrxs.

Just the thought to kill/Act of Killing happening simultaneously does not constitute Premed./Delib.- thought must be sometime before

**Minority Jrxs (Michigan) have defined a more meaningful standard for premed/delib

Evidence must be presented to support the premed/delib.- most often circumstantial:

a. want of provocation

b. conduct statements before/after

c. Threats/declarations before or during

d. ill will between parties

e. Brutal manner of killing

f. Nature and # of wounds to victim

**Prosecution must prove actual intent to kill not that the D should have known conduct would cause death

Intent to abuse does not constitute premed/delib. For murder when death results- BUT some states have allowed 1st deg. in cases of child abuse where the intent to abuse manifests an extreme indiff. to human life

210.2- Lays out 3 Diff. Theories for Murder:

1. Purposely/ Knowingly

= most similar to Premeditation and Deliberation found in the CL

(3rd is Felony Murder)

CL 2nd Degree Murder

MPC: “Murder”

CL 3 Theories:

1. Intention to cause great bodily harm, but death results

2. Default- Mitigates 1st degree, or move up Voluntary Manslaughter to 2nd degree

- If 1st degree fails for premed./delib.

- If manslaughter fails for lack of heat of passion or adequate provocation (cooling off time was present)

3. Depraved Heart (or malignant Heart)

-Have malice aforethought w/o premed/delib.

- Test to Find Malignant Heart:

1) The Killing is caused by an act w/ a base antisocial motive,

2) The natural consequences of which are dangerous to life,

3) The person performing the act knows their conduct endangers the life of others but acts w/ a conscious disregard

2. Extreme Recklessness Manifesting an Extreme indifference to Human Life= A Conscious Disregard of the Risks
CL: Voluntary Manslaughter

MPC: “Manslaughter”

**w/o malice aforethought

2 Elements:

1) Heat of Passion- absent “cooling off time”

-Jury normally decides if their was a cooling off time- in the past it was the judge who determined

2)Provocation- the provocation must be adequate to cause such a reaction- the reaction is not excused BUT is considered understandable  

*There must be a causal connection between the provocation, heat of passion, and the final act

-         Words Alone Rule:

Generally accepted that words alone are not adequate provocation

Minority of states (PA)- says informational words can be enough depending on the circumstance BUT mere insults are still not enough

If words are accompanied by conduct indicating present intention and ability to cause D severe bodily harm then can be enough

**Uses an Objective Standard- but argument against making wholly objective

210.3- Lays out 2 Diff. Theories of Manslaughter

1.  Regular Recklessness (not extreme because extreme falls under murder)

2. Extreme Mental Anguish or Mental/Emotional Disturbance

- Employs a combination of an objective standard and a subjective standard.

Requires that the circumstances are viewed as the D saw them but then use a reasonable person standard to ask if Ds reaction was reasonable to the events as D saw them

**NO cooling-off time

= recognizes that there can be a build up of emotions over time

= recognizes a more broad degree of circumstances which can allow for a mitigation to manslaughter

** Words Alone Rule does NOT apply!

CL: Involuntary Manslaughter

MPC: Negligent Homicide

1st Degree: Recklessness

2nd Degree: Gross Negligence (AKA crim. Negligence- NOT civil negligence)

Negligent Homicide is not conscious risk-taking, but should have known

(regular reckless is under manslaughter)

Limitations to the Felony Murder Rule: Usually convicts under 1st, but some states convict under 2nd or 3rd (Pa/Ca= 2nd)

FMR- SL for death resulting from Ds conduct when engaged in a felony. Does not matter if death was intentional, unintentional, negligent, or complete accident

Inherently Dangerous Felony[edit | edit source]

Merger Theory[edit | edit source]

Agency Approach[edit | edit source]

In the Abstract Rule:

Court looks at Elements of the Felony and NOT the facts of the case to determine if the felony is inherently dangerous to life

Will only apply FMR if the Felony is found to be inherently dangerous to life

Ex) of Inherently Dangerous to Life Felonies=Kidnapping, Arson, Shooting @ an inhabited dwelling

Ex) of NON-inherently Dangerous Felonies= Fraud, Grand Theft, Deceit

Applies when the Felony is not independent from the homicide

Certain crimes inherently have a felony built in – if engaged in a crime that is merged w/ a felony then can’t employ the felony murder rule to convict under 1st (or 2nd degree)

