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CRIMINAL LAW

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1. Procedural Aspects: • "Reasonable doubt leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge." • The object of civil proceedings is rectification, but punishment is the object of criminal proceedings. • "Components of the legality principle: (1) the requirement of fair warning, (2) the prohibition of ex post facto applications of law, and the practice of strict construction of criminal statutes." • "About 90% of criminal cases do not go to trial but are resolved by guilty pleas. Of those, the majority are the result of plea bargaining." 2. Perspectives on Criminal Law: • "The approach called 'critical theory' argues that all legal determinations are, in analogous ways, political." • "Positive morality is defined by the moral preferences of the majority."
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CRIMINAL LAW

1. Procedural Aspects:
• “Reasonable doubt leaves the minds of the jurors in that condition that they cannot say they feel an
abiding conviction, to a moral certainty, of the truth of the charge.”
• The object of civil proceedings is rectification, but punishment is the object of criminal proceedings.
• “Components of the legality principle: (1) the requirement of fair warning, (2) the prohibition of ex post
facto applications of law, and the practice of strict construction of criminal statutes.”
• “About 90% of criminal cases do not go to trial but are resolved by guilty pleas. Of those, the majority
are the result of plea bargaining.”
2. Perspectives on Criminal Law:
• “The approach called ‘critical theory’ argues that all legal determinations are, in analogous ways,
political.”
• “Positive morality is defined by the moral preferences of the majority.”

ACTUS REAS

1. Voluntary Acts:
• MPC and common law are same in regards to actus reas: involuntary acts aren’t sufficient, nor are
thoughts.
• MPC says that “a person is not guilty of an offense unless his liability is based on conduct which
includes a voluntary act or the omission to perform an act of which he is physically capable.”
Not voluntary acts under MPC: reflexes, convulsions, movements while asleep or unconscious,
conduct during hypnosis or resulting therefrom, and other movements not resulting from effort or
determination (either conscious or habitual).
2. Omissions:
• Criminal liability may be based on an omission if ∆ had a legal duty to act based upon any of the
following: (a) statutes, (b) relationship, (c) contracts, (d) assumption of care, (e) status as landowner, (f)
duty to control third parties such as children or employees, or (g) ∆ created the peril.
• If you commence to rescue someone and preclude others from helping, you’re subject to criminal
liability.
• MPC: in order to be liable for an omission, the law must impute a duty to act.
3. Possession:
• MPC says possession is an act if possessor knowingly procured or received thing possessed or was
aware of his control for a sufficient period to have been able to terminate his possession.
• Does not require proof that ∆ was physically in possession of item; prosecution can make out a case of
constructive possession if ∆ exercised control over item.
• You have constructive possession of illegal substance if you knowingly are in a position to, or have the
right to, exercise control and control over item and can guide its destiny. Right to exercise dominion
and control can be jointly shared.
• Knowledge alone doesn’t constitute possession.

Just because you know something is there doesn’t mean you constructively possess it.
4. Status Crimes:
• Status crimes don’t require commission of a specific act; prosecution only has to show that offender fits
within a certain class of people. Offender can be charged at any time, regardless of acts he may or may
not have committed.
• You can’t make a disease an act.
• Unconstitutional.

MENS REA

Criminal Law (1)

• Generally there is a mens rea that accompanies all crimes; to find the mens rea requirement for a crime you
should read the statute or discover common law rule for the jurisdiction.
• Criminal law is generally unwilling to impose liability by transferring intent from one crime to another;
however, transferred intent does apply in cases of felony murder and misdemeanor manslaughter and from
one victim to another.
• Levels of Culpability:

At Common Law:


General Intent: just intend to do the act; the act itself is enough.
Specific Intent: intentionally perform an act with extra-special intent of doing something in
addition.



Most common/statutory law crimes are specific intent crimes.
Extra-special mental state may pertain to (a) intent to commit another act in the future, (b) a
special motive or purpose for commission of crime, or (c) an awareness of special attendant
circumstances surrounding criminal act.

Under the MPC:


Vastly simplifies common law of mens rea; there’s no reference to specific and general intent.


