#11845 - Criminal Law Attack - Criminal Law

Criminal Law

University of Virginia School of Law

Short Attack Outline

Attempt:

1. Common Law:

   1. Tests:

      1. Proximity Tests

         1. Dangerous Proximity Test – Ex Post, what’s left to do

            1. Test: reasonably likely the crime would have been completed if no unforeseen circumstances

            2. See People v. Harper ATM (discourages early police action)

         2. Indispensable Element Test

            1. Test: has the actor passed a certain boundary by completing an essential element of the crime (e.g. control over what they need to complete crime)

      2. Other:

         1. Res Ipsa Loquitur: the act alone shows criminal intent on it’s face (higher standard than the MPC, see Salmond in Barker)

         2. Overt Act Test: there must be an overt act that is unequivocal and unambiguous in nature that is referable to the commission of the crime (i.e. the crime corroborates the intent, see Bowen and Rouse)

      3. Mens Rea for Results:

         1. You must have specific intent for all of the crime

         2. You must have specific intent/purpose for the attempt conduct

         3. Thacker v. Commonwealth: Majority (MPC rule)

            1. Requires the mens rea that would apply if crime was completed

         4. People v. Thomas: Minority

            1. Requires only knowing mens rea for results, then butchers mens rea in order to allow reckless manslaughter (think specific intent)

      4. Grading: some jurisdictions grade down for felonies, some treat as the same as the target offense

1. MPC § 5.01 “Substantial Step” test – ex ante (also used by some common law, Bowen & Rouse)

   1. § 5.01(2): the conduct must be strongly corroborative of criminal purpose (see examples)

   2. § 5.01(1):

      1. (a) Impossibility: look to what the actor believed, not the actual circumstances

         1. see also 2.04(1)

      2. (b) Results Elements: requires purpose mens rea

   3. § 5.05(1) graded the same as the underlying crime except for 1^st D felonies, down to 2^nd

2. Abandonment/Revocation: analyze after you have determined that there was an attempt

   1. § 5.01(4): Abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose

   2. Common Law: (Ross v. Mississippi) must be done through actor’s own volition or verbal request of victim but without physical resistance/external intervention

3. Solicitation:

   1. Common Law: hard, statutory now, requires application of the same tests

      1. See Adami (mere preparation) and Decker (requires acts showing purpose) for views on police solicitation of criminal conduct, especially policy concerns

   2. MPC 5.02: commands, encourages, or requests someone – if completed it’s accomplice 2.06

4. See outline for Impossibility

Complicity: Accomplice Liability

5. Common law:

   1. Principals and Accomplices: Treated both as principles

   2. Obstruction: for those that aid after

   3. Obstruction of Justice:

      1. Aiding/hindering after

   4. Actus Reus: Must aid/accomplish one element of the crime

      1. Mere solicitation is not enough (see McGee)

      2. Can be by an Omission (see Walden)

      3. Mere presence is not enough (see Creek and Vailancourt for the line)

   5. Mens Rea:

      1. Stake in the Venture/Peoni Test

         1. Must have acts and purpose to further one element, knowledge for the rest

         2. See Rosemond: purpose to forward one element of the crime (not the whole crime, e.g. firearm)

      2. Substantial Aid with Knowledge Test

         1. Providing substantial aid with knowledge that it will assist in the commission of the object offense

   6. Doctrine of Natural and Probably Consequences: (minority position) – see Chiu

      1. Extends liability from commission of the target offense to non-target offenses committed by others when the crime was reasonably foreseeable during the course of committing the target offense

      2. Applied by some states to complicity, most to conspiracy

      3. Exception – Murder: can only be held liable for second degree murder under N&PC because first degree murder requires mens rea of purpose, even if it is natural and foreseeable (see Chiu and Wilson-Bey)

      4. Find D’s liability as principal or accomplice, then consider his mens rea toward circumstances (negligent, reasonable man foresee), then extend to other crimes (N+PC?)

