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Criminal Law, DEFENSES TO CRIME, INCHOATE OFFENSES, ACCOMPLICE LIABILITY -…

- - - - "The killing of a human being by another human being."
    - - Malice may be express or implied
      - A finding of implied malice requires that one act with a conscious disregard for human life.
  - - - MURDER
        
        First Degree Murder
        
        1.Specified Manner
        
        Poison
        
        Lying in wait
        
        2.Willful, deliberate, and premeditated
        
        3.Felony-Murder
        
        (arson, rape, robbery, or burglary)
        
        Second Degree Murder
        
        Intentional but not premeditated
        
        Intent to inflict grievous bodily injury
        
        Extremely reckless killings
        
        Felony-Murder (felonies not enumerated in first-degree felony-murder statute)
      - MANSSLAUGHTER
        
        Voluntary Manslaughter
        
        Criminal Homicide that is otherwise murder
        
        Occurred under circumstances that warrants a mitigation to manslaughter
        
        Also known as “Sudden Heat of Passion” manslaughter
        
        Involuntary Manslaughter
        
        Reckless (or negligent)
        
        Misdemeanor-Manslaughter
    - - State of passion
      - Adequate provocation
        
        COMMON LAW ADEQUATE PROVOCATION
        
        Aggravated assault or battery
        
        Mutual combat
        
        Commission of a serious crime against a close relative
        
        Illegal arrest
        
        Observation by husband of wife committing adultery
        
        COMMON LAW What is NOT adequately provoking
        
        Trivial battery
        
        Learning about adultery
        
        Observing unfaithfulness of an unmarried partner
        
        Mere words
        
        MODERN APPROACH TO ADEQUATE PROVOCATION
        
        No fixed categories
        
        Reasonable person standard
        
        Majority: Words are not enough
        
        Minority: Insulting words vs. informational words
      - No cooling off period
      - Causation
    - - Criminal homicide constitutes manslaughter when:
      - (a) it is committed recklessly; or
      - (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse... The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.
      - differences
        
        A specific provocative act is not required
        
        No need for injury or affront to be perpetrated on the defendant by the decedent
        
        No fixed categories of provocation
        
        No suddenness requirement or “cooling off” rule
  - - - “One is guilty of murder if a death results from conduct during the commission or attempted commission of any felony.”
      - rationale
        
        Deterrence
        
        but from what? cannot deter unintended act... rather to deter felons from being careless when committing felonies
    - - Inherently Dangerous Felony Limitation
        
        Only felonies that create a substantial risk of death to another can serve as the basis of a felony-murder charge.
        
        Abstract approach-- look at elements of felony removed from facts to determine if there is a substantial risk of death
        
        Facts of the case test-- use facts of the case to determine if there is a substantial risk of death
      - Independent Felony (Merger) Limitation
        
        a felony that is assaultive in nature cannot serve as the basis of a felony-murder charge because the assaultive (threat of immediate violence or injury) felony is said to merge with the murder. (gives the court an out to not have to prove elements)
      - The Res Gestae Limitation
        
        “One is guilty of murder if a death results from conduct during the commission or attempted commission of any felony.”
        
        When does the res gestae period begin and when does it end?
        
        It begins when the defendant could fairly be charged and convicted of attempt
        
        It ends when the defendant has reached a place of relative safety from law enforcement
      - Killing by a Non- Felon
        
        Other jurisdictions follow the “proximate causation” approach. They reason that if the killing committed by a non-felon is the result of a sequence of events set forth by the defendant, the defendant is ultimately responsible. Therefore, the killing by a non-felon should be attributable to the felon and should serve as the basis of a felony-murder charge.
        
        The felony-murder rule is not applicable where a non-felon is responsible for the resulting death.
        
        The majority of jurisdictions have arrived at this conclusion by following the “agency” approach. Under this approach, the act of killing is imputed to the defendant when committed by an accomplice. In contrast, the acts of an independent third-party are not imputed to a defendant because there is no agency between the defendant and the third-party.
- - - - “What distinguishes a criminal from a civil sanction … is the judgement of the community condemnation which accompanies it.”– Professor Hart
      - “To the extent that conduct that does not justify moral condemnation is treated as criminal, as is sometimes the case, the line between civil and criminal processes is unfortunately blurred.”
        – Professor Dressler
      - “The essence of punishment for moral delinquency lies in the criminal conviction itself. … It is the expression of the communities hatred, fear, or contempt for the convict which alone characterizes physical hardship as punishment.” – Professor Gardner
  - - - Model penal code divides felonies and some misdemeanors into different degrees
- - - - Criminal Act (actus reus)
        
        A voluntary act
        
        What do we mean by “VOLUNTARY”?
        