Requirements:



Purpose: you purpose the end result.
Knowledge: know with substantial or practical certainty a thing will occur and you act anyway.
• If you are aware of a high probability that a fact exists but you deliberately avoid finding out
then you are guilty, unless you really believed that the fact didn’t exist.



Recklessness: conscious disregard for a substantial and unjustifiable risk.
Negligence: If a reasonable person should have known that they were taking a substantial and
unjustifiable risk; negligence is recklessness minus consciousness of the risk.

• Different from recklessness in that ∆ was not conscious of the risk, but should have been.
• Baseline for negligence is context as actor perceived it; it involves a subjective inquiry
(inferences that should’ve been drawn from what actor knew).
• Factors to be considered in measuring degree of negligence: (1) ∆’s role in creating risk, (2)
proximity of ultimate harm in relation to ∆’s acts, and (3) extent to which immediate harm
was predictable and apparent.

DEFENSES

• Good motive by itself is not a defense, and it normally does not negate mens rea.
• MPC doesn’t distinguish between mistakes of fact and law, providing that either gives rise to a defense if it
negatives purpose, knowledge, belief, recklessness, or negligence required for the crime.
Most crimes don’t require proof that ∆ was aware of the law; a mistake of law will rarely negate the
mens rea required.


Statute Requires
Statute Requires
Specific Intent
General Intent
Reasonable
Mistake of Law
Exonerates
Guilty
Unreasonable Mistake of Law
Exonerates
Guilty
Reasonable
Mistake of Fact
Exonerates Exonerates
Unreasonable Mistake of Fact
Exonerates
Guilty

1. Mistake of Fact:

• Is a defense if it negates the required mens rea.
• Honest mistake of fact, though unreasonable, exonerates statutory requirement of purpose or knowledge.
Criminal Law (2)

• Any mistake of fact, reasonable or unreasonable, exonerates requirement of recklessness, unless you
were reckless in forming the belief, then it doesn’t exonerate; if your mistake of fact was due to your
own recklessness then it’s not a valid defense.
• Any reasonable mistake of fact exonerates statutory requirement of negligence.
In jurisdictions that separate offenses into specific intent and general intent crimes, a mistake of fact
must be both honest and reasonable in order to afford a defense to a general intent crime; even an
unreasonable mistake of fact is a defense to a specific intent crime so long as it was sincere.
Ignorance or mistake of fact constitutes a defense if it negatives purpose, knowledge, belief,
recklessness, or negligence required to establish material element of offense.
2. Mistake of Law:
• Except for following four limited exceptions, ignorance of law is no excuse: (1) law is not published,
(2) reasonable reliance on statute that is now invalid, (3) reasonable reliance on a court decision, or (4)
reasonable reliance on a public official who is charged with interpreting regulation or law.

Must negate the mens rea required by statute.
3. Intoxication:
• Common law: Voluntary intoxication isn’t a defense to a general intent crime; involuntary intoxication
is a defense to both specific and general intent crimes.
• MPC: like common law, refuses to recognize voluntary intoxication as a defense unless it negates an
element of the offense.

Can negate a mens rea of purpose or knowledge, it cannot negate recklessness.

PUBLIC WELFARE CRIMES, STRICT LIABILITY, & VICARIOUS LIABILITY

• MPC strongly objects to strict liability crimes, but allows for strict liability violations which don’t carry
either potential for prison sentence or stigma of criminal conviction.
• If mens rea doesn’t exist in statute, then courts have option of reading one into statute or otherwise saying
that no mens rea is needed but that the statute entails strict liability. Look at the penalties involved: if
imprisonment is part of the fine, then courts usually rule against strict liability.
• Imprisonment for vicarious liability is generally not sanctioned.

Vicarious liability, unlike strict liability, is relatively rare.
Vicarious liability dispenses both with mens rea requirement and with requirement that each ∆
personally committed a voluntary act.
• Strict liability public welfare crimes require no mens rea and don’t allow a defense for even a reasonable
mistake of fact. Strict liability crimes generally relate to public health and safety regulations; they normally
don’t lead to long jail sentences or large fines.
• Strict liability is justified as a means of allowing prosecutors to punish the negligent or reckless where
actual proof of culpability would be difficult; the truly innocent will be spared by prosecutorial discretion.

