Table of contents criminal Law Outline

1. 
   An honest, good-faith mistake of law is sufficient to negate a D’s mens rea, just as it is in mistake of fact situations. Of course, the more unreasonable a D’s mistake, the less likely that the jury will believe that it was sincerely made.
   

1. 
   If a D believes that he is violating one law, and it turns out he is violating another, he is still guilty unless the offense with which he is charged requires that he “knowingly” act in violation of that law.
   
   1. 
      MPC approach – 2.04(2) – Ignorance or mistake of law defense is not available if the D would be guilty of another offense had the situation been as the D supposed. In such cases, however, D’s crime is reduced to the degree of the offense he thought he had committed.
      

1. 
   Read the statute
   
2. 
   Evaluate its legislative history
   
3. 
   Determine whether public policy requires that the D know he is engaging in illegal conduct
   

1. 
   D left a car at a garage to be fixed. When it was ready, he couldn’t pay the bill. He went to the garage and drove it away with a duplicate key. He claimed he didn’t know it was illegal to take his own property from the possession of a vailee, and also that he took the car to sell it, so that he could pay the repair bill. He was convicted of grand larceny
   
2. 
   Held, if due to a mistake of law, an owner did not have a fraudulent intent to deprive a bailee of the bailee’s rights to the owner’s property, the owner may not be convicted of larceny
   
   1. 
      A basic element of larceny is the intent to steal the property or another. If there is any reasonable evidentiary basis that D thought he had the right to take possession of his car, the jury should have considered that evidence under appropriate instructions. The fact that D claims ignorance of the principle of property law involved could have raised a reasonable doubt of D’s intent.
      

1. 
   Due Process requires requires that the D have sufficient notice as to what acts constitute a violation of the law
   
   1. 
      Lambert v. California
      
      1. 
         L.A. had a law that all felons who remained in the city for more than five days had to register with the police, and specified that failure to register was a continuing offense. D had been a resident of LA for over seven years. During that time, she was convicted of forgery, a felony, but never registered. She was arrested for another offense, then charged under the registration law.
         
      2. 
         Held, a person cannot be presumed to have knowledge of a criminal offense which proscribes passive conduct that ordinarily is not punishable.
         
         1. 
            The ordinance contains no element of willfulness. The court refused D’s evidence that she had no actual knowledge of the registration requirement, and the prosecution made no showing that she had such knowledge.
            
         2. 
            Conduct alone, w/o regard to the intent of the doer, is often sufficient to constitute an offense. But this case involved wholly passive conduct; there was nothing to alert D that her action, or inaction, was illegal.Due process requires some notice to the citizen.
            
2. 
   MPC 2.04(3)(a) – The MPC would expand the Lambert exception to any case where a law-abiding and prudent person would not have learned of the law’s existence.
   

1. 
   General
   
   1. 
      Ignorance or mistake of fact precludes criminal liability if the mistake means the D lacks a mental state essential to the crime charged.
      
   2. 
      Rationale:
      
      1. 
         Although often referred to as a “defense,” mistake or ignorance of fact is essentially a claim that the D did not have the mens rea for all of the material elements of the crime
         
2. 
   MPC 2.04(1)
   
   1. 
      “Ignorance or mistake is a defense when it negatives the existence of a state of mind that is essential to the commission of an offense. . .”
      
3. 
   Application of Mistake Fact Principles
   
   1. 
      One must determine what facts the D needed to know to be guilty of the crime (i.e. the material elements of the offense). If the D is ignorant or mistaken as to a material element that does not require mens rea, then the defense will not apply.
      
      1. 
         E.g. It is a crime to knowingly receive stolen goods. D buys goods that are stolen, but he is unaware of it at the time. Defendant’s mistake or ignorance of the facts precludes him from having the necessary mens rea.
         
      2. 
         E.g. It is a crime to knowingly employ an illegal alien.
         
4. 
   Determining which elements are material
   
   1. 
      General
      
      1. 
         Because the mistake of fact defense depends on whether the D has made a mistake as to a material fact, it is crucial to determine what elements of a crime are material; i.e. what must the D know to be guilty of the crime.
         
   2. 
      Statutory requirements
      
      1. 
         1^st place to look to determine what elements are material is the language of the statute. If a statute affixes a mens rea requirement to a particular fact, then the D must meet that mens rea requirement to be guilty of the crime. In other words, if a D needs to know something to be guilty of a crime, but he does not know it, he is not guilty.
         