        The broad meaning of the word is “free will”. In this sense an “involuntary” act is one with insufficient free choice (e.g. a person acts under duress).
        
        This broad meaning is NOT used in determining whether the actus reus of an offence has occurred.
        
        The narrow meaning (as used in the context of actus reus analysis) is “a movement of the body which follows our volition” or a “willed” contraction of a muscle.
        
        Voluntary is not a synonym for intentional.
        
        OF YOUR OWN VOLITION
        
        acts that are not voluntary
        
        Unconscious
        
        Sleepwalking
        
        Reflex
        
        Spasm
        
        Trance
        
        Hypnosis
        
        Laughing?
        
        Crying?
        
        act vs omission
        
        The criminal law distinguishes between an act that affirmatively causes harm and the failure to take measures to prevent harm.
        
        A person has no criminal law duty to act to prevent harm to another even if she can do so at no risk to herself.
        
        FIVE EXCEPTIONS where there is criminal law duty
        
        1.Where the statue imposes a duty
        
        Where one stands in a certain status relationship to another
        
        Where one assumed a contractual duty of care
        
        Where one voluntarily assumes the care of another secluding the helpless person and preventing others from rendering aid
        
        When a person creates a risk of harm to another (even innocently)
        
        that causes
        
        ACTUAL CAUSE (“FACTUAL CAUSE”)
        
        The “but for” test
        
        “But for (if you take away) the voluntary act of the accused, would the socially prohibited harm have occurred?”
        
        If the answer is “YES” (the harm would still have occurred even without the act) we do not have causation.
        
        If the answer is “NO” (the harm would not have occurred without the act) we have causation.
        
        The problem of multiple actual causes
        
        Accelerating a result
        
        D1 stabs V victim at noon. V would have died from that injury in 4 hours – at 4:00 p.m.
        
        D2 stabs V at 1:00 p.m. If that was the only injury V had suffered, V would have died from this stab wound 2 hours later at 3:00 p.m.
        
        However, because of the combination of the stabbings by both, D1 and D2, V died at 2:00 p.m.
        
        BOTH D1 and D2 were the cause of V’s death. Both can be said to have brought about V’s death sooner than it would have otherwise occurred. Both, therefore, ACCELERATED THE RESULT.
        
        Concurrent sufficient causes
        
        If two individual harms occur at the same time by different parties that were sufficient to cause a death, both parties will be held responsible even though the actions do not stand under the but for test
        
        Obstructed cause
        
        D1 stabs V in the chest nicking V’s heart. V survives but now has a weak spot on the wall of his heart. V is only 20 years old. Doctor’s tell him he could live a normal life span or the weaken spot on his heart could rupture at anytime resulting in his death.
        
        If we could see into the future we would see that 40 years later, V, now 60 years old, is playing basketball with his grandson when he collapses. An autopsy reveals that the weak spot on his heart ruptured causing his death.
        
        Did D1 caused V’s death?
        YES – even though it took 40 years to come about, but for the voluntary act of D1, V would not have died when he died.
        
        If someone performs an action that causes someone elses death, it does not matter how long it takes for the death to occur; they will still be liable. If some other event occurs to cause the death, they will not be liable however.
        
        V did not live to 60. Instead, 20 years after the stabbing when V was 40, he was playing golf when a lightening storm came up. He was struck by lightening and died – a direct hit no one could have survived.
        
        Now let’s change the facts.
        
        Would we now say D1 caused V’s death?
        NO, of course not.
        
        PROXIMATE CAUSE
        
        When does it become unfair to hold a person criminally culpable for causing harm?
        
        Intervening causes
        
        How forseeable was the intervening cause?
        
        Responsive intervening cause: one which is in response to D's initial voluntary act/omission
        
        Coincidental intervening cause: a force that does not occur in response to the initial wrongdoer's conduct.
        