Ex) Assault w/ a deadly weapon is a felony, if a death results, can’t employ FMR to convict

Ex) of FMR applying because the Felony was indep. of the death= Armed Robbery, Kidnapping, Furnishing Narcotics

**Few States have abolished FMR= KY

Accomplice Liability allows multiple felons to be charged under the FMR when one co-felon commits a homicide during the perpetration of their crime

BUT if the homicide results from a 3rd person, non-felon, then the co-felon(s) are not liable under the FMR

**Unlawful Act Manslaughter Rule- Also V. Controversial

-         Allows a manslaughter conviction where a homicide resulted from criminal conduct that was not arising to a felony ( At CL has been used to extend to acts that were morally wrongful, but not criminal)


Justification- legal harm, but harm was outweighed by good

Self Defense Defense of Others Defense of Habitation Necessity
Elements to use SD (CL):

1)threat actual or apparent to use deadly force against the D

2)The threat must have been unlawful and immediate

3)D must have believed was in immediate peril of death or serious bodily harm and that the use of deadly force was necessary to save himself

4)Beliefs must have been honestly entertained and also objectively reasonable in the light of the circumstances(requires looking at circumstances as D believed them to be, BUT not wholly subjective!)

-Imperfect Justification=used in some states to mitigate to manslaughter when SD was found to be unrsb, but D genuinely believed that the threat was imminent and deadly

In addition:

-The D must not be the aggressor/provoker (Even if the adversary made the first blow/shot/threatening gesture, the D cannot use SD defense if the original aggressor)- if D is aggressor, must communicate to advisory intent to withdraw and demonstrate a good-faith attempt to do so

-Also, the force used must be proportional to the force seeking to protect from= nondeadly force must not be met w/ deadly force (if nondeadly force escalates to deadly force then can use deadly force to protect)

-Retreat to the wall must be demonstrated (unless SYGLs apply), unless the retreat is not conducive to safety then Ds do not have to elect a safe retreat rather than use deadly force

-Castle Doc. Allows no retreat from home or curtilage- if at fault for being the aggressor castle doc does not excuse such

SYG Laws expand Castle Doc to anyplace person has right to be including public areas

If a person comes to the aid of another acting on a reasonable belief then the defense of another can be applicable even if the other party actually has no right to SD- use to not be this was. If a D acted w/o the other actually having the right to SD then D would be liable, but has since changed Broad Minority Approach

Minority allows for use of deadly force for any unlawful invasion of the home

Middle Approach

Allows force to prevent an intruder from entering when intending to commit a felony therein

Narrow Approach[edit | edit source]

Allows force to prevent an intruder when intending to commit a violent felony therein  

** Used to protect from Entry- once enters can use SD defense

**The D does not have to officially live there- residing with the permission of the owner

4 Elements to use Necessity (CL):

1) The act must have been done to prevent a significant evil

2)There is no adequate alternative

3)The harm to be avoided must be immediate and dire and greater than the harm of breaking the law

4)Reasonably anticipated a direct causal relationship between conduct and harm to be avoided

**why civil disobedience generally fails in being able to use Necessity Defense

In addition:

-Does not include homicide situations

-Looses the defense if created the harm

-Usually applies in cases of Natural Forces

And sometimes physical harms to person or property  

MPC 3.02[edit | edit source]

More broad!

-Rejects immanency requirement

-Allowed as defense in Homicide situations= utilitarian approach

-Do not necessarily

loose defense if created the harm but if reckless or negligent than can be prosecuted for that recklessness or neg.

**PA SYG law requires the aggressor be armed and the D must not have been engaged in criminal activity (unlike in FL)

**BWS- not generally accepted as a justification to use SD, but some states have recognized the psychology behind abused women who have undergone the abuse cycle just once- abuse victims are always in fear of imminent harm , or a state of imminent threat. Other states require that the threat be imminent to allow SD in abused women cases

Excuses- legal harm, but the actor is not responsible because of disease or defect[edit | edit source]

Duress  (MR is still present-not negated-but just not willful)[edit | edit source]

Intoxication[edit | edit source]

3 Elements:

1)Immediate threat of death or seriously body injury

2)Well grounded fear that threat will be carried out

3) No reasonable opportunity to escape the threatened harm

In addition:

-Not allowed for Homicide defense

-If at fault for being in coercive situation then defense is not allowed

MPC 2.09:

Uses language of “person with reasonable firmness would not be able to resist”

Also adheres to the person not being able to use if in the situation at their own fault

Does allow as a defense to committing homicide – NY and TX has adopted

Normally Courts are NOT Receptive!!