HOMICIDE

• Common-law Murder: unlawful killing of another human being with malice aforethought
Types of common-law murder:


Intent to kill murder (awareness that death would result);


Intent to inflict serious bodily injury murder;



MPC doesn’t recognize this as a separate form of murder.


Depraved heart murder: grossly reckless conduct that leads to death of another; and


Felony murder: kill someone while committing another felony.
• MPC Murder: homicide must be (1) committed purposely or knowingly, or (2) committed recklessly under
circumstances manifesting extreme indifference to value of human life.
Criminal Law (3)

Such recklessness and indifference are presumed if actor is engaged in (or an accomplice in, or attempts
to, or flights from) attempt or commission of (a) robbery, (b) rape or deviate sex by force or threat, (c)
arson, (d) burglary, (e) kidnapping, or (f) felonious escape.
Drafters of MPC were critical of view that premeditated killers generally tend to be more culpable than
spontaneous or impulsive killers.
MPC doesn’t recognize degrees of murder.
1. Intentional Homicide:
A.
First-Degree vs. Second Degree Murder


• Premeditation is the determining feature.
• Specific intent to kill which is necessary for murder in first degree may be found from ∆’s words or
conduct or from attendant circumstances together with all reasonable inferences therefrom, and may
be inferred from intentional use of a deadly weapon on a vital part of the body of another person.
• Law fixes no length of time as necessary to form the intention to kill but leaves the existence of a
fully formed intent as a fact to be determined by jury from all facts and circumstances of evidence.
• First-degree murder is established by (according to Pennsylvania Statute):

i. poisoning or lying in wait;

ii. premeditation; or purpose, willfulness, or deliberation;
iii. committed while perpetrating or attempting to perpetrate: (a) arson, (b) rape, (c) robbery, (d)
burglary, or (e) kidnapping.
Murder in any of these three manners constitutes “malice aforethought.”



For first-degree murder, you have to intend to kill, not just injure.
B.
Voluntary Manslaughter: Heat of Passion:


• A felony of the second-degree.


• To get a jury instruction for voluntary manslaughter instead of murder, you need to prove:



i. a reasonable person would’ve been adequately provoked under the circumstances;
ii.
killing
was
done
under heat of passion; and



iii. there was no sufficient time to cool-off.


• A jury can only make a judgment within the bounds of the court’s instructions to them.


• Common-law Manslaughter:
Events sufficient to provoke a reasonable person: (a) serious assault or battery; (b) witnessing
wife committing adultery; (c) mutual combat; (d) unlawful arrest; (e) commission of a crime
against a close relative.
Under common law, words could never be enough.


• MPC Manslaughter:



Homicide is manslaughter when:
i. it
is
committed
recklessly;
or
ii. a homicide which would otherwise be murder is committed under influence of extreme
mental or emotional disturbance for which there’s a reasonable explanation or excuse.
Reasonableness of explanation or excuse is determined from viewpoint of person in
actor’s shoes under the circumstances as actor believed them to be.
2. Unintentional Homicide: Second-Degree Murder (Depraved Heat / Extreme Indifference):
• MPC: Homicide is negligent homicide when it is committed negligently; it’s a felony of the third-
degree.
• Depraved heart murder doesn’t reach degree of gross negligence so as to be charged with a higher
degree of murder. To determine between second-degree murder and voluntary manslaughter, ask
yourself: Is it reckless or is it grossly reckless?
3. Felony Murder:
• Drafters of MPC would’ve preferred to abandon common-law doctrine of felony murder, but such a
course was thought to be impolitic, given weight of prosecutive opposition.
• When death occurs (intentionally or accidentally) during course of felony (e.g., cashier has heart attack).
Criminal Law (4)

• An absolute-liability crime because actor didn’t need to contemplate or consciously risk victim’s death.
• Purpose: (1) deter felony, or (2) deter accidental/negligent killings which may occur in course of felony.
• Limitations on Felony Murder Doctrine:

Inherently Dangerous Felonies:
Some states restrict felony murder charges to certain types of defenses which are considered to
be inherently dangerous.
Most states consider felony to be inherently dangerous if it is either (a) inherently dangerous
in the abstract, or (b) was committed in an inherently dangerous fashion.