        De Minimis Contribution to the Social harm
        
        if the defendant's voluntary act caused minor social harm compared to the social harm resulting from a substantial, intervening cause, the law will treat the latter as the proximate cause of the social harm
        
        intended consequences Doctrine
        
        people can be held culpable for consequences they intend even if they result in ways they neither intended nor foresaw.
        
        apparent safety doctrine
        
        The "apparent safety" doctrine says that once the danger from the defendant is no longer present, we no longer consider that defendant a proximate cause.
        
        Free, Deliberate, Informed Human Intervention
        
        Omissions
        
        negative acts (omissions) do not usually supersede positive acts (actual cause)
        
        social harm
        
        Two types of crimes
        
        Conduct Crimes
        
        No tangible harm is required. The social harm is more abstract.
        
        Examples:
        
        Driving under the influence of alcohol
        
        Attempt of any offense
        
        Result Crimes
        
        Examples:
        
        Homicide (the death of a person)
        
        Arson (destruction of a dwelling)
        
        The law punishes because of an unwanted outcome.
        
        Attendant circumstances
        
        a condition that must also be present in addition to result or conduct.
        
        Examples:
        
        Age of victim in statutory rape case
        
        Martin v. State (two or more persons present for public intoxication charge)
    - - “An act does not make [a person] guilty unless the mind be guilty.”
      - Two definitions
        
        The “culpability” meaning
        
        Broad meaning: The “culpability” meaning
        The defendant acts with the a morally blameworthy state of mind
        
        The “elemental” meaning
        
        Narrow meaning: The “elemental” meaning
        The defendant is not guilty if she lacks the mental state specified in the definition of the crime.
      - COMMON LAW MENS REA TERMS
        
        Intentionally
        
        1.It is his desire to cause the social harm, or
        
        2.He acts with knowledge the social harm is virtually certain to occur
        
        Knowingly
        
        A person who knowingly causes social harm is commonly said to have “intended” the social harm but knowledge of attendant circumstances is required.
        
        Willfully
        
        Sometimes synonymous with “intentional”
        
        Sometimes means with bad purpose or evil motive
        
        Sometimes means intentional violation of a known legal duty (a purpose to disobey the law)
        
        Recklessly
        
        At one time negligently and recklessly were synonymous.
        
        Now criminal recklessness requires proof the actor disregarded a substantial and unjustified risk of which he was aware.
        
        Negligently
        
        Criminal negligence is more. It is a gross deviation from accepted standards of care.
        
        Civil negligence is a deviation from accepted standards of care.
      - MODEL PENAL CODE
        
        Purposely
        
        A person acts purposely with respect to a material element of an offense when:
        
        (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
        
        (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist
        
        Knowingly
        
        A person acts knowingly with respect to a material element of an offense when:
        
        (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
        
        (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
        
        Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.
        (actual knowledge not needed )
        
        Recklessly
        
        A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.
        
        Negligently
        
        A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.
        
        2.02 General Requirements of Culpability.
        (1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.
        
        (3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.
      - TRANSFERRED INTENT
        
        Applies when one intends a specific type of social harm and causes the same type to a different target
        
        When Transferred Intent Does Not Apply:
        
        1.Where the intent is “used up”
        
        Where defendant intends to commit one social harm and causes another social harm
        
        Mistaken identity
        
        Where the law requires the criminal intent be directed toward the actual victim
      - Strict Liability
        
        Crimes that, by definition, do not contain a mens rea requirement regarding one or more elements of the actus reus
        
        Strict Liability Offenses
        
        Malum in se
        
        wrong or evil in itself.
        
        Malum prohibitum
        
        wrong only because it is prohibited
        
        Strict Liability and Public Welfare Offenses
        
        1.Not derived from common law
        
        Single violation can injure many people
        
        Standard is reasonable
        
        Penalty is relatively minor
        
        Conviction rarely damages reputation
        
        The Model Penal Code Approach
        
        The drafters of the Model Penal Code attempted to limit strict liability by requiring a mens rea for all crimes and allowing strict liability only for “offenses”.
  - - - Three Definitions of General Intent v. Specific Intent Crimes
        
        Specific Intent Crime: One that contains in it’s definition a special mental element above and beyond any mental state required with respect to the actus reus of the crime.
        
        Specific Intent Crimes contain one of three special mental elements:
        
        Intention to commit some future act.
        