CL: Allowed in specific intent crimes, but not general intent crimes, if too intoxicated to form the required MR of the crime. Just because can be permissible does not mean courts will accept. = A failure to prove defense

Involuntary Intoxication is more receptive by courts. 1)Coercion, 2)pathological, 3)innocent mistake, 4) Prescribed medication having unintended effects

MPC 2.08[edit | edit source]

-Does NOT adhere to specific intent/general intent distinction- if the intoxication negates an element of the offense then can apply

-States that pathological intoxication and not self-induced intoxication can be affirmative defenses where the D can be found non-criminally responsible

Will not allow intoxication to be an excuse for reckless behavior even if the D would have been aware of the risk sober but was not intoxicated. Neg. harm will be treated as recklessly caused

Insanity Defense  [edit | edit source]

M’Naghten Test- Majority (28 states apply test or version of) Irresistible Impulse Test-Supplement (doesn’t exist in isolation from M’Naghten) Durham Rule/Product Test- NH Still Uses
Focuses on Cognition and NOT Volition  

The Test is Absolute-Mental illness must completely overcome the mind


1) At the time of the act, 2) The accused was laboring under such a mental defect of reasoning from disease of the mind that 3) (a)D did NOT know the nature and quality of the act he was doing, OR b)if did know, did NOT know what he was doing was wrong

Allows Courts to focus on Volition too

Still an Absolute Overmastering of the mind though


1)A mental disease that makes D unable to distinguish right from wrong OR 2) The complete overmastering of the D’s will by a mental defect under the control of which he acts

Problem- Experts became the final authority and were defining “product” case by case


An accused was not criminally held responsible if unlawful act was a product of the mental disease or defect

MPC 4.01(14 states adopt):

**Seen as a “softer standard” than M’Naghten, but allows medical expert influence like in Durham but w/o the expert’s authority overwhelming the case  

Uses language of “lacks substantial capacity to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law”

*AT CL, and MPC, anti-social behavior is not included

Attempt (1/3 Inchoate Crimes)

To convict for an attempted crime, the D must have been in the zone of perpetration. There is a concern of punishing just thoughts if making the perpetration line too close to the preparation line. If officials step in to deter a crime, and the D has not crossed into perpetration yet then will not be able to convict.

Punishing for Attempt is to deter the individual (Specific Deterrence), and to Generally Deter the other members of society

Now can punish attempt w/ the same severity as actual completion of the crime

Attempt (CL): MPC 5.01:
Dual MR

1) Actor’s conduct must be intentional (Actor intended to commit the acts that constitute the AR).

2)Specific Intent of the Crime is Present (The target crime being attempted)

Ex) If D intends to severely injure V, but does not actually end up killing V, then D is not guilty of attempted murder (even though if D had killed V would be guilty of murder in 2nd degree)

Ex) Pulling the trigger of a gun would satisfy 1, but if not intending to shoot a person, but do, then not charged w/ attempted murder


-Does not Apply in Attempted murder (FL is major minoity)

The idea is that FMR is a SL crime where the MR is not needing to be proven- so can’t charge for attempted FM when the specific intent of murder must be found to convict under attempt


1a and 1b deals with completed crimes whereas 1c discusses non-completed crimes and uses the language of “substantial step” Section 2 gives examples of what a substantial step would be. The substantial step is the AR of the provision.

Test: The Substantial Step Test- puts the line of perpetration closest to the line of preparation when comparing to the 5 CL tests  

2 Elements of Attempt:

1) Purpose to commit the target offense=guilty if believes the results will occur, even if not conscious objective ex) bomb on airplane intending to kill husband but the bomb does not go off- would be guilty of attempted murder for husband and the rest of the passengers (at CL uncertain whether attempt at killing other passengers constitutes an attempt)

2) Conduct constituting a substantial step toward the commission of the target offense  - Section 2 gives examples of substantial step

Steps in using the test:

1) Does this case involve a complete or incomplete attempt?