Agency Doctrine:


Followed by a majority of jurisdictions.
Under agency theory, felony murder doesn’t extend to a killing, although a result of a felony, if
it’s directly attributable to act of another other than ∆ or of those associated with him in an
unlawful endeavor.
No liability under agency theory when homicide is committed by person resisting the felony.
Most courts agree that felony murder doctrine applies even when victim is a co-felon.

ROBBERY

• An aggravated form of larceny. Robbery is larceny plus other stuff.
Larceny is tresspassory or wrongful taking and carrying away of property of another with intent to
permanently deprive person of that property.
• Most jurisdictions agree that administration of drugs or intoxicating liquors so as to make victim helpless
constitutes constructive force sufficient for robbery.
• Common-law Robbery: larceny + taking of property of another by force or fear of immediate force + taken
from person’s immediate presence.
Robbery is a specific intent crime: You have to (a) have a wrongful taking and carrying away of the
property of another, with (b) the intent to permanently deprive them of their property.

You have to perform the specific intent at the moment of the taking, and not afterwards.
• MPC Robbery: guilty of robbery if, in the course of a theft:

i. inflicts serious bodily injury upon another;

ii. threatens another with or purposely puts him in fear of immediate serious bodily injury; or

iii. commits or threatens immediately to commit any felony of first or second degree.

An act occurred in the course of a theft if it occurs in an attempt to commit theft or flight thereafter.
In most jurisdictions, fact that victim was frightened is sufficient evidence of fear required for robbery,
even if an ordinary person wouldn’t have been frightened under the circumstances.

Fear doesn’t necessarily mean “fright,” but more like “apprehension.”
Threat of immediate force directed at a third person can also suffice.
• MPC vs. Common-law:

MPC doesn’t require “immediate presence.”
Common-law robbery requires you to use force at the time of the taking, but not afterwards, but MPC
says that force during escape is sufficient.
• Many jurisdictions consider armed robbery to be first-degree robbery, and simple robbery to be second-
degree robbery.
∆ may be guilty of armed robbery even though weapon was concealed during robbery and was never
brought to victim’s attention.
MPC rejects distinctions based on whether robber was armed with a deadly weapon, but instead elevates
robbery to a first-degree felony if, in the course of the theft, the actor attempts to kill someone, or
purposefully inflicts or attempts to inflict serious bodily injury.
• MPC considers a “claim of right’ a defense to robbery. Under this rule, a ∆ who uses force to collect
payment for what he honestly believes is a debt owed to him is not guilty of robbery.
Criminal Law (5)


BURGLARY

• Burglary is “an entry which invades a possessory right in a building, and it must be committed by a person
who has no right to be in the building. You can’t burglarize your own residence.
• An entry occurs as soon as any part of ∆’s body is within the structure.
• Whatever mens rea is required, it must exist at time of entry (and at time of breaking where still required).
• Common-law Burglary:
i. breaking
and
entering

ii. the dwelling house of another person

iii. in the nighttime

iv. with the intent to commit a felony.
• MPC Burglary:

i. entry of building or structure
ii. with purpose to commit a crime therein (unless premises are open to the public at the time or the actor is
licensed or privileged to enter).
It is a defense if the building or structure was abandoned.

ATTEMPT

• Inchoate crimes: incomplete crimes, crimes that have not caused harmful results.
• Mens rea is purpose.
• Criminal attempt requires (a) an intent to do an act or cause a result which constitutes a crime, and (b) an act
that goes beyond mere preparation.
• Legal impossibility is when your attempt just isn’t a crime (e.g., singing in the rain).
• Common-law Attempt:
Specific intent crime; have to intend result (e.g., if didn’t intend everyone on train you blew up died, that
was a defense).
MPC says that you’re guilty if you know something will happen, even if it’s wasn’t your purpose.
• MPC Attempt: must act with kind of culpability required and:
i. purposely engage in conduct which would constitute the crime if attendant circumstances were as you
believed them to be; or
ii. does or omits to do anything with purpose of causing (or with belief that it will cause) a particular result,
which is an element of the crime, without further conduct on his part; or
iii. purposely does or omits to do anything which, under the circumstances as actor believes them to be, is
an act or omission constituting a substantial step in a course of conduct planned to culminate in
commission of the crime.

