Glossary of Crim Law Flashcards Outline 3
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- Actus Reus of Attempt
- i) Basic Rule: mere preparation is not sufficient (CL) (1) But where does preparation end and attempt begin? ii) Modern tests: (CL) (1) Physical proximity (2) Dangerous proximity (3) Probable desistence (4) Indispensable element (5) Unequivocality (6) Substantial test (MPC test)
- Modern tests: (CL) for the Actus Reus of Attempt
- (1) Physical proximity – overt act required for an attempt must be proximate to the completed crime (2) Dangerous proximity – the nearer the act to the crime, the stronger the case for calling the act an attempt(b) If you are observing the person about to commit the crime. “oh, really colse (3) Probable desistence – attempt is a step toward crime which goes beyond the point where a normal citizen would desist (4) Indispensable element – not attempt if D has not yet obtained control of indispensable element or tool needed for the crime (5) Unequivocality – attempt is committed when D’s conduct unambiguously manifests and an intent to commit the crime. (6) Substantial test (MPC test) – attempt occurs when D takes a substantial step toward commission of the crime – conduct must be corroborative of his criminal purpose
- Substantial test (MPC test) of the Modern test for attempt
- Substantial test (MPC test) – attempt occurs when D takes a substantial step toward commission of the crime – conduct must be corroborative of his criminal purpose (a) Model Penal Code (MPC) 5.01 (i) Attempt test. MPC 5.01: Criminal Attempt, Look at pp 1017. Examples of attempt: 1. Substantial steps are important: Conduct that may be held substantial step [“act or ommission constituting a substantial step in a course of conduct planned to culminate in his commission of his crime”]. The following are not found to be insufficient as to be a substantial step: a. Lying in wait, searching for or following the contemplated victim of the crime; b. Enticing c. Reconnoitering d. Unlawful entry e. Possession of materials f. Possession, collection or fabrication of materials g. Soliciting ETC: GO TO MPC TO FIND MORE DETAIL
- Mens Rea of Attempt (CL)
- i) Common Law: D must (1) Intentionally commit the actus reus of the attempt, (2) With the specific intent to commit the target offense. (a) Note: Attempt is a specific intent crime.
- Mens Rea of Attempt (MPC)
- (1) D purposely engages in conduct that would constitute the offense, OR (2) D acts with the purpose of causing or with the belief that it will cause the criminal result, OR (3) D purposely commits an act/omission constituting a substantial step in furtherance of the offense.
- Defenses to Attempt
- i) Impossibility ii) Abandonment Defense
- Defense of Impossibility for the crime of Attempt [CL Approach]
- Common Law Approach: factual impossibility is not a defense; legal impossibility is a defense (a) Factual Impossibility – D’s intended end is a crime but she fails to complete the offense because of a factual circumstance that is unknown to her or beyond her control (No defense for common law) (b) Legal Impossibility -- Two Parts (i) Pure Legal impossibility: D wants to violate the law, but there is not law prohibiting D’s behavior. (This is a defense in every jurisdiction) (ii) Hybrid legal impossibility; D’s goal is illegal but commission of the offense is impossible because of a mistake by D regarding the legal status of some factual (attendant) circumstances relevant to her conduct. (not a defense in MPC but is a defense in some jurisdictions today) Note: Legal Impossibility is a defense different from factual: The factual mistake is about the attendant circumstance of the statute than another situation, such as the gun not loaded
- Defense of Impossibility for the crime of Attempt [MPC approach]
- MPC Approach: only pure legal impossibility is a defense. (a) You can recognize the situation giving rise to the “true legal” impossibility defense by looking for situations where, even if facts are as D supposes them to be, no crime would have been c omitted. (b) So, guilty of attempt if his conduct… “Would constitute the crime if the attendant circumstances were as he believes them to be.” (i) Eliminates hybrid legal impossibility (but MPC allows pure legal impossibility as a defense.) (c) Note: most jurisdictions have moved toward the MPC.