         1. 
            i.e. anything that says “knowingly”
            
   3. 
      Common Law offenses
      
      1. 
         Many offenses, especially those at common law, did not use specific mens rea language that made clear what elements of the crime were material. Some crimes contained elements that the D did not need to know b/c defendant’s conduct was still considered morally wrong regardless of his mistake as to one of the elements of the crime. These additional elements were present to limit the number of moral wrongs the criminal courts would address.
         
         1. 
            I.e. D was convicted of abandoning his pregnant wife
            
         2. 
            I.e. D was convicted of possessing crack cocaine, and the court found it irrelevant that the D didn’t know it was of the crack variety
            
      2. 
         Often, some courts allow mistake or ignorance of fact defense only for specific intent crimes
         
      3. 
         The King v. Ewart (honest but good faith belief)
         
         1. 
            D sold a newpaper which contained obscene matter. D was a newpaper vendor and claimed that he honestly did not know that the obscene matter was in the paper. D was convicted of selling obscene matter and now appears.
            
         2. 
            Held, an inference of a guilty mind can be rebutted by evidence of honest ingnorance.
            
            1. 
               Some statutes specifically require a guilty mind, others prohibit certain acts regardless of intent, and some statutes simply omit any reference to “knowingly” or “willingly.” The offense D was convicted of falls within the latter class; the commission of the act in itself prima facie imports an offense, but proof of the lack of a guilty mind is a defense.
               
            2. 
               Since D committed the forbidden act, he must show he did it unwittingly and without a guilty mind. This question is for the jury to resolve.
               
      4. 
         People v. Vogel (morality law) – MPC 230.1(846)
         
         1. 
            D alleged that he mistakenly believed his first wife had obtained a divorce from him when he remarried, but the trial court refused to admit evidence relevant to the reasonableness of such belief.
            
         2. 
            Held, the mistake of fact as to a prior divorce, by negating an evil intent, may excuse D from being guilty of bigamy
            
            1. 
               The element of intent was not excluded from the statute either expressly or by necessary implication; therefore, there had to be a union of the act and the wrongful intent, and a mistake of fact could negate the required intent.
               
            2. 
               Bigamy is a crime involving moral turpitude. It is unlikely that the legislature meant to hold the morally innocent guilty. D should have been allowed to show that his first wife had told him she was going to get a divorce and thereafter married someone else. This evidence supported D’s defense of having a good faith belief that he was entitled to remarry
               
   4. 
      MPC – 2.04(2)
      
      1. 
         Model Penal Code acknowledges the moral-wrong approach by including a provision that holds that ignorance or mistake is not a defense when a D would be guilty of another offense had the situation been as he supposed. However, ignorance or mistake of fact can reduce the grade of the offense.
         
      2. 
         People v. Olsen
         
         1. 
            Mistake of Age is generally not a defense - & MPC 213.6(1) (846)
            
            1. 
               Most jurisdictions do not allow a mistake of age defense to statutory rape, even if the D’s mistake is reasonable.
               
               1. 
                  People v. Cash (Statutory Rape – Majority view)
                  
                  1. 
                     D, 30 years old, picked up a runaway girl who was 15 years old, and had sex w/her. She told D she was 17. D sought instruction that honest mistake as to the girl’s age was a defense.
                     
                  2. 
                     Held, a reasonable and good faith, although mistaken, belief that the female was over 16 is not a defense to statutory rape.
                     
                     1. 
                        Legislature intended to admit the reasonable belief to age defense
                        
                     2. 
                        The legislature may define crimes w/o the element of criminal intent
                        
                     3. 
                        The Constitution doesn’t require a defense of honest mistake.
                        
                     4. 
                        Public Policy supports a definition of the offense that does not include an element of specific intent b/c statutory rape protects those too innocent and immature to understand the consequences of their actions.
                        
            2. 
               However, a substantial minority of states will allow a “reasonable” mistake of fact defense
               
               1. 
                  People v. Hernandez (Statutory Rape - Minority View)
                  
                  1. 
                     D performed sexual intercourse with a girl, who was 17 years and 9 months old, with her consent. At trial for statutory rape, D was denied the opportunity to offer evidence that he reasonably believed her to be 18 years old.
                     
                  2. 
                     Held, a reasonable mistake of fact regarding age will exculpate one from the crime of statutory rape.
                     
                     1. 
                        W/o specific legislative direction to the contrary, a general mens rea is necessary for the crime. As such, a reasonable mistake of fact as to age is a proper defense, and should have been admitted into evidence.
                        
