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#Post#: 63--------------------------------------------------
Criminal Procedure Outline
By: kangaroo Date: February 17, 2011, 9:42 pm
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I. Criminal Procedure
a. Initial Appearance (in a municipal court, jurisdiction only
over misdemeanors)
i. Notice of Charge
ii. Rights Read
iii. Lawyer Appointed
iv. Plea Entered (but no jurisdiction)
v. Misdemeanor? judge may immediately try
b. Preliminary Hearing
i. Prosecution must present probable cause
1. Yes: probable cause
a. (bound over to) Grand Jury
b. bail set
i. “bail bond” = money given to court (10% of bail?) to assure
appearance,
ii. if no appearance, Δ responsible for all of bail.
iii. If appear, most of bond returned to Δ.
2. No:  dismissed
ii. No double Jeopardy until after trial!
c. Grand Jury
i. Investigates Crime (subpoena, questions, etc)
ii. Δ has no right to remain silent (no 5th amend here)
iii. Decides if probable cause exists:
1. no = “no bill”  dismissed?
2. yes = “true bill”
d. Indictment, Arraignment
i. Served with copy of indictment
ii. Told of rights (takes place in court with jurisdiction)
iii. Plea is taken (for real this time)
1. Must know of rights before making plea
2. Not Guilty
a. Negotiations
b. Judge/jury trial decided
c. Jury selection
d. Location of trial
e. Charges, conspirators, etc…
f. Bargaining
g. Motions in limine (rules on evidence permissibility)
h. No dispositions in discovery!
i. Defense doesn’t get much in discovery (gets bill of
particulars, copies of Δ’s statements and records)
3. Guilty  gives up all rights
4. Nolo contendere (no contest  guilty, but cannot use
this case in future hearings)
II. Structure and Theory of Criminal Law
a. Legality
i. Jurisdiction
ii. Venue
iii. Statutes of Limitation
iv. Constitutional Constraints (Can intrude on a fundamental
right IF Compelling state interest)
1. Due Process (14th amendment must give notice)
a. Vagueness
b. Overbroad = overlaps into areas protected by constitution
2. Equal Protection (14th amendment)
a. Discretion
i. Police use discretion in who to charge & how
ii. Prosecutor uses discretion in who to prosecute
3. 1st Amendment
4. Privacy (not in bill of rights, but is the core of the bill
of rights)
5. 8th Amendment: Cruel and unusual punishment
b. Jurisdiction
c. Punishment and Corrections
i. Deterrence
1. For particular criminal
2. For future offences of all criminals
ii. Retribution
iii. Incapacitation / restraint
iv. Rehabilitation
d. Acts & Omissions
e. Mental State (Free Will?)
f. Attempts and Complicity
g. Excuse & Justification
III. Components of a Crime
a. Mental State
i. Mens Rea  culpable mental state (in decreasing order
of mens rea)
1. Purposefully: person acts purposefully toward element of a
crime if:
a. Conscious conduct to act in the nature of the crime OR
b. Conscious object of conduct to cause the result AND
c. The element involves attendant circumstances, Δ knows,
believes, or hopes that circumstances exist.
2. Knowingly: person acts knowingly toward element of a crime
if:
a. If element involves nature of conduct, Δ is aware that
conduct is of that nature AND
b. If element involves result of conduct, Δ is aware that
it is practically certain that conduct will cause those results.
3. Recklessly: person acts recklessly if:
a. Consciously disregards a substantial and unjustifiable risk
resulting from conduct
b. Risk must be to a degree that conduct involves gross
deviation from the standard of conduct that a law-abiding person
would observe
4. Negligently: person acts negligently if:
a. Should be aware of the substantial and unjustifiable risk
b. Failure to perceive risk is a gross deviation from the
standard of care of a RPUC
5. Knew or Should Have Known: “Gun in handbag case”
6. Intoxication
a. Can consider intoxication in “specific intent” crimes
i. Purposefully
ii. Knowingly
b. Cannot consider intoxication in “general intent” crimes
i. Recklessly
ii. Negligently
iii. Knew or should have known
c. Must give clear jury instructions
ii. Specific Intent
1. Definition: Δ desired to do something beyond the act
that was a crime.