        Special motive or purpose for committing the act.
        
        Awareness of an attendant circumstance
        
        General Intent Crime: Contains in it’s definition a mental state that relates solely to the actus reus of the offense.
        
        THE COMMON LAW APPROACH
        
        There are different rules for general intent crimes and specific intent crimes
        
        SPECIFIC INTENT CRIMES – If the mistake negates the particular element of the mens rea, the mistake is exculpatory (whether or not the mistake is reasonable).
        
        GENERAL INTENT CRIMES – The mistake must be reasonable to be exculpatory.
      - The Legal Wrong Doctrine
        
        Statute 1 provides that it is a felony to furnish particular contraband (i.e., child pornography) to a person under the age of eighteen.
        
        Statute 2 provides that it is a misdemeanor to furnish the same contraband to a person age eighteen or older.
        
        If D furnishes the contraband to a seventeen-year-old (the actus reus of statute 1) whom he reasonably believes is eighteen (the mens rea of statute 2) the legal wrong doctrine provides that D may be convicted of the felony and punished accordingly.
        
        Although mistake of fact would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed.
        
        If a defendant’s conduct, based on the facts as he believed them to be, constitutes a crime, even though a less serious crime than he intended, he may be convicted of the more serious offense.
        
        In other words, the “Mistake of Fact” defense is unavailable.
        
        Model Penal Code Approach
        (2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the … mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.
    - - “Ignorance of the law is no excuse.”
      - Ignorance (or mistake) of law does not usually serve as a failure of proof defense.
      - Exceptions:
        
        Reasonable reliance
        
        Fair notice
        
        Failure of proof where the law requires knowledge
  - - - Mens rea preceding the voluntary act
      - Delay in the social harm
      - Voluntary act preceding the mens rea
    - - when mens rea occurs first, motivating actus reus
- - - - General Deterrence
        
        D is punished in order to convince the general community to forego criminal conduct in the future
      - Specific (Individual) Deterrence
        
        D is punished to deter D's future conduct
      - Incapacitation
        
        D's imprisonment prevents him from committing future crimes while imprisoned
      - Rehabilitation (Reform)
        
        Reducing future crime by changing behavior through reform rather than fear of punishment
  - - - Assaultive retribution, public vengeance, or societal retaliation
        
        Because criminal has hurt society, it is necessary for society to harm the criminal in return
      - Protective retribution
        
        Punishment is necessary to maintain balance of law and society; when someone breaks the law, they are creating an imbalance on societal norms
- - - - Under an objective standard, jurors decide whether a police officer's actions would have induced a normally law-abiding person to commit a crime.
      - In a state that employs an objective test of entrapment, a conclusion that entrapment took place results in a not guilty verdict.
    - - Under a subjective standard, jurors decide whether the defendant's predisposition to commit the crime makes the defendant responsible for his or her actions, regardless of any government agent's inducements.
      - In a state that employs a subjective test of entrapment, a conclusion that entrapment took place results in the burden of proof shifting back to the prosecution to prove beyond a reasonable doubt that the defendant is guilty because the defendant's predisposition to commit the crime, not the government agent's actions, prompted the defendant to commit the crime.
- - - - – Public Benefit
      - – Moral Forfeiture (not waiver)
        
        wrongdoer forfeits rights as a result of decision
      - – Moral Rights
        
        victim has moral rights being violated
      - – Superior Interests (lesser harm)
    - - Triggering conditions permit a necessary and proportional response.
      - Three concepts:
        
        Triggering conditions
        
        Necessary response
        
        Proportional response
  - - - – Deterrence
      - – Causation
        
        person should not be blamed for factors outside of their control
      - – Character
        
        punishment should be proportional to wrongdoers moral desert
      - – Free Choice
        
        only blamed for conduct if they had the free choice to perform it
    - - Another person threatened to kill the or grievously injure the actor or a third party
      - The actor reasonably believed the threat was genuine
      - The threat was “present, imminent, AND impending”
      - No reasonable escape from the threat
      - The actor was not at fault in exposing herself to the threat
- - - - trial courts rarely instruct juries on the defense of necessity in indirect civil diso. cases, although it is used to some success by protestors occasionally
      - arguments for political necessity
        
        places the jury in a position to acquit defendant
        
        improves the quality and quantity of public discussion
        
        empowers the individual by presenting a forum for public hearing
- - - - NON-DEADLY AGGRESSORS
        
        Example: A, a non-deadly aggressor, threatens B with non-deadly force. B responds by threatening A with deadly force. Does A lose the status of aggressor?
        