   5. 
      Summary of Analysis
      
      1. 
         First, find out what the material elements of the offense are
         
         1. 
            What facts does D need to know to be guilty of the offense
            
      2. 
         What is the mens rea for the crime?
         
      3. 
         If the D does not know something, does it negate the mens rea for the crime?
         

1. 
   General
   
   1. 
      It is a separate crime carrying its own penalties
      
   2. 
      It allows the apprehension of potential criminal conduct at an earlier stage than attempt
      
   3. 
      Members of a conspiracy are vicariously liable for the criminal acts of their co-conspirators, even without proof of accomplice liability
      
   4. 
      Conspiracy allows the apprehension of large groups of individuals
      
   5. 
      Conspiracy is a continuing offense which gives a longer time periof for prosecutors to file charges
      
   6. 
      Venue for conspiracy charges may be brought in any jurisdiction in which an act of the conspiracy occurs
      
   7. 
      Hearsay exceptions allow admission of co-conspirators statements
      
2. 
   Definition
   
   1. 
      A conspiracy is an agreement by two or more persons to commit a crime
      
   2. 
      The objective of the conspiracy “must be to commit a crime”
      
      1. 
         It is not a conspiracy to offend public morals
         
3. 
   Punishments
   
   1. 
      In some jurisdiction the level of punishment depends on the seriousness of the crime D conspired to commit
      
   2. 
      MPC – 5.05(1)
      
      1. 
         The punishment for a conspiracy is the same as provided for the most serious offense which the parties conspired to commit.
         
4. 
   Substantive Consequences
   
   1. 
      Common Law
      
      1. 
         If two or more persons agree to commit a crime and then commit the crime, each person is guilty of at least two crimes
         
   2. 
      MPC
      
      1. 
         The crime of conspiracy merges with the completed target offense unless the prosecution proves the conspiracy involved the commission of additional offenses not yet committed or attempted.
         
   3. 
      Conspiracy punishes preparatory conduct
      
      1. 
         The mere act of agreeing to commit a crime is sufficient for the conspiracy even if there is not substantial step toward completing that crime.
         
   4. 
      Conspirators have co-conspirator liability
      
      1. 
         Once a D joins a conspiracy, he or she is responsible for all acts of the co-conspirators done within the scope of the conspiracy, even if there is no evidence of accomplice liability
         
         1. 
            E.g. A and B agree to rob a bank. Unbeknownst to B, A steals a car to use in the robbery. Because he is a co-conspirator, B is automatically guilty of the car theft.
            
5. 
   Duration of a Conspiracy
   
   1. 
      General
      
      1. 
         A conspiracy remains in effect until it has been abandoned or until its objectives have been achieved
         
   2. 
      Abandonment
      
      1. 
         A conspiracy is generally considered to be abandoned when none of the conspirators is engaging in any action to further the conspiratorial objectives
         
   3. 
      Withdrawl / Renunciation
      
      1. 
         General
         
         1. 
            A single conspirator can limit his criminal liability to some degree by renouncing his involvement and withdrawing from the group. There are two basic approaches: Common Law and MPC
            
      2. 
         Common Law
         
         1. 
            A co-conspirator can end his responsibility for later acts and statements of his co-conspirators by withdrawing from the conspiracy. However, the D is still guilty for the initial act of conspiracy.
            
         2. 
            Once committed, a conspiracy could not be “uncommitted.” To withdraw from a conspiracy, a D must take “affirmative action” to announce his withdrawal to all the other conspirators.
            
         3. 
            In some jurisdictions, the D must also notify law enforcement or otherwise thwart the plot.
            
      3. 
         MPC
         
         1. 
            Withdrawal – 5.03(7)(c)
            
            1. 
               Under MPC, an individual can either inform his co-conspirators or notify the authorities that he is terminating his association with the conspiracy. Once this is done, the D is no longer a member of the conspiracy and is not responsible for his co-conspirators acts.
               
         2. 
            Renunciation – 5.03(6)
            
            1. 
               MPC recognizes an affirmative defense to the crime of conspiracy if the D successfully thwarts the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. If a D actually thwarts the criminal acts of the conspiracy, he can avoid liability for even the initial conspiracy he joined.
               
   4. 
      Conspiracy as a form of accessorial liability
      
      1. 
         General
         
         1. 
            A Conspirator is responsible for all acts of his or her co-conspirators during the course of and in furtherance of the conspiracy, even if the conspirator is unaware that these acts are being committed.
            
      2. 
         Pinkerton v. United States
         
         1. 
            Two brothers conspired to evade the tax laws. One of the brothers did nothing beyond the planning stage, while the other committed actual overt acts toward tax evasion. Both were convicted of conspiracy to evade taxes. D appeals, claiming no participation in the tax evasion. There was no evidence indicating that D attempted to withdraw from the scheme.
            