2. Some J’s: can use intoxication as a defense.
iii. General Intent
1. Definition: Δ desired to commit the act that was a crime
2. Cannot use intoxication as a defense
3. Can be established by presumption
iv. Strict Liability:  No Mens Rea Needed!  not
favored
v. Mistake
1. Mistake of Law
a. Need Honest and Reasonable belief in mistake of law
b. Malum in se: Wrong in and of itself: common-law crimes
(unconstitutional if not written)
c. Malum prohibitum: Wrong in statute only
d. Ignorance of the law is no excuse
e. Defense: No Notice
i. Reliance on invalid statute
ii. Reliance on judicial decision
iii. Reliance on administrative order
iv. Reliance on official interpretation
v. Probable Cause problem
vi. Desuetude: Law slept so ling that it died
vii. No opportunity to comply with the law is given after notice
is given
viii. No showing of probability of knowledge of statute
f. Δ Must prove mistake beyond a preponderance of the
evidence (>50%)
2. Mistake of Fact
a. Need Honest and Reasonable belief in mistake of fact in some
jurisdictions (majority: honest mistake is sufficient to negate
an element of mens rea)
i. Specific intent need honest
ii. General intent need honest and reasonable
b. Ignorance of fact is accepted in most courts as a defense
i. In situations where Mens Rea is “Willful”
ii. Or reliance on official interpretations of the law
1. atty general
2. official comments to statute
c. Willful blindness is NOT lack of knowledge
i. MPC: knowledge is established if a person is aware of a high
probability of its existence, unless he actually believes that
it does not exist.
b. Act (Actus Reus)
i. Must be a voluntary act/omission AND proved beyond a
reasonable doubt
1. Not voluntary act:
a. reflex/convulsion,
b. during hypnosis,
c. movement while unconscious,
d. not a product of effort or determination of the actor
2. Liability for commission of offense may not be based on an
omission unless unaccompanied by action unless:
a. Omission is expressly made sufficient by law defining offense
OR
b. Duty to perform the act is otherwise imposed by law OR
c. Duty by contract
d. Putting victim in peril
ii. Act is not required to happen at same time as injury
(epileptic driver)
c. Harm
d. Causation
i. Cause in fact (but for)
ii. Proximate cause
1. no superseding cause to break chain of causation (need all
three)
a. independent
b. intervening
c. unforeseeable
i. protection of property is foreseeable
ii. medical gross negligence is unforeseeable
iii. medical negligence is foreseeable
e. Concurrence
IV. Strict Liability – no mens rea requirement. Culpable even
if honest and reasonable belief that act was proper
a. Public Welfare Offenses – health and safety statutes
i. Highly regulated industry
ii. Affects public welfare
iii. No mens rea requirement
iv. Light penalties & large number of prosecutions
b. Morality Offenses
i. Statutory rape
ii. Bigamy
iii. Adultery
c. Disfavored. Presumption is no strict liability
d. Vicarious liability – culpable for the crimes of another
e. Defenses: cannot use mistake or ignorance of fact. Can
challenge voluntary actus reus
V. Rape – unlawful sexual intercourse without consent by force,
fear, or fraud.
a. Sexual intercourse – slightest penetration
b. Unlawful – traditionally, not between husband and wife
c. Without consent – Δ must be aware that he is acting
without consent
i. Resistance = proof of non-consent
ii. Victims who cannot give consent
1. statutory rape (minor)
2. mentally incompetent
3. unconscious victim
4. deception by Δ
d. By force, fear or fraud
VI. Statutory Construction and Interpretation
a. Can look to common law for interpretation of the statute.
b. Use of Canons of Construction: Find intent of the legislature
c. Plain Language
i. For plain language, court must uphold or
ii. Unless oppressive, unjust or absurd in result.
