Table of contents criminal Law Outline

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Held, an accused must have been caught within the physical proximity of the place where he intended to commit the crime in order to be convicted of attempt

There must be a “dangerous proximity to success” in order to convict of attempt. In this case, D and the others had not found Rao, nor was there any indication that the payroll had even been withdrawn from the bank when D’s were arrested. D’s were seeking an opportunity for robbery but the opportunity never came. This evidence is insufficient to support the conviction.

MPC Approach – 5.01(2) – (414)

General
1. More than half the courts use it
Test
1. The D must take a “substantial step strongly corroborative of the actor’s criminal purpose.”
2. Also, listing of certain acts that per se satisfy attempt’s actus reus requirements:
  1. Lying in wait, searching for or following the contemplated victim of the crime
  2. Enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission
  3. Reconnoitering the place contemplated for the commission of the crime
  4. Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed.
  5. 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 pupose of the actor under the circumstances
  6. 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
  7. Soliciting an innocent agent to engage in conduct constituting an element of the crime
Criticisms: The MPC standard can still lead to arbitrary decisions and allows a D’s intent to establish both the mens rea and actus rea for the attempt.
MPC v. Common Law: MPC attaches liability earlier in the sequence of evetns than most common law approaches, but mitigates its harshness through the abandonment defense

Defenses to Attempt

General
1. The elements of the crime have not been proven (main defense)
Abandonment/Renunciation
1. General
  1. A D who repents and deserts efforts to commit a crime may try to raise the defense of abandonment
    1. Common Law didn’t recognize abandonment. This was b/c at common law a D was not guilty of an offense until he had almost completed the crime, and therefore by that time it was unlikely he would undergo a change of heart.
2. Modern Laws and MPC – 5.01(4), etc. (415, 474)
  1. Must have “a complete and voluntary renunciation of the D’s criminal purpose.”
    1. Complete
      1. D must not be motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another prospective victim.
    2. Voluntary
      1. A fear of getting caught cannot, in whole or in part, motivate the D. It is also no voluntary renunciation if someone else prevents the D from completing the crime.
      2. To be voluntary, D must have had a complete change of heart
3. Stewart v. State
  1. D entered a service station and began armed robbery by demanding money fo the service station operatior. Shortly thereafter D saw several policemen enter the station. D abandoned his plan for robbery and began looking as if he were purchasing oil. D was convicted of attempted robbery.
  2. Held, once an attempt has been accomplished, an offender may not abandon the crime
    1. Once the attempt has already begun, attempted robbery is a completed crime. Had D abandoned the plan prior to entering the station, he would probably have been acquitted; however, once overt acts constituting attempt to commit a crime have been committed, no amount of abandonment is exculpatory, particularly in light of the fact the police officers are nearby.
4. State v. Peterson
  1. D urged Anderson to burn her house for her for insurance money. Before Anderson burned the house, D asked him not to burn it after all. Anderson burned it anyway. D was tried and convicted of Arson.
  2. Held, a solicitor may avoid criminal liability by trying to dissuade the actual perpetrator from committing the offense before he commits it.
    1. While anyone who solicits another to do a crime is guilty of that crime if the other person commits it, the solicitor may exculpate herself from the crime by effective and timely communication of the desire that the other not commit the crime. Here, D communicated to Anderson her desire that he not pursue the crime. Anderson thereafter acted on his own.
Impossibility
1. General
  1. D has done everything possible to commit a crime, but unexpected factual or legal circumstances prevent the crime from occurring
2. Factual Impossibility
  1. Even though most cases can be categorized as either factual or legal impossibility, typically the following situations are treated as factual impossibility:
    1. Pickpocket trying to pick an empty pocket
    2. Shooting a weapon that is defective and incapable of firing
    3. Trying to infect another with a disease even though it turns out the D is not infected
    4. Shooting at a victim’s home when the victim isn’t present
    5. Having sexual intercourse with a woman who, unbeknownst to the D, is already deceased
  2. In these cases, the court asks the question “Had the circumstances been as D believed them to be, would there have been a crime?”
    1. If the answer is yes, D is guilty of attempt and impossibility is NOT a defense
  3. State v. Mitchell
    1. D armed himself, went to the house, and shot through the window into Warren’s bed where he believed Warren was sleeping. In fact, Warren was upstairs.
    2. Held, can a conviction of attempted murder be sustained if the victim was not where the accused thought he was when the attempt was made.
      1. D had the intent to kill, the capacity to kill, and committed an overt act. Had the facts been as he supposed, he would have successfully completed the crime of murder. Therefore, he is guilty of attempted murder
  4. Preddy v Commonwealth
    1. D, an old man, attempted to rape a woman. Because of his age, D was impotent and was unable to complete the crime (an element of rape is penetration). At D’s trial, the judge instructed the jury that impotence was no defense to the charge, and D appealed conviction.
    2. Held, even if a person is physically incapable of committing a crime, he may still be guilty of attempting to commit that crime.
      1. If one has the apparent capability of committing a crime, he can be guilty of attempt. The only incapacity recognized as a defense is juridical incapacity, such as infancy. A boy under 14 years old is legally incapable of committing rape, so he could not be guilty of attempt. This case presents a question of alleged physical incapacity. There are no presumption than at an adult cannot commit rape.
      2. Impotence is a defense to the completed crime, but not to the attempt.
3. Legal Impossibility
  1. General
    1. In situations where the court does not want to impose criminal liability, it may label the situation as “legal impossibility.”
  2. True legal impossibility
    1. General
      1. When D consciously tries to violate the law but there is no law prohibiting his behavior; and
    2. Situations:
      1. General
        