        Majority – Yes, automatically.
        
        Minority – Only if A retreats if safe retreat is possible.
      - DEADLY AGGRESSORS
        
        Example: A, pulls a knife on B. B responds by pulling a gun. Can A regain the status of non-aggressor and defend himself?
        
        Yes, but only if A abandons her deadly design and communicates this fact to B.
    - - Non-deadly force may be used in response to a non-deadly attack.
      - Non-deadly force may be used in response to a deadly attack.
      - A person may not use deadly force to repel a deadly attack if a more moderate (non-deadly) force will suffice. In other words deadly force can only be used when it is necessary to repel a deadly attack.
      - Deadly force may never be used in response to non-deadly force even if this is the only way to repel the non-deadly attack.
    - - A person may not use deadly force in self-defense unless the aggressor’s threatened force will occur immediately – almost at that instant.
    - - Self-defense is measured against necessity. If an innocent person is attacked and if he has only two realistic options—use deadly force or retreat to a place of safety—must he choose retreat? In other words, is deadly force really “necessary” if retreat is an option?
        
        THE NO-RETREAT RULE: A majority of jurisdictions apply a “no-retreat” or “stand your ground” rule.
        
        Ohio is the 36th state to pass “stand your ground”.
        
        Ohio’s New No-Duty-To-Retreat Law
        “[A] person has no duty to retreat before using force in self-defense or defense of another if that person is in a place in which the person lawfully has a right to be.
        A trier of fact shall not consider the possibility of retreat as a factor in determining whether or not a person who used force in self-defense, defense of another, or defense of that person's residence reasonably believed that the force was necessary to prevent injury, loss, or risk to life or safety.”
        
        Ohio’s law goes into effect on April 4, 2021
        
        THE RETREAT RULE: A significant minority of jurisdictions provide that an innocent person threatened by deadly force must retreat rather than use deadly force if he is aware that he can do so in complete safety.
        
        THE CASTLE EXCEPTION TO THE RETREAT RULE:
        
        The Castle Doctrine is a universally recognized exception that provides that a non-aggressor is not required to retreat from his dwelling, even though he knows he can do so in complete safety, before using deadly force in self-defense. The reasoning is that a person’s home is his castle—his final sanctuary from external attack.
    - - A “reasonable belief” is a belief a reasonable person would hold. So who is a reasonable person?
      - How much do we incorporate the characteristics of the actor into the standard?
        
        Ordinarily the physical characteristic may be incorporated (i.e. gender, disabilities, etc.).
        
        Many courts consider experiences of the defendant that help the defendant evaluate the situation.
      - What if the belief is unreasonable?
        
        In most common law jurisdictions, a person who acts on the basis of an unreasonable belief entirely loses her self-defense claim.
        
        Some jurisdictions recognize an “imperfect” or “inchoate” defense in homicide prosecutions. It may mitigate murder to manslaughter.
  - - - Confrontational homicides
        
        woman kills abusive partner when he poses an immediate threate of death or serious injury to her
      - Non-confrontational homicides
        
        the abuser is killed while asleep or during some other lull in the violence
      - Importuned (killings for hire)
    - - Absent the Battered Women’s Syndrome, a self- defense instruction should only be given in cases that involve apparently confrontational homicides.
    - - Prior abuse by the accuser
        
        Reasonable fear of deadly force
        
        Describe the actions of the decedent that have been a precursor to violence
      - Expert testimony regarding the Battered Women’s Syndrome
        
        Enhances the defendant’s credibility (i.e. explains “learned helplessness”)
        
        Explain in what appears to be non-confrontational situations why the defendant subjectively believed she was in danger and why her belief was objectively reasonable
- - - - MPC § 3.05. Use of Force for the Protection of Other Persons.
      - (1) … [T]he use of force upon or toward the person of another is justifiable to protect a third person when:
      - (a) the actor would be justified … in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; and
      - (b) under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and
      - (c) the actor believes that his intervention is necessary for the protection of such other person.
- - - - (a) the capacity to consult with her attorney with a reasonable degree of rational understanding; or
      - (b) a rational understanding of the proceedings
    - - Competency may be raised by prosecutor, defendant, or the court
      - Issue of law to be determined by the judge
      - Defendant required to submit to a psychiatric evaluation
      - If the findings are not in dispute, the court may act on the report
      - If findings are in dispute – hearing
      - Who has the burden of proof?
        