d. Implied Exceptions and Obvious Mistakes
e. Strict Construction of Criminal Statutes  strictly
construed in favor of the Δ (principle of lenity)
f. Legislative History  look to debates and legislative
records
g. Order of Terms
h. Title of the Statute
i. “Striking Change of Expression”  different terms used
for a reason, must mean different things
j. Ejusdem Generis  list of specifics followed by a
general “catch-all phrase”
k. Expressio Unius, Exclusio Alterius
l. The Special Controls the General, The Later Controls the
Earlier
i. Two statutes that cover the same subject matter, face in
opposing directions.
ii. Statute passed later in date controls the statute passed
earlier.
iii. The special statute (more specific) controls the act more
than does the general statute.
m. Administrative Interpretation  statutes interpreted
by the officials charged with administering the statute receive
that interpretation.
n. Borrowed Statutes  look to interpretation of the body
from which the statute is borrowed.
o. Ex Post Facto
i. Cannot hurt a criminal (at time of act)
ii. Savings clause – if actions violate statute when convicted,
cannot be saved by new statute
VII. HOMICIDE (criminal homicide is purposefully, knowingly,
recklessly or negligently causes death of another)
a. Pennsylvania Scheme
i. Murder
1. 1st degree = intentional
2. 2nd degree = felony murder
3. 3rd degree = all other killings with malice
ii. Manslaughter
1. voluntary = provocation or imperfect defense
2. Involuntary = reckless, grossly negligent or during a
misdemeanor
iii. Causing suicide = intentional with duress or deception
iv. Aiding suicide = intentional (misdemeanor)
b. Murder (Malice)
i. MPC Murder
1. Committed purposefully or knowingly
2. Committed recklessly under extreme circumstances manifesting
extreme indifference to human life. Assumed if committed (or
attempting to commit) during robbery, rape (or other sex
offense), arson, burglary, kidnapping, or felonious escape
ii. Malice (knowingly, purposefully, knowingly cause death,
serious bodily harm)
1. Express
a. Words/Writings
b. Derived from evidence
2. Implied
a. Implied Malice
i. Formulation 1: Berry
1. Actual awareness of danger of behavior
a. Objective risk of danger AND
b. Subjective risk of danger
2. Uncalled-for act (base antisocial act)
3. Wanton disregard for life
ii. Formulation 2: Whitfield
1. Intentional act
2. natural consequence of act is danger to human life
3. act is deliberately preferred w/knowledge and disregard for
human life
b. Felony-Murder  allows implied malice where killing
accompanies felony
i. Felony must be inherently dangerous to life AND
ii. Killing must take place during felony
1. reasonably foreseeable that a life may be taken
2. Felony and killing must have a separate purpose
iii. Does NOT extend if killing is directly attributed to act of
another
iv. MPC Felony-Murder
1. felony must be dangerous to life in the abstract
2. killing must be natural and probable consequence of felony
3. death must be proximately caused
4. felony must be malum in se
5. the act must be a common-law felony
6. narrowly construe period during which felony is committed
7. underling felony must be independent of the homicide
c. Intent implied
i. Intent to do serious bodily harm
ii. Wanton, reckless, depraved heart bent on evil mischief
iii. TRANSFERRED INTENT: if intent of felony, but at person
other than victim, intent may be transferred to the victim
d. Murder itself is not enough to establish Malice
iii. 1st Degree  Voluntary
1. Premeditation: Process of thinking/planning the killing (or
infliction of serious bodily injury)
2. Deliberation: weighing out, coolly reflecting
a. Planning Activities
b. Prior Relationships (Motive?)
c. Manner of the killing
iv. 2nd Degree  Involuntary
c. Manslaughter (No Malice)
i. MPC
1. Committed recklessly OR
2. Murder committed under extreme mental or emotional
disturbance (EED) for which there is reasonable explanation.