        Few legal impossibility situations exist
        
        This is a FULL DEFENSE because even if D wanted to do something bad, there is not law against it
      2. Defendant performs an abortion she believes to be unlawful. In fact, it is legal in that jurisdiction.
      3. D tries to smoke marijuana believing it is illegal to do so. In fact, there is no law against smoking marijuana.
      4. D takes a tax deduction that she believes is illegal. However, it’s legal.
      5. D has sex with a minor believing it is statutory rape. However, there is not law against it in this jurisdiction.
  3. Hybrid Legal Impossibility
    1. D’s conduct might otherwise violate the law, but he makes a mistake as to the legal status of some aspect of his conduct
    2. Situations:
      1. General
        
        In this situation, the “fact” that the D gets wrong is the legal status of some of the circumstances related to his conduct.
        
        This is a FULL DEFENSE
      2. Situations:
        
        Receiving unstolen property the D mistakenly believes is stolen.
        
        Shooting at a corpse D mistakenly believes to be alive. In order for there to be the crime of murder, there must have been a live human being who was killed. D’s mistake as to the legal status of his victim makes it impossible for him to complete the crime.
        
        Trying ot hunt a deer out of season but mistakenly shooting a stuffed deer. It is out of season but shooting a dead deer does not fall under the prohibition of the law
    3. People v. Rojas
      1. Hall had stolen electrical conduit and arranged to sell it to D’s, who knew it was stolen. Hall was arrested but the police allowed him to leave the goods in a truck for D’s to pick up. One D drove the truck away and was arrested the next day when he was unlading the truck. D’s were convicted of receiving stolen property, and they now appeal.
      2. Held, a person who receives property he believes to be stolen may be convicted of attempt to receive stolen property, when the property is actually under police control.
        
        If the police have possession of the property, it clearly is not stolen. Therefore, the elements of the offense cannot be proved, and D’s were improperly convicted of receiving stolen property.
        
        In People v. Jaffe, the court held that there could be no attempt to receive stolen property if the property had frist been recovered by the police. That case has been criticized and will not be followed in this state. The criminality of D’s conduct is not destroyed by the fact that the police recovered the property before D’s received it believing it wsa stolen. The fortunate detection by the police should not wipe out D’s culpability.
        
        D’s appeal is disposed of by modifying the finding that D’s are guilty as charged to a determination that they are guilty of attempt to receive stolen property.
  4. Confusion in applying factual impossibility and legal impossibility labels.
    1. For all of the above situations, courts use the label of “legal impossibility” because D’s behavior is not dangerous enough to punish. However, in theory these situations could as easily be labeled as “factual impossibility” and the D’s could be convicted of attempt
4. Alternative approach to impossibility issue
  1. Dangerous proximity test
    1. Some courts have abandoned the legal/factual impossibility test, and simply ask whether the defendant came dangerously close to doing harm. If a D shoots at the victim’s window, even if the victim isn’t home, D has come within dangerous proximity of causing substantial harm.
  2. Inherent Impossibility test
    1. If it is “inherently impossible” for the D to commit the crime, courts are more apt to recognize an impossibility defense. If a D attempts to kill someone through voodoo, and voodoo isn’t dangerous, so impossibility would be a defense.
5. MPC Approach
  1. MPC – 5.01 (414) – impossibility isn’t a defense
  2. Exception
    1. 5.05: in situations where an attempt is “so inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger,” the court has the discretion to mitigate the level of the crime or dismiss the prosecution.
    2. Also, the MPC recognizes that a D should not be punished unless the result he desires or intends constitutes a crime.