A substantial step must be strongly corroborative of actor’s criminal purpose.
Conduct which may be held to be a “substantial step”: (a) lying in wait; (b) enticing victim to go to place
for commission of crime; (c) “casing the joint”; (d) unlawful entry of structure to commit crime; (e)
possession of materials for crime; (g) soliciting an innocent agent to engage in conduct constituting an
element of the crime.
• Abandonment of Attempt:
Common-law Abandonment: at common law you cannot abandon an attempt; you’re guilty either way
once you’re physically or dangerously close.
MPC Abandonment: allows voluntary abandonment in order to induce criminals to give up their plans.
The MPC allows you to abandon a crime anytime before you pull the trigger.

You can’t voluntary abandon a crime if it’s already been completed.
Abandonment isn’t voluntary if ∆ abandons the attempt because of unanticipated difficulties,
unexpected resistance, or circumstances which increase the probability of detection or apprehension;
Criminal Law (6)

nor is abandonment voluntary if ∆ fails to consummate offense after deciding to postpone the
conduct or to substitute another victim or another but similar objective.
Unlike at common law where you can abandon an attempt anytime up until you’re physically or
dangerously close to committing the crime, under the MPC you can be prosecuted once you have
made a substantial step towards committing the crime.
The MPC punishes the guilty mindset, despite the actuality of the offense.

SOLICITATION

• Solicitation has two elements: (1) encouraging or advising another to commit a crime, (2) with the intent
that the other person commits the acts constituting the crime.
• Solicitation does not require that solicited person actually commit the solicited crime; charges are usually
brought only when solicited crime was not attempted or committed. If the solicited person acted on the
advice or encouragement and committed the crime, then the solicitor is guilty as an accomplice to the crime;
if the solicited person was guilty of an attempt, then the solicitor is also guilty as an accomplice to the
attempt.
• Most courts hold that solicitation is mere preparation and therefore insufficient to constitute an attempt, but
solicitation may be considered an attempt to conspire.
Once the solicitation has been accepted, then it’s no longer solicitation but conspiracy and you’re an
accomplice.
• Solicitation applies to any felony and to a limited number of aggravated misdemeanors.

A misdemeanor is anything up to a year in prison; a felony is anything above a year.
• Common-law Solicitation:
Committed when a person encouraged or advised another to commit any felony or serious misdemeanor.
The inducement or invitation must have been directed to one individual soliciting the accomplishment of
some particular act which, if complied with, would result in the commission of some specific offense.
Required proof that solicitation was actually communicated to person solicited; if it wasn’t
communicated or was yet to be communicated, then that was a defense.

MPC doesn’t require proof that the solicitation was communicated.
Solicitation could not be renounced under the common law (assuming you were serious about the other
person successfully committing the crime).
Many jurisdictions now follow MPC in recognizing defense in cases of complete and voluntary
renunciation where solicitor either successfully persuades the solicited person not to do the crime or
otherwise prevents its commission.
Solicitation was just punished a misdemeanor under common law and was specific intent crime: you
have to intend to ask and encourage someone, with intent that person successfully commits the crime.

If you didn’t intend that the crime be successfully committed, then that was a defense.


It all hinges on what the solicitor subjectively intended, not on what the person solicited thinks.
The MPC punishes you for inviting someone to commit a crime, whether or not you know they
won’t be successful at the attempt.
• MPC Solicitation:

i. If with purpose of promoting or facilitating commission of crime, you
ii. encourage or request another person to engage in specific conduct which would constitute the crime or
an attempt to commit the crime or would establish your complicity in its commission or attempt.
It is immaterial that the actor fails to communicate with the person he solicits to commit a crime if his
conduct was designed to effect such communication.
It is a defense that the actor, after soliciting another person, persuaded him not to do so or otherwise
prevented the commission of the crime, under circumstances manifesting a complete and voluntary
renunciation of criminal purpose.
Criminal Law (7)

• Modern solicitation statutes tend to limit liability to situations where ∆ encouraged one of the particular
crimes specified in the statute.

MPC punishes solicitation of any crime, whether listed or not.

COMPLICITY

• The aid or encouragement provided doesn’t need to be substantial.
• To be liable for complicity, there must be (1) the intent to assist the primary party, and (2) the intent that the
primary party commits the offense.