2) If completed then look at 1a, conduct crime, and 1b, result crime. If not completed then look at 1c.

The Tests (CL): Defining Perpetration of Attempt

Res Ipsa loquitur (Unequivocality) Probable Desistance Test Indispensable Element Dangerous Proximity Physical Proximity
Silent Movie Test

To find attempt, the action must be equivocal to the crime attempting to commit.

Look at the conduct, if the conduct the actor is engaged in  unambiguously  manifest a criminal intent then have attempt

Ex) People v Miller- guy in the field with the shot gun-but does not point it and walks toward the constable

Focuses on how far the D has already proceeded (the 3 on the left focus on how close the actor’s conduct is to the final completion of the act)-Finds attempt when it is unlikely that the actor will voluntarily desist from effort to commit the crime MUST be voluntary and not due to an interruption from an outside source

Ex) Luring an underage person over for sexual relations and meeting them at the cab outside

Ex) Altering a script for extra refills not entitled to= no attempt because doubt about whether D will actually return to pick up refill and then return again for the refill not entitled to

To find attempt, the actor must have acquired control of the indispensable element of the crime- must possess an instrumentality of the crime to be in perpetration

Ex) Possessing a gun to kill; OR manufacturing equipment to make illegal drugs

*Problem- The absence of an indispensable element says nothing of the actor’s culpability or intentions

Attempt arises when conduct is in dangerous proximity of success, or when the act is so near to the result that the danger of success is great

Look at:

1) nearness of danger, 2) greatness of harm and 3)degree of apprehension felt

Ex) People v Rizzo- the person intending to rob was not in sight, so not within dangerous proximity

Ex) Drug dealer orders cocaine, but rejects on quality of goods= found guilty of attempt

Ex) Drug dealer informs carrier that will purchase the drugs, but sets up date in future for the exchange to secure the funds=no attempt

The conduct must be proximate to the completed crime.

Attempt arises when the actor has it within their power to complete the crime almost immediately

Ex) Weapon in hand and victim in view

Defenses to Attempt: Impossibility (3 @ CL)

Pure Legal Impossibility Factual Impossibility Hybrid Legal Impossibility
When D thinks committing a crime, but is actually not a crime Ex) Statutory rape where the limit is 15, but the D thinks it is 16 and then has sexual relations with a 15 year old.

MPC 5.01 only allows Pure legal impossibility as a defense

-         1a states: “circumstances as D believed them to be”= abolished factual and hybrid impossibility defense

Ex) If D thought he was bribing a juror then for all intensive purposes he was

-1c is for incomplete crimes: Requires that Ds conduct be strongly corroborative Ex) If points gun at V who is actually already dead but the officer intervenes then attempt is considered incomplete even though could never actually reach the goal of killing V

Often will read factual possibility is not a defense, but it can be-just rare for it to be accepted by courts

Ex) Pulling a trigger, but the gun was not loaded, but thought the gun was loaded

Ex) Pick Pocketing a pocket that was empty  


Mistake about a legal status

Ex) Shooting a stuffed deer thinking that it is a real deer during hunting off-season

Ex) Bribing a juror that is not a juror

Ex) Shoots a tree stump believing it to be human

Ex) Shoots V laying there, but V is already dead  

Ex) Receives non-stolen property believing it to be stolen


Solicitation (Also an Inchoate Crime)

Solicitation @ CL- Asking Another to do the crime for them MPC 5.02
Soliciting Party-Conceives the crime and then persuades other(s) to do it for them Ex) hiring a hit man to off someone

AR: The Asking (AKA inviting/requesting/commanding/hiring)

**Solicitation is NOT an attempt to use the other as an innocent instrumentality

MR: Dual MR (Again- all inchoate crimes have dual MR)

1) The intent to perform the act that constitutes the solicitation (The intent to ask/invite)