- Defense of Abandonment for the crime of Attempt [CL]
- i) Common Law: Not Recognized
- Defense of Abandonment for the crime of Attempt [MPC]
- ii) MPC 5.01 (4): D not guilty of attempt if (1)D abandons her efforts to commit the crime or prevents it from being committed; AND (2)Her conduct manifests a complete and voluntary reunification of her criminal purpose. iii) MPC 5.01(4) (1) Defense of abandonment must arise out of internal rather than external motivations (a) Not that the security guards had real guns… (b) Under the MPC, this defense applies to all the inchoate crimes
- a) Note: Assault will not be tested on the exam. b) Assault = Attempted Battery. c) Battery = unlawful application of force to a person of another, willfully. d) MPC : 211.1 – Same level of proximity as attempt.
- a) Common Law: D intentionally invites, commands, requests or encourages another to engage in the conduct constituting a felony, or a misdemeanor specifically involving the breach of peace or obstruction of justice b) MPC: Broader than CL in that it applies to solicitation to commit a felony or any misdemeanor. . i) MPC: broader than CL. This does not have much meaning today in terms of modern practice.
- Solicitation, Actus Reus
- i) D communicates the words or performs the acdts that constitute the Invitation/command/request/encouragement of the other individual. (1) CL: Communication must reach the solicited party. D must asks the other to commit the crime, not merely assist in it ( D intends to stand in background, as in accomplice). (2) MPC: Unsuccessful attempts at communication suffice. It is enough for D to ask the other to e an accomplice.
- Solicitation, Mens Rea
- i) Common Law: solicitation is a SI crime. (1) Thus, D must commit the AR of solicitation with the specific intent that the other person commit the target offense ii) MPC: no SI/GI distinction. D is guilty if acts with the purpose of promoting or facilitating the commission of the target offense.
- Defense of abandonment for solicitation..
- (1) Abandonment for solictiaont. Is available as a defense under the MPC but not the common law. MPC 5.02 (3). A person is not guilty of solcitiaotni and renounce the attempt and the prevent them or to convince them to not commit the crime. Calling the cops on them generally suffices.
- Conspiracy [Definition]
- a) Definition [CL by default, since she did not give MPC] i) A conspiracy is an agreement between two or more people to commit an unlawful act or multiple unlawful acts together (1) Agreement = parties understand they are working together toward mutual or common purpose. (a) An implied agreement suffices!
- Conspiracy [Actus Reus]
- i) Common Law: D guilty as soon as agreement to commit the unlawful act is made. ii) Traditional CL: object of agreement need not be criminal. iii) Majority rule today: object must be criminal. (1) Some states have statues that also require an overt act in furtherance of the offense. Any act will do -- need not be a significant/ substantial one. (2) Plurality requirement (2 or more people must have the requisite MR) (a) Majority rule – not required. (b) Minority rule – required. iv) MPC: The “unlawful act” must be a crime. v) Overt act is needed except for felonies in the 1st and 2nd degree vi) No plurality requirement.
- Conspiracy [Mens Rea]
- i) Common Law: a specific-intent crime. (1) Thus, Ds must intend to agree (AR) and intend that the goals of their agreement be achieved. ii) MPC: no SI/GI distinction. D is guilty of acts with the “purpose of promoting or facilitating” the commission of the conduct that constitutes a crime …. [see MPC 5.03]
- Three ways of knowing when intent can be inferred from knowledge.
- (a) D has acquired a stake in the venture (b) There Is no legitimate use of the services provided (c) The volume of your business is disproportionably gigantic compared to how it would be used for legitimate non legal uses. i) People v. Lauria: Telephone answering services that hookers used to solicit clients. Conspiracy? The intent of a supplier who knows his supplies will be put to criminal use may be established by (1) direct evidence that he intends to participate, or (2) through an interference that he intends to participate based on (a) his special interest in the activity, or (b) the felonious nature of the crime itself.
- [Solicitation, Conspiracy, attempt and target offense] Tying things together…
- a) Solicitation ==>Conspiracy (if agree) ==>attempt ==>target offense. b) As someone to commit the crime for you, you open the door for all kinds of criminal liability.
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