        Some states say the government has to prove competency
        
        Some states say the defendant has to prove incompetency
        
        Some states say the party raising the issue has the burden of proof
    - - Criminal Proceedings Suspended
      - Defendant usually committed to a mental institution
      - Defendant cannot be held in a mental institution “more than the reasonable period of time necessary to determine whether there is a substantial probability that she will attain capacity in the foreseeable future”.
  - - - A person who suffers from a severe disorder that undermines the actor’s ability to perceive reality (cognitive) or control her conduct (volition) is undeterred by the threat of punishment.
      - Counter-arguments
        
        Undeterrability demonstrates dangerous. Deterrence by incapacitation is justified.
        
        Punishment would deter others from feigning mental illness.
    - - The insanity defense separates those we consider bad or evil from those we consider sick. A person who is not morally blameworthy is not fairly subject to moral condemnation.
    - - Most states and the federal government require notice (plea of NotGuiltyReasonInsanity)
      - In most jurisdictions the court has authority to have the accused committed for 60 to 90 days for a psychiatric evaluation
      - It’s common to prohibit introduction of defendant’s statements to the psychiatrist or psychologist other than those relating to the psychiatric evaluation (right against self-incrimination)
    - - Guilty
      - Not Guilty
      - Not Guilty by Reason of Insanity
    - - First phase on merits (without considering the defendant’s sanity)
        
        If not guilty – defendant is discharged
        
        If guilty – second phase to consider sanity
      - Few states require and most states permit bifurcation
    - - THE M’NAUGHTEN TEST
        (1843)
        
        A person is insane if, at the time of his act, he was laboring under such a defect of reason, arising from a disease of the mind, that he: (1) did not know the nature and quality of the act he was doing; or (2) if he did know it, he did not know that what he was doing was wrong, i.e. the accused at the time of doing the act did not know the difference between right and wrong.
        
        COGNITION
      - THE IRRESISTIBLE IMPULSE TEST
        (1887)
        
        A person is insane if, at the time of his act, he was laboring under such a defect of reason, arising from a disease of the mind, that he: (1) did not know the nature and quality of the act he was doing; or (2) if he did know it, he did not know that what he was doing was wrong, i.e. the accused at the time of doing the act did not know the difference between right and wrong; or
        (3) he acted from an irresistible and uncontrollable impulse; or (3) he lost the power to choose between right and wrong, and to avoid doing the act in question as that his free agency was at the time destroyed; or (3) the defendant’s will has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control.
        
        COGNITION AND VOLITION
      - THE PRODUCT (DURHAM) TEST (1954-1972 in D.C. and still the law in New Hampshire)
        
        A person is excused if his unlawful act was the product of a mental disease or defect.
        
        COGNITION AND VOLITION
      - THE AMERICAN LAW INSTITUTE
        (MODEL PENAL CODE) TEST
        
        A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.
        
        COGNITION AND VOLITION
      - THE FEDERAL TEST
        (Part of the Insanity Defense Reform Act of 1984)
        
        It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.
        
        COGNITION ONLY
      - tests of cognition (DID Not know) or volition (could not control)
    - - Rule 704. Opinion on an Ultimate Issue
        
        (a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.
        
        (b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.
    - - The Eighth and Fourteenth Amendments to the United States Constitution do not require that states adopt the insanity defense in criminal cases.
      - Kansas, Idaho, Montana, and Utah have discarded the insanity defense.
      - Defendants can still argue they did not have the mental capacity to formulate the requisite intent to commit the crime.
    - - 2901.01 General provisions definitions.
        
        (A) (14) A person is "not guilty by reason of insanity" relative to a charge of an offense only if the person proves [by a preponderance of the evidence] that at the time of the commission of the offense, the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person's acts.
      - 2945.391 Not guilty by reason of insanity finding.
        