There must be proof of purpose (both at common law and under MPC).
• An accomplice has a defense of withdrawal only if he removed all aid and encouragement prior to the time
the crime becomes unstoppable or gave the police timely notice of the crime.
• Common-law Complicity:

Parties to the crime:


Principal in the first degree:



The criminal actor.




• There may be more than one principal in the first degree, but there must be at least one.




• Must be actually or constructively present.


Principal in the second degree:
Must be actually or constructively present, to be in position to assist principal in first degree.
Assistance rendered by principal in second degree is known as “aiding and abetting.”


Accessory before the fact:



Distinction between this and principal in the second degree is presence.
Can be held liable for all crimes that are “natural and probable consequences” of crime assisted.

• This applies to the principal in the second degree too.

• Many courts refuse to extend Natural and Probable Consequences Doctrine.


MPC rejects this doctrine.


Accessory after the fact:
(1) felony is complete; (2) you know person committed the felony; and (3) you aid the felon (4)
for the purpose of hindering his apprehension by authorities.



Not deemed a participant in the felony, but rather one who obstructed justice.
• Subject
to
different
and
lesser
penalties.
Under MPC, you’re guilty of accessory after fact if purposefully try to hinder operation of law.

• The person need not have actually committed the crime, but it’s sufficient if they’re wanted.
Classification scheme existed only for felonies; all parties were held as principals for misdemeanors.
If you’re legally incapable of committing an offense, you can still be convicted as an accomplice.
This is the same in the MPC
Attempted aid which is not communicated to the principal can’t provide encouragement and is,
therefore, insufficient for accomplice liability.
The MPC says that the attempt, although not successfully communicated, is sufficient.
At common law, you can abandon your criminal purpose if (1) you communicate your withdrawal to
principal, and (2) you make a bona fide good-faith effort to neutralize your assistance.
• MPC Complicity:

You’re an accomplice of another person if:


a. with purpose of promoting/facilitating commission of offense, you



i. solicit the other to commit the offense; or



ii. aid or agree or attempt to aid the other person in planning or committing the offense; or



iii. have a legal duty to prevent the offense and you fail to make proper effort to do so; or


b. your conduct is expressly declared by law to establish your complicity.
Criminal Law (8)


You’re not an accomplice if you terminate your complicity prior to the commission of the offense and:


i. you wholly deprive your complicity of it’s effectiveness in the commission of the offense; or


ii. you give timely warning to law enforcement or otherwise make proper effort to prevent offense.
You can be convicted as an accomplice without proof of purpose if causing a particular result is an
element of an offense and you act with the kind of culpability that is sufficient for the offense.
You can be convicted as an accomplice even though the principal in the first degree has been acquitted
or has not been prosecuted or convicted.

This is not the case under the common law, unless you were principal in second degree.
“Innocent Agency Doctrine” was created in order to prevent this immunity under the common
law: If you use an innocent agent to commit a crime, then you’re deemed the principal.

• This common-law rule has now been discarded.
Today, an accomplice can sometimes be convicted of a more serious crime than the
principal.
However, accomplice liability is still derivative of principal’s actions: Principal must
have committed a criminal act.
Under the MPC, if you attempt to aid an apparent principal you’re liable; this is the
same too whether you solicit or agree to aid. The MPC takes a unilateral view of the
agreement, so you can be convicted even if the other only feigned agreement.
You’re not accomplice if offense is so defined that your conduct is inevitably incident to it (e.g.,
prostitution, or extortion).

CONSPIRACY

• Generally, an agreement between two or more people to commit a crime.
• Common elements of conspiracy statutes: (1) agreement between at least two people; (2) purpose to enter
into agreement; (3) overt act in furtherance of agreement (required by most jurisdictions); (4) purpose to
promote unlawful act that’s object of conspiracy; and (5) knowledge that unlawful act is unlawful (required
in most jurisdictions).
• It is generally said that conspiracy requires twofold mens rea: (1) intent to enter into agreement, and (2)
intent to further agreement’s unlawful objective.

There has to be more than knowledge that your service is furthering crime; there has to be purpose too.
• Like attempt, conspiracy punishes inchoate criminal activity.
• If there’s an accomplice, it’s inferred that there was a conspiracy.
• Wharton Rule: Where it’s impossible under any circumstances to commit the substantive offense without
co-operative action, the preliminary agreement between the same parties to commit the offense is not an
indictable conspiracy.