Reasonableness from Reasonable person in actors circumstances as
actor believes them to be.
ii. Voluntary
1. Provocation replaces malice. Need All Three:
a. Provocation (objective)
i. Adequate
ii. Sufficient
iii. “mere words” enough?
b. Heat of passion (subjective)
c. No reasonable cooling period (objective)
i. Length of time does not need be considered
iii. Involuntary (recklessly)
1. Lawful act done in Unlawful Manner
2. Unlawful act  misdemeanor
iv. Misdemeanor-manslaughter  killing committed during
unlawful act without due caution.
1. Proximate Cause limit – must be a causal connection between
the misdemeanor and the death
2. Must be Malum in Se for misdemeanor-manslaughter
d. Negligent Homicide????
i. MPC
1. Committed Negligently
e. Unintentional Killing
i. MPC
1. Criminal Homicide
a. Purposely, knowingly, recklessly or negligently causes death
of another human
b.  murder, manslaughter, or negligent homicide
2. Negligent Homicide
a. Negligent killing of another (need gross negligence)
b.  3rd degree felony
3. Intoxication
a. Only used for culpable mental state of reckless and negligent
b. Keep for purposefully and knowingly
c.  don’t consider intoxication for reckless and
negligent
4. Depraved indifference to human life
5. Grave risk of serious bodily harm or death
f. Culpability – Causation
i. Shortening of life IS culpable for homicide
1. UNLESS: other than Δ initiated chain of events leading
to victims death
2. Balance chain of events, time of expected life, and social
utility of second cause of death
ii. Suicide – is a natural and foreseeable result of Δ’s
acts?
1. weigh public interest and Δ’s act, foreseeablility of
suicide as a result
2. Δ actually knows that acts will lead to suicide?
iii. Assisted suicide?
1. If suicide is self-murder, then assisted suicide is a crime
iv. Unexpected consequences
1. If voluntarily intoxicated  driving, already culpable
2. Chain of events – did Δ initiate a chain of events
leading to death of victim? But For?
v. Proximate Cause (Chain of Events) broken if:
1. Intervening, AND
a. Appearant safety doctrine IS intervening
2. Independent , AND
3. Unforeseeable
a. Negligence is foreseeable
vi. MPC Causation:
1. Conduct IS cause of result when:
a. Antecedent But For cause AND
b. Relationship between cause and result satisfy additional
requirements:
2. If Purposefully or Knowingly is element, element is NOT
satisfied if result is not in actual contemplation of actor
UNLESS:
a. Only difference in result from contemplation is Person,
Property, or that harm contemplated is more serious than the
actual harm done OR
b. Actual result involves same kind of injury contemplated and
is not too remote to have an unjust bearing on Δ’s
culpability
3. If Recklessly or Negligently, element is not established if
actual result is not within the risk that the actor is aware, or
in negligence that he should be aware UNLESS:
a. Only difference in result from contemplation is Person,
Property, or that harm contemplated is more serious than the
actual harm done OR
b. Actual result involves same kind of injury contemplated and
is not too remote to have an unjust bearing on Δ’s
culpability
4. If causing a particular result is a material element for
which absolute liability is imposed, it is NOT established
unless actual result is probable consequence of the actor’s
conduct.
VIII. Burglary
a. Common Law – the breaking and entering of the dwelling of
another at night with intent to commit a felony therein
i. Breaking
1. an opening must be created by the burglar
2. leaving door or window open does not count
3. invitation does not count
ii. Entry
1. any part of Δ’s anatomy to enter the structure
2. for any amount of time
iii. Dwelling of another
1. most states, a car counts
iv. Nighttime
1. most states, does not have to be at night
v. Intent to commit a felony
1. most states, must only have intent to commit a crime
b. MPC 221– the entry into any structure for the purpose of
committing a crime therein.