        Proof that a person's reason, at the time of the commission of an offense, was so impaired that the person did not have the ability to refrain from doing the person's act or acts, does not constitute a defense.
- - - - The issue is whether a person can be convicted of conspiracy if, with knowledge that another person intends to commit an unlawful act, but with indifference as to whether the crime is committed, he furnishes instrumentality for that offense or provides a service to the person that aids in its commission.
      - In a majority of jurisdictions, a person will not be convicted of conspiracy unless he acts with the purpose of promoting or facilitating the offense. Knowledge coupled with indifference is insufficient.
      - However, purpose can be inferred from knowledge.
  - - - Where one feigns agreement, e.g. an undercover police officer
      - Where one, because of mental illness or some other reason, lacks the requisite mens rea
  - - - each individual in the chain makes a subsequent agreement with another, who then makes an agreement for the same goal with a different person and so on
    - - all individuals in the conspiracy interact with one main individual, but have the shared agreement goal
  - - - Unnecessary party
      - Third-party
  - - - (1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
        
        (a) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
        
        (b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
      - (5) Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
      - (6) Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.
    - - (1) Grading. Except as otherwise provided in this Section, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy. An attempt, solicitation or conspiracy to commit a [capital crime or a] felony of the first degree is a felony of the second degree.
    - - (1) Prosecution for Multiple Offenses; Limitation on Convictions. When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
        
        (b) one offense consists only of a conspiracy or other form of preparation to commit the other; or
        
        (e) the offense is defined as a continuing course of conduct and the defendant's course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.
- - - - actor does every act planned but is unsuccessful in producing result
    - - actor does some of the acts set out to do, but then desists or is prevented from continuing by an extraneous factor ie (intervention of police officer)
  - - - At common law attempt was a misdemeanor regardless of the severity of the target offense (e.g. murder was a capital crime but attempted murder was a misdemeanor).
    - - Attempt to commit a felony is a felony; attempt to commit a misdemeanor is a misdemeanor
      - Attempt is a lessor crime punished about one-half of as severely as the target offense
      - Should attempt be punished less?
        
        Same mens rea and actus reus
        
        Less social harm
        
        Deterrence – provide an incentive to desist
  - - - Intent to fire a gun(general), and intent to fire a gun and kill someone (specific)
    - - Conduct is harmless and would appear so to a person of normal understanding
      - No societal apprehension
  - - - (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
      - (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or
      - (c) purposely does or omits to do anything which, under the circumstances, as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
    - - (a) lying in wait, searching for or following the contemplated victim of the crime;
      - (b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;
      - (c) reconnoitering the place contemplated for the commission of the crime;
      - (d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;
      - (e) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances;
      - (f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;
      - (g) soliciting an innocent agent to engage in conduct constituting an element of the crime.
    - - Grades attempt, solicitation, and conspiracy at the same level as target offense
      - Common law focuses on how much is left to be accomplished
      - MPC focuses on how much has been done
      - “Substantial step” in furtherance of completion
      - Allows for renunciation defense
- - - - – the one who personally commits the offense
    - - – knowingly assists and is actually or constructively present during the commission of the offense
    - - – knowingly assists but is not actually or constructively present during the commission of the offense
    - - – knowingly assists a felon to avoid arrest, trial, or conviction. At common law, an accessory after the fact was treated as an accomplice in the commission of the crime. Today, accessory after the fact is a separate and lessor offense.
  - - - a person is not an accomplice unless her conduct in fact assists
    - - a person is guilty as an accomplice although her assistance was trivial. An accomplice is culpable even if the crime would have occurred without her assistance.
- - - - (c) the person is an accomplice of such other person in the commission of the offense.
    - - (a) with the purpose of promoting or facilitating the commission of the offense, the person:
        
        (i) solicits such other person to commit it; or
        
        (ii) aids or agrees or attempts to aid such other person in planning or committing it; or having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or
      - (b) his conduct is expressly declared by law to establish his complicity.
    - - (6) Unless otherwise provided by this code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:
        
        (c) the person terminates his or her complicity prior to the commission of the offense; and,
        
        (i) wholly deprives it of effectiveness in the commission of the offense, or
        
        (ii) gives timely warning to the law enforcement authorities or otherwise makes proper and substantial effort to prevent the commission of the offense.
  - - - Agrees to aid
      - Attempts to aid