2) The Specific Intent that the other person commit the solicited offense

Ex) Asking someone to pickpocket knowing the pocket is empty- the other could be found guilty of attempt but the solicitor did not have the intent of the other person actually committing that crime, BUT if also was unaware the pocket was empty then found guilty of solicitation because had intent for the other to pickpocket

**The actual communication MUST BE RECEIVED- the other must receive the letter or the email

**If inquires, but the other says no then can still be charged with solicitation, or if the other says yes but has no intent of actually committing the crime (undercover police officer example)


If the crime actually happens then solicitation merges with the crime- cannot have a solicitation charge and a charge of the substantive crime

Also merges with the attempt, if the actual crime is not completed to the end goal by the perpetrator but was completed unsuccessfully- so solicitation cannot exist with attempt as sep. charges

Solicitation merges with Conspiracy

IS A CL Misdemeanor- regardless of the grade of the offense solicited- Even states that have adopted the MPC into their statutes still treat Solicitation as a lesser offense than the actual committing of what was asked

Section 1:

More broad definition- “A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages, or requests another person to engage in specific conduct that would constitute such crime or an attempt to commit such crime…”

so 1) the actor’s purpose is to promote or facilitate the commission of a substantive offense, and 2) with such purpose commands, encourages, requests, etc.

D can be found guilty of a solicitation of an attempt

Ex) Asking someone to pickpocket knowing the pocket is empty- the other could be found guilty of attempt but the solicitor would be found guilty of soliciting an attempted larceny- unlike in the CL where the solicitor would not be liable at all

D can be found guilty of solicitation even if requesting that the other furnishes him a weapon- at CL not a solicitation because did not ask the other to kill for him with that weapon

**The actual communication DOES NOT have to be received-the asking is enough even if the person does not receive the letter or the email

**If inquires, but the other says no then can still be charged with solicitation


If the crime actually happens then solicitation merges with the crime- cannot have a solicitation charge and a charge of the substantive crime

Same as CL

MPC Grades solicitation at the same level of the target crime- unlike the CL which grades it as a lesser offense


Conspiracy (CL) – Fills the gap in attempt if more than one person is involved MPC: 5.03
**Known as the Prosecutor’s Darling= procedural (Joinder advantage) and evidentiary advantages (Hearsay advantage)

Also, a vague crime is to the prosecutor’s advantage because easier to prove when less evidence is needed

*Can be dangerous, historically speaking has been used to punished those with “unfavorable” opinions

AR: The agreement

Only need a tacit mutual understanding to accomplish the unlawful act between conspirators- can be nod/wink/handshake (evidence of mere association should not be enough for conspiracy—Azim Case)

If prove 4 criteria then can show there was an agreement: 1) Association; 2)Knowledge; 3)Presence; 4) Participation

*BUT in agreeing- must be aware of the objective of the conspiracy!

MR: Dual (All inchoate crimes)

1) Intent to agree (intent to commit the AR)

2) Intent to accomplish object of the conspiracy

Ex) Swain Case- did not find the 2nd MR because was charged with 2nd degree murder for an unintentional killing- must have intent to murder to find all the required MR and if unintentional killing then no specific intent to kill

MR Required for a person providing a legal service in an unlawful manner (Lauria Case)

1) Knowledge of the illegal use of the good or service and 2) The intent to further the illegal purpose must be present in order to make a supplier a participant in criminal conspiracy  

-If lacking direct evidence of intent to further then can rely on circumstantial evidence and look at 1) stake in the venture; 2) legitimate use of the good; 3) volume- is amt disproportionate to the good if sold legally?

**Can only infer intent from knowledge if the crime is very severe

Some jurisdictions require an overt act expanding just the agreement, but this is a very low bar and is not ever really an issue- even if statutorily designated

Merger-Does Not Merge with the substantive crime- it is its own separate criminal offense whether or not the underlying crime was accomplished or not  

Does not merge with the attempted crime either!