i. Graded for: nighttime
IX. Burden of Proof
a. Reasonable Doubt
i. Prosecution has burden to prove Each Element of the crime
beyond reasonable doubt
b. Defendant’s burden
i. In affirmative defenses, has burden of preponderance of
evidence
ii. If affirmative defenses have element in common with crime,
prosecution has burden of proof
c. Legislature cannot circumvent burden to be proven by reducing
the elements of a crime
X. Responsibility
a. Competency – must be competent to stand trial
b. Insanity
i. Hearing to determine insanity
1. Δ must prove by clear and convincing evidence
2. Danger to self or to others
ii. NGBI – not guilty by reason of insanity  involuntary
civil confinement
iii. GBMI – Guilty, but mentally insane
iv. Burden is on Δ to show insanity UNLESS it negates an
element of the crime
1. general presumption of sanity
v. Tests for insanity
1. M’Naghten (50% of states use) – Δ must show:
a. Δ suffers from a mental disease causing a defect in his
reasoning
b. As a result, Δ did not understand nature and quality of
act, or did not know that it was wrong
2. Irresistible Impulse –
a. Δ must show that he was unable to control his actions
b. No need to show knowledge of right/wrong or defect in
reasoning
3. Durham test
a. Δ must show that his act was the product of a mental
disease or mental defect
b. Broadest
4. MPC Test
a. As a result of Δ’s mental disease or defect
b. Δ lacks substantial capacity to
i. appreciate that act is criminal OR
ii. conform conduct to requirements of the law
vi. Conduct that shows Δ understands that acts are wrong:
1. conceal evidence
2. plan to escape
3. Δ’s own statements
4. call police
5. remorse
6. nature of delusion
c. Justification/excuse
i. Justification – Lawful act b/c avoid greater harm/evil
1. Necessity – no outside force
a. Balance Bad from crime with
b. Act of greater evil
c. Self Defense – imperfect self defense may be used to mitigate
to manslaughter
i. Δ has honest and reasonable fear of death or serious
bodily harm
1. reasonable person in Δ’s situation – objective
2. Honest fear
ii. Perceived threat is unlawful and immediate
1. trend to recognize battered wife syndrome as immediate
2. no preemptive strikes
iii. No excessive force
iv. Δ is not initial agressor
v. Δ must retreat before using deadly force
1. UNLESS in own home
a. UNLESS perpetrator is spouse – legally resident of home
d. MPC Self Defense: Allows for self defense when actor
believes that such force is immediately necessary for the
purpose of protecting against unlawful force
e. Defense of another
i. Majority: Reasonableness Standard (if Δ reasonably
believes that the use of force is justified)
ii. Minority: Alter-Ego (Δ must stand in shoes of 3rd
person, only get defense if self-defense is justified for the
person attacked)
f. Defense of property – deadly force not permissible for
protection of property
2. Duress - 3rd party presents evil
a. Factors:
i. Immediate threat (death or serious bodily harm)
ii. Against Δ or close friend or relative
iii. Ordinary person standard – ordinary person would yield
iv. Well-grounded fear that the threat will be carried out
v. No reasonable opportunity for escape
vi. Δ did not put himself in the situation
vii. NOT FOR HOMICIDE
b. MPC Duress:
i. Coerced by unlawful force (threat)
ii. Unable to resist (objective standard – person of reasonable
firmness)
iii. Against self or other
iv. Δ cannot have placed himself in the position recklessly
or negligently
v. AVALIABLE FOR HOMICIDE
vi. Can use Duress with other justification
3. Consent – victim consented to the crime
a. Cannot consent to assault/battery
i. if not normal person, cannot give consent
ii. “normal” person would not give consent to serious bodily
harm, requiring:
1. mental illness/hospitalization
2. physical risk/death
3. permanent incapacity
4. permanent disfigurement
5. temporary disfigurement
6. acute pain  substantial suffering
b. Otherwise, absolute defense
i. Negates an element of the offense
ii. Avoids the infliction of harm/evil sought to be precluded by
the law outlining the offense
iii. Lawful athletic contest is consent
4. Entrapment – rests in constitutional due process violation
a. Objective standard – conduct that would induce an innocent
person of reasonable strength to commit a crime  dismiss
as a matter of law
b. Subjective standard – question of fact – whether Δ was
predisposed to commit the crime (mens rea test) – difficult to
prove that Δ is predisposed.