Punishment

Historically, attempt was only a misdemeanor, whereas today it may be a felony
1. However, most jurisdictions punish it less than the actual crime.
Majority Approach
1. Attempt carries less than the completed crime.
2. Rationale:
  1. D’s offense caused less harm to society than the completed offense, there is less demand for retribution. If deterrence is the goal, one must be wary of punishing differently for successful and unsuccessful efforts; the punishment would therefore eliminate any chance for the D to abandon the act prior to doing it.
Minority / MPC – 5.05(1)
1. Attempt is punishable exactly the same as the completed crime, except for crimes punishable by death or life imprisonment.
2. Rationale:
  1. Retribution focuses on the D’s intent, not on the success of the D’s effort. The D who attempts a crime intends the same amount of harm as one who is successful in his or her efforts and should receive equal punishments. A D’s punishment should not depend on good or bad luck. The D who attempts a crime must be deterred also; because they pose a danger to society.
Policy Considerations
1. Police Intervention
  1. If an attempt is not completed until the crime is nearly completed, it may be too late for the police to prevent harm.
  2. However, if an attempt is completed as soon as a D takes a step toward committing a crime, innocent people engaged in equivocal behavior may face punishment
2. Not Punishing Bad Thoughts
  1. Attempt law must require sufficient acts to prevent from punishing bad thoughts
3. Chance for Abandonment
  1. Punishment for conduct at too early a stage may leave little reason for a D to change his conduct
4. Certainty the D was going to commit the crime
  1. Problems of Proof support setting the mens rea requirement for attempt at a high level to ensure that Punishment is merited.

Merger

If the Attempt is successful, it merges with the substantive crime. CANT be guilty of both.

Attempted Assault

General
1. There is no uniform rule on whether a person may attempt to commit an assault. Many states hold that there is no such crime as attempted assault, on the theory that an attempt to attempt cannot be punished.
State v. Wilson
1. D threatened his wife then went to get a gun. Upon his return, his wife was safely behind doors. D was convicted of attempted assault. D appeals, claiming that because assault is attempted battery, attempted assault is an attempt to attempt, which can’t be a crime.
2. Held, attempted assault is a recognized offense.
  1. The crime of assault with a dangerous weapon is specifically defined by statute. No statute deals with an attempt to commit assault with a dangerous weapon, but there is a general attempt statute which makes an attempt to commit a crime punishable.
  2. An assault precedes a battery. If the offender has the present ability to inflict corporal injury, an assault is committed. If present ability is lacking, yet the conduct has exceeded mere preparation, it should be characterized as attempt. D here proceeded far beyond preparation.
  3. Although other courts and the commentators have rejected the offense of attempted assault, the Oregon legislature has permitted the courts to treat conduct which is short of statutory crimes as a crime. This includes attempt to commit an assault.