   7. Doctrine of Innocent Agency: same as MPC 2.06(2)(a)

6. MPC:

   1. 2.06(1): equivalence of liability for accomplices and principals

   2. MPC § 242.3 Hindering apprehension or prosecution: need to act with the purpose to hinder, no need to be successful

   3. Actus Reus (§ 2.06(3)(a)(2)): accomplice must aid, or agree or attempt to aid the crime

      1. Can include solicitation, preparation, or even agreeing to aid (too much)

   4. 2.06(2)(a) Innocent Agent: alternatively they can act with culpability for underlying offense they cause an innocent person to commit the crime unknowingly

   5. Mens Rea (§ 2.06(1)): must have purpose of promoting or facilitating the crime

      1. Results – 2.06(4): must have culpability required by the underlying offense

7. See NY Penal Code for Facilitation vs. purpose for complicity

Conspiracy:

1. Common Law:

   1. Relation to other doctrines:

      1. Does not Merge: can be guilty of conspiracy and the object offense that others committed

      2. Can be guilty of attempt and conspiracy

   2. Pinkerton Doctrine: Natural and Probable Consequences (majority + fed.)

      1. Was the co-conspirator’s offense a reasonably foreseeable result of the conspiracy itself and was it in furtherance of the conspiracy

      2. Actus Reus: so long as the conspiracy exist, a criminal act of one is that of them all if done to further the conspiracy

      3. Mens Rea: established by participation in conspiracy itself

      4. Need not be charged, can be found vicariously liable (Zackery)

   3. Showing Intent/Purpose/Agreement in Conspiracy: People v. Lauria

      1. There must be direct evidence that the actor participated or intended to participate

      2. If the actor appears indifferent, intent can be showed by:

         1. Special interest

         2. Aggravated nature of the crime itself

         3. See other factors from complicity

   4. 18 USC § 371: Federal Conspiracy Statute

      1. D conspired with co-conspirators to commit an object offense AND

      2. One of the conspirators took acts to further the conspiracy

      3. Carries additional 5 year sentence

   5. Procedural Advantages:

      1. High sentencing

      2. All tried together

         1. Finger pointing

         2. Guilty by association

         3. One D defending themselves will likely incriminate another

      3. Hearsay evidence is admissible from co-conspirators to incriminate others regarding agreement

2. MPC 5.03(3)

   1. Conspiracy is only an inchoate crime and therefore merges once the crime is completed (co-conspirator then must be tried as an accomplice under 2.06 to find them liable for the acts of another)

   2. Actus Reus:

      1. Agree to participate in conduct that constitutes completing, attempting, or soliciting the crime OR

      2. They agree to aid someone else in the planning or commission of the crime

   3. Mens Rea: requires purpose of promoting the crime

3. WHY WOULD YOU WANT TO TRY AS ACCOMPLICE INSTEAD OF CONSPIRACY????

4. WHAT IS THE ALTERNATIVE TEST TO PINKERTON???

5. WHAT ABOUT JURISDICTIONS THAT MAKE “CONSPIRACY TO ___” INDIVIDUAL CRIMES??

RICO

1. See sup. P. 54-57 for statute

2. 18 U.S.C. § 1961 – Definitions -

   1. (1) “Racketeering activity” crimes listed

   2. (4) “Enterprise” includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity”

   3. (5) “Pattern of racketeering activity” requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity

3. 18 U.S.C. § 1962 – Prohibited Activities

   1. (a) Investing income from pattern of racketeering activity to participate in control of an enterprise

   2. (b) Get an interest in an enterprise through a pattern of racketeering activity

   3. (c) Employee conducting the business of an enterprise through a pattern of racketeering activity

   4. (d) Conspiring to a, b, or c

4. 18 U.S.C. 1963 – penalty of 20 years (or life if the racketeering activity

5. 18 U.S.C. 1964 – Civil RICO (treble damages for injury from RICO as well as getting costs of suit)

6. Enterprise:

   1. US v. Turkette: “enterprise” per § 1962 extends beyond legitimate business to illicit organizations

   2. US v. Elliot: “enterprise” per § 1962 could be tied together solely based agreement to pursue on the common goal of making money by participating in two or more of the predicate acts in § 1961

   3. Boyle v. US: “enterprise” has to have some structure and pattern of activity, but it does not need to be separate and apart from the commission of the predicate acts (i.e. can be proved by same evidence as used for “pattern of racketeering activity”)

7. Pattern of Racketeering Activity:

   1. Note: 18 U.S.C. § 1341 and 1343 – Mail and Wire Fraud

   2. Note: mostly addressed in civil RICO (

   3. Sedima SPRL v. Imrex Co., Inc.: footnote suggested pattern may include acts w/ similar purposes, results, participants, victims, methods of commission, or otherwise interrelated/not isolated.

   4. HJ Inc. v. Northwestern Bell Telephone Co.: pattern means “continuity plus relationship”

      1. Continuity: Long term or continued threat of repeat offenses

      2. Relationship: similar purposes, results, participants, victims, methods of commission, or otherwise interrelated/not isolated (includes normal way of doing business)

OR LIFE PROVISION IN 1963???

Criminal Act – Actus Reus

1. Common Law

   1. Voluntary Act Doctrine

      1. Types of...