MPC rejects Wharton Rule.
• Corrupt Motive Requirement: few states require proof conspirators knew agreed-upon act was unlawful.

MPC, as well as most states, reject Corruptive Motive Requirement.
• Common-law Conspiracy:

A
misdemeanor.

A specific intent crime: you intend to agree with the extra special intent to commit a crime.


You have to intend that the criminal objective be achieved.
Merger Doctrine: ∆ couldn’t be convicted of both committing crime and conspiring to commit it.

MPC follows merger doctrine.
Most jurisdictions today consider conspiracy a separate and distinct crime, whether or not target
offense has been committed.
Act which needed to be committed in order to be guilty of conspiracy was act of agreement; most states
now require proof that one of conspirators committed an overt act in furtherance of conspiracy, but
agreement still remains essence of the crime.
Criminal Law (9)


Since the agreement was the criminal act, you couldn’t abandon the crime after you agreed.

No formal agreement, oral or written, is necessary; there only needs to be “mutual purpose.”

Common law didn’t require overt act other than act of entering into agreement.
Most states require an overt act; in these jurisdictions, an overt act done by any member of
conspiracy is sufficient to consummate conspiracy as to all parties of the agreement.
• However, overt act need not be an act beyond preparation; it can by any act committed by
one of conspirators in furtherance of agreement’s unlawful objectives; it doesn’t matter how
remote the act is from accomplishing purpose, if done to effect it; even an omission can be an
overt act in some contexts; the overt act need not be unlawful; even speech can suffice.
Common law did not require that unlawful act actually be a crime; it could be a tort or an immoral act.

MPC says objective has to be a crime.
Even though many of the parties may never have communicated with each other, they are considered
part of single conspiracy if prosecution can show a “community of interest” among them; community of
interest is usually established if they worked together to achieve same goal, were aware they were
working together, and knew their success depended on each other.
All you have to prove at common law is that conspirator had a general awareness of scope and
objective of conspiracy.
• MPC Conspiracy:
You’re guilty of conspiracy with another person to commit a crime if with purpose of promoting or
facilitating its commission, you:
a. Agree with the other person(s) that they or one or more of them will engage in conduct which
constitutes the crime or an attempt or solicitation to commit the crime; or
b. Agree to aid the other person(s) in planning or committing the crime or an attempt or solicitation to
commit it.
If you’re guilty of conspiracy, and you know that one of the people you conspire with has conspired
with another to commit the same crime, then you’re guilty of conspiring with the additional person(s)
too, whether or not you know their identities (or whether or not you know how many of them there are).
If you conspire to commit several crimes, you’re only guilty of one of them if they are all the object of
the same agreement or continuous conspiratorial relationship.
You can’t be convicted of conspiracy to commit a crime (unless it’s felony of the first or second degree),
unless you or a person you conspired with committed an overt act in furtherance of the conspiracy.
No overt act is generally required though; all you have to do is do something, whether legal or not,
so it doesn’t really make a difference.
It’s a defense if after conspiring you thwart the success of the conspiracy under circumstances
manifesting a complete and voluntary renunciation of your criminal purpose.
The conspiracy is complete once (1) the crime(s) which are the object of the conspiracy have been
committed; or (2) you nor anyone you conspired with does an overt act in pursuance of the conspiracy
during the applicable period of limitation; or (3) if you abandon the agreement, then the conspiracy is
terminated for you, and this only if you advise those you conspired with of your abandonment or you
inform law enforcement of existence of conspiracy and of your participation in it.
2+ people can be prosecuted jointly if: (1) they’re charged with conspiring together; or (2) alleged
conspiracies are so related as to constitute different aspects of scheme of organized criminal conduct.

Has a unilateral approach; treats conspiracy as an individual’s attempt to commit crime by combination.


Common law has a bilateral approach (i.e., two guilty minds); treats it as a group crime.
• It is possible for a single agreement to violate two different conspiracy statutes; in such cases, conspirators
can be punished separately for each conspiracy statute they violated.


JUSTIFICATION DEFENSES

Criminal Law (10)

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