Solicitation

General
1. Solicitation is a separate crime from attempt.
2. Solicitation consists of recruiting, encouraging, directing, counseling, or inducing another person to commit a crime.
3. Even if no further steps are taken toward the commission of the crime, purposely promoting the commission of the crime is enough to constitute solicitation.
Elements
1. Actus Reus
  1. The actus reus of solicitation may be purely verbal. It includes any command, request, or encouragement to another to commit a crime.
2. Mens Rea
  1. Solicitation is a specific intent crime. The D must have the purpose to promote or facilitate the commission of a crime.
Independent Crime
1. State v. Blechman
  1. D counseled another to set fire to a building with the intent to defraud the insurer. D was tried and convicted of solicitation. D claims that b/c the building was never burned, no crime was committed.
  2. Held, a person may be convicted for solicitation even when the crime solicited was never committed.
    1. The act of solicitation is a crime in itself. No overt act, attempt, or any further step toward commission of the solicted offense is necessary to complete the crime.
Concurrence with Attempt
1. Solicitation can constitute a punishable attempt if it represents a “substantial step” toward the commission of the crime
Defenses
1. Abandonment
  1. Because solicitation is completed after the D makes initial contact, the defense of abandonment is generally not available.
2. Renunciation – MPC 5.02(3)
  1. The MPC recognizes an affirmative defense that the D, after soliciting another person to commit a crime, persuades that person to abort the plan or otherwise prevents the commission of the crime.
3. First Amendment
  1. Public Advocacy of violent acts may be constitutionally protected when the advocacy is not intended or likely to produce imminent lawless action.
MPC – 5.02(1)
1. Mens Rea: The actor’s purpose is to promote or facilitate the commission of the substantive offense
2. With such purpose, the D commands, encourages, or requests another person to engage in conduct that would constitute the crime, an attempt to commit it, or would establish the other person’s complicity in its commission or attempted commission
Differences between MPC and Common Law
1. The MPC applies the crime of solicitation to all crimes, not just specified felonies and serious misdemeanors
2. The MPC recognizes as solicitation a request that another commit an attempt
  1. Asking another to shoot at the victim even though the D knew the gun to be unloaded
3. The MPC applies the crime of solicitation to D’s who ask others to help them commit a crime, even though the soliciting D still plans to be the actual perpetrator of the offense.
4. The MPC recognizes as solicitation uncommunicated requests for assistance with a crime
  1. Writing to the other person, but not having the request delivered.

Ignorance or Mistake of Law

General
1. Mistake or ignorance of the law is generally NOT a defensne. The law presumes that everyone knows its requirements because the laws themselves are based upon the community standards of moral conduct
2. Rationale:
  1. Laws are based on society’s common consensus as to what is proper behavior. Thus, simply by living in society, a person has notice of what conduct is expected of him or her. To allow a defendant to claim a mistake of law defense would put a premium on ignorance of the law.
Exceptions
1. Three General Exceptions
  1. The D has been officially misled as to the law
  2. The D does not have the necessary mens rea for the crime because of her ignorance or mistake as to legal requirements
  3. The D has not received requisite knowledge of the law
2. D Misled by official authority – MPC 2.04(3)(b)
  1. Reliance on an invalid statute
    1. If the D relies on a statute that the courts later strike down, mistake of law is a defense. – MPC 2.04(3)(b)(i)
      1. Misreading a statute is NOT a defense
  2. Reliance on judicial decision
    1. If the state’s highest court had interpreted the law as permitting D’s conduct, the D may rely upon that decision even if that court, or the SC, later changes its interpretation – MPC 2.04(3)(b)(ii)
  3. Reliance on Administrative Order
    1. If the D acts in accordance with an order of a controlling administrative agency, there is no criminal liability even if htat order later turns out to be incorrect under the law. MPC 2.04(b)(3)(iii)
  4. Reliance on official interpretation
    1. If a controlling authority issues an interpretation of the law permitting the D’s conduct, mistake of law may be a defense – MPC 2.04(b)(3)(iv)
      1. Not all jurisdictions accept this exception.
      2. Reliance on the advice of your consel is not sufficient
3. Because of ignorance or mistake of law, D lacks the mens rea for the crime.
  1. General
    1. Some crimes require that a D know that his or her actions are in violation of the law or are “without authority of law.” If a D doesn’t know that he is acting without such authority b/c he has made a mistake of law, then the mens rea requirement of the crime has not been satisfied and mistake or ignorance of the law is a defense.
  2. MPC 2.04(1)
    1. “Ignorance or mistake as to a matter of fact or law is a defense if:
      1. The ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense. . .”
  3. Mere disagreement with law insufficient
    1. If a D knows what the law requires but simply disagrees with that law, there is no mistake of law defense
    2. To prove that a D knew a law, but willfully failed to comply withit because he disagreed with it, the prosecution may rely upon the D’s prior compliance with the law.
    3. Commonwealth v. Benesch
      1. D’s were charged with conspiracy to sell securities under an installment plan w/o approval by the Public Utilities Commission. D himself was the head of the business. The other D’s were salesmen and employees.

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