c. MPC
i. Official cannot encourage criminal behavior by:
1. making knowingly false statements designed to induce behavior
or:
2. employing methods that would induce a person to commit the
crime who is not ready to commit it
ii. Δ must prove by a preponderance of the evidence
(affirmitive defense) – no jury
iii. No entrapment defense if causing or threatening bodily
injury
ii. Excuse – unlawful act but not responsible for the act –
freedom of choice is impair
1. Compulsion
a. Not available for intentional killings
b. Is available for felony part of felony murder
c. Factors:
i. Δ acted under compulsion or threat
ii. Of immediate infliction of death or serious bodily injury
iii. Δ reasonably believed that death or serious bodily
injury would result on:
1. self
2. spouse
3. family
d. 5-part test for defense of compulsion in escape
i. threats of imminent death/harm
ii. no time to complain to authorities, or futile to complain
iii. no time/opportunity for court action
iv. no force or violence used in escape
v. report to authorities when safe
vi. SPLIT: need all 5? (some yes, some no)
d. Diminished Capacity
i. Insanity supersedes Diminished Capacity
ii. May be used to reduce the crime (1o murder to 2o)
iii. IF element of crime, state has burden to show Δ had
that element. If not, burden on Δ
iv. Line Drawing
1. Age: <7  no intent, 7<x<14  presume no
capacity, >14  presume responsibility
e. Constitutional Safeguards
i. 5th/14th amends – due process
1. more than one branch must decide competency/insanity (not
just governors office)
2. Δ must be allowed to deny/rebut/explain and offer
evidence
3. Δ must be given notice
4. IF examinations by state, statements made by Δ in
examination cannot be used for self-incrimination
ii. 8th – cruel and unusual Punishment
1. S CT. does NOT allow execution of insane/mentally ill
XI. Inchoate Crimes
a. Attempts – separate crime, Δ punishable for trying to
commit a crime
i. Mens Rea: need same mental state as required for the crime
(specific – need to intend the results of the actions) 
must intend to commit intended goal – intend bodily harm is not
attempted homicide
ii. Act:
1. purposefully acts so as to constitute the crime in subjective
circumstances OR
2. does or omits anything with purpose of causing, or belief of
causing the result without further conduct OR
3. purposefully commits substantial step (acts strongly
corroborative of actors criminal purpose)
a. lie in wait, search for, entice victim
b. possession (list see p. 636)
c. Difference between collecting and discharging forces (no
substantial step until discharge of forces)
d. Some jurisdictions require “last step” for attempt
e. Solicitation
i. Within purposes of crime, Δ commands, encourages, or
requests another to engage in specific conduct which would
constitute such crime or attempt to commit such crime
ii. Affirmative defense that after solicitation, Δ
persuaded other not to do so, under complete and voluntary
abandonment
iii. Abandonment – affirmative defense – policy = encourage
criminals to not commit the crime
1. Complete, voluntary renunciation of the criminal purpose
2. not voluntary if motivated by circumstances that increase
probability of detection/apprehension, or make accomplishment
more difficult.
iv. Renunciation – complete and voluntary renunciation of
criminal purpose
1. affirmative defense that abandoned effort to commit a crime
OR
2. prevented its commission.