Under Conspiracy, can hold the co-conspirator accountable for the completed crime of the other co-conspirator, if the crimes further the conspiracy, even if the first co-conspirator did not engage in the acts at all (Pinkerton Case- Daniel was in Prison at the time of the acts of Walter so ws not actually responsible for the substantive crime- Dissent stated setting dangerous precedent)

Accomplices are usually Conspirators BUT NOT ALWAYS- there must be an agreement to find conspiracy (Cook Case- Brother was an accomplice but not a conspirator because no agreement was thought to be established before when looking at the evidence)

AT CL, Bilateral Rule- Conspiracy requires an exchange: 2 or more people agree, so have to have 2 or more people charged  (Common before 1961)- can still charge solicitation but not agreement

Unilateral Rule has been adopted in some state statutes in light of the MPC- allowed to charge conspiracy to just one person. Important when the other “conspirator” is actually an undercover cop

Most States no longer grade Conspiracy as a lesser crime or misdemeanor- now generally punish equally with the crime- will punish as a misdemeanor if the conspiracy was to commit a misdemeanor

MR: “W/ the purpose of promoting or facilitating” =object of the agreement was to bring abt the prohibited result

Subsection 1- Guilty of conspiracy for 4 types of agreements:

Agrees too…

1) commit an offense = engages in conduct that constitutes such crime

2) attempt to commit an offense

3) Solicit another to commit an offense

4) Aid another in the planning or commission of the offense

The object of the agreement must be a criminal act- and just a legal act in an unlawful way

Merges w/ the underlying crime if underlying crime takes place- does not merge at CL though

But if the conspiracy involved completion of additional offenses then conspiracy will not merge with the crime committed- ONLY merges with the substantive crime

Ex) If arrested before the completion of the crime then conspiracy does not merge- Ex) Plan to rob V1 and V2, but arrested after V1 is robbed but before V2 is robbed then the robbery will NOT merge with conspiracy  

Subsection 7(c): defendant must either (1) advise his co-conspirators that he abandons the criminal purpose of the conspiracy or (2) inform law enforcement of the existence of the conspiracy and his participation in it.


MPC- does not follow Pinkerton Rule- not accountable for conduct of others sole because of the conspiracy between them

MPC Follows the Unilateral Rule! Do NOT need 2+ conspirators to charge conspiracy to D

Accomplice Liability

Accomplice Liability (CL)-Derivative Liability MPC 2.06
AR: The act is the assistance- so under CL must actually assist not just try to assist

*Mere presence is not enough- even if accompanying the perp. And then also flee- must aid/abet/ assist in some way  

– Can’t be an Accomplice by Omission- must have requisite intent

If have a duty and failed to act then could be considered an accomplice (Police man not acting when a robbery happens)

MR: (Dual MR Again):

1) Must have intent to assist the P1

2) Mus have intent that the crime also succeeds

*P2 must share same intent at P1 to be found guilty under accomplice liability.

* Knowing is enough if actually assisting- makes up for the lack of purposely

P2 does not have to be directly present though- can be considered constructively present (On street or outside of door)

Accessory Before the Fact- Falls under accomplice liability

Ex) One who furnishes the fake license plate

Accessory After the Fact is no longer considered under accomplice liability- instead charged a separate offense as obstruction of justice or hindering apprehension- not derivative liability any longer at CL or the MPC

Foreseeable Consequence Rule Exits under CL: Allows accomplice liability even if the P2 does not have the culpable mental state

If a person encouraged/aided/abetted the commission of a crime then held liable for not just that crime but also the foreseeable consequences of that crime aided and abetted

Liscott Case- Found to be liable for murder under an accomplice theory because murder was natural consequence of such a robbery – even though did not have the intent to have such a result  

Corroboration Rule- where the testimony of accomplices is treated with caution and there must be other evidence which connects the D to the crime outside of the accomplice testimony

**Many States Have  

Under the CL, the accomplice does not have to be the but-for cause- derivative liability= the P1 just has to be the but-for cause

*It is enough that the accomplice just made it easier  

MPC- just requires the attempt to assist- does not actually need to assist  

Section 4-

Under the MPC, for a result crime the P2 must have the “kind of culpability, if any, with respect to the result that is sufficient for the commission of the offense” Foreseeable Consequence Rule Does NOT exist  

Section 3-

“W/ the purpose of promoting or facilitating the offense”  

A(2)- says attempt to aid=does not have to actually aid

Section 2- Liability for Conduct of Another

Deals with the issue of using another to commit an offense  (Bailey case- acted as the puppet master)

Uses an unwitting agent to do bidding= directly liable opposed to accomplice liability