3. Must be complete and voluntary.
4. Does not affect culpability of accomplice
v. Impossibility (MPC – only inherent impossibility is a
defense)
1. Factual impossibility is not a defense to attempt
a. Extrinsic fact unknown to Δ that prevents commission of
the crime
b. If failure is due to facts beyond Δ’s knowledge, no
defense
c. Apparent present ability in Δ’s mind is still there
2. Inherent Impossibility  Δ will fail b/c means
chosen are inadequate (reasonable person would not believe that
act is at all likely to result in the ends charged – voodoo
dolls)
3. Legal Impossibility – Δ thinks he is breaking the law,
and does everything he can to break law, but there is no law,
there is no culpability
b. Conspiracy – Separate offense (may be held culpable for both
- jurisdictional) – need at least one other person (agreement
between two or more persons to commit an unlawful act or a
lawful act in an unlawful manner) – greater potential for harm
i. Mens Rea: Purpose of facilitating the commission of a crime
1. intent to agree
2. purpose to have the crime succeed
a. may be inferred from facts
ii. Act (any overt act – don’t need even a substantial step)
 only one conspirator needs to commit the overt act
1. agrees with other person(s) that one or more of them will
engage in conduct which constitutes a crime OR
2. agrees to aid others in the planning or commission of the
crime or an attempt or solicitation of the crime
iii. Expansiveness: All individuals can be held culpable for
crimes being committed in conspiracy after time of joining –
must be acts in furtherance of the conspiracy committed by one
member, imputed to others
1. Chain type – ends don’t know each other
2. Spokes of wheel – hub and spokes. Need rim and
interdependency to make it work and be culpable together
3. Pinkerton – no need for foreseeability
4. Acts must be foreseeable to be imputed to others
iv. Termination: When all objectives are reached, or all
abandon.
v. Affirmative defense that actor thwarted the success of the
conspiracy, must be complete and voluntary
vi. Policy – easier to convict of conspiracy, and higher
sentences because of increased likelihood of danger and harm.
vii. Defenses to Conspiracy:
1. Abandonment – all must abandon, Δ only culpable of
crimes committed when conspiracy was on
2. Withdrawal – culpable for conspiracy, but not for resulting
crimes
3. MPC:
a. Withdrawal – notify co-conspirators that Δ withdrawals,
or notifies authorities, not responsible for ongoing acts
b. Renunciation – successfully thwart success of conspiracy,
also escape liability
4. Wharton’s Rule: If crime can only be committed by one
person, no conspiracy is possible (Mann act case)
c. Solicitation – recruiting, encouraging, directing,
counseling, inducing another person to commit a crime
i. Mens Rea – specific intent crime – purpose to promote or
facilitate the commission of a substantive offense
ii. Actus Reus – can be merely verbal – commands, encourages,
requests another to engage in criminal conduct
iii. Defense: Renunciation (by MPC)
d. Attempt-like crimes
e. Statutory
f. Grading
i. Solicitation, Attempt, and Conspiracy are of the same grade
as the crime attempted. If the crime is a first degree felony,
then the attempt, solicitation, conspiracy is a second degree
felony
ii. Mitigation – if solicitation or conspiracy is so inherently
unlikely to result in the crime, the Court Shall impose a
sentence of lower grade, or may dismiss
iii. Multiple convictions – No multiple convictions for conduct
designed to commit or to culminate in the commission of the same
crime. (choose one)
iv. Conspiracy – may be viewed as more serious as the crime
committed/attempted
g. Complicity
i. Unlawful Agreement need:
1. knowledge AND
2. intent to participate in the conspiracy
a. direct evidence of intent
b. circumstantial evidence to infer intent (supplier)
i. Δ acquired a stake in the venture (inflated prices)
ii. No legitimate use for the good/service (disproportionate
quantities sold)
iii. Δ has knowledge that the good/service is used for
serious crime
ii. Aiding and abetting
1. common law
a. principal in first degree – immediate perpetrator of crime
b. principal in second degree – abettor – aided or encouraged
without directly participating
c. accessory before fact – aided without being constructively
present
d. accessory after fact – knowingly assisted to escape or avoid
punishment
2. MPC
a. Lagally accountable to another
i. Causes an innocent/irresponsible person to engage in offense
ii. By code
iii. Accomplice
b. Accomplice
i. With purpose of promoting or facilitating:
1. solicits another to commit
2. aids in planning or committing
3. fails to prevent (need duty)
ii. by law conduct to establish complicity
c. not an accomplice if
i. victim
ii. inevitably incident
iii. terminates prior to commission AND
1. deprives effectiveness or
2. gives warning
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