         2. 
            Held, the acts of one co-conspirator can be imputed to another who has committed no overt criminal act
            
            1. 
               The basis of conspiracy law is that the acts of one conspirator are imputed to all other conspirators, as long as there has been no withdrawal from the scheme. Conspiracy in itself is a separate crime for which one may be convicted without further acts.
               
      3. 
         “Outside the Scope”
         
         1. 
            If the acts of one of the conspirators falls completely outside of the conspiratorial plan, other conspirators cannot be found guilty of the acts which are not in furtherance of the conspiracy. This exculpation applies only when the acts of a conspirator are not within the “foreseeable scope” of the crime which is the subject of the conspiracy.
            
      4. 
         “In Furtherance of Conspiracy”
         
         1. 
            Crimes “in furtherance of the conspiracy” include more than those crimes the co-conspirator contemplated when he entered into the unlawful agreement. They also include any crimes that are “reasonably foreseeable as the necessary or natural consequences of the conspiracy.
            
      5. 
         Pinkerton Liability is not retroactive
         
         1. 
            A conspirator is NOT responsible for substantive offenses committed prior to his joining the conspiracy, but acts by the D’s co-conspirators before he joined the conspiracy can be used as evidence for general conspiracy charges.
            
      6. 
         Co-conspirator liability v. Accomplice Liability
         
         1. 
            Co-Conspirator liability is broader than accomplice liability. Accomplice liability requires purpose to assist in a particular crime and an act of assistance. Co-conspirator liability occurs when a co-conspirator commits a crime that is reasonably foreseeable given the nature of the conspiracy.
            
      7. 
         Criticisms of Pinkerton Liability
         
         1. 
            Generally, criminal law requires that the D be personally culpable. Pinkerton liability is imposed even when the D is not personally responsible for the substantive crime.
            
      8. 
         MPC
         
         1. 
            MPC has rejected the Pinkerton doctrine. A conspirator is only guilty of the substantive crime of a co-conspirator if there is evidence of accomplice liability
            
   5. 
      Elements of Conspiracy
      
      1. 
         Actus Reus
         
         1. 
            General
            
            1. 
               Actus Reus is an “Agreement”
               
         2. 
            Express or implied Agreement
            
            1. 
               An agreement to commit a crime may be expressed or implied. It is relatively rare for conspirators to openly agree to commit a crime. Accordingly, one must look to the circumstantial evidence to determine whether there has been such an agreement.
               
         3. 
            Concerted Action
            
            1. 
               In order to establish agreement, one can draw inferences from the course of conduct of the alleged conspirators. If conspirators act in a concerted manner to achieve a common abject, an agreement may be inferred.
               
         4. 
            Parallel actions v. common design
            
            1. 
               Two D’s coincidentally engaged in parallel action to commit a crime are not guilty of conspiracy. The evidence must indicate a tacit agreement between them.
               
         5. 
            Agreement with unknown Parties
            
            1. 
               It is not necessary that all parties know each other or even have contact with one another. It is sufficient if the D knows he is agreeing with others to commit a crime.
               
         6. 
            Presence at crime scene
            
            1. 
               Mere presence at a crime scene is not enough to establish agreement to participate in a crime. However, given the unlikeliness that conspirators would invite an innocent party to witness their acts, presence at a crime scene provides some evidence of an illegal agreement, especially if coupled with with any acts by D to help the crime occur.
               
         7. 
            Joining ongoing Conspiracy
            
            1. 
               Not all conspirators must join the conspiracy at the same time. When a D joins an ongoing criminal conspiracy, prosecutors may use actions by co-conspirators prior to D’s joining as evidence for a conspiracy charge against him.
               
      2. 
         Overt Act Requirement
         
         1. 
            General
            
            1. 
               Most modern conspiracy statutes now have added a general overt act requirement, but do not require it for conspiracies to commit the most serious offenses. This is the same as the MPC – 5.03(5)
               
         2. 
            Definition
            
            1. 
               An overt act is anly legal or illegal act done by any of the conspirators to set the conspiracy into motion.
               
               1. 
                  E.g. A and B decide to rob a bank; A calls to see what time the bank opens. This is enough for conspiracy
                  
         3. 
            Only one conspirator needs commit the overt act
            
            1. 
               When one conspirator commits an overt act, all members of the conspiracy are guilty.
               
         4. 
            Innocuous Acts
            
            1. 
               Overt acts may be innocent in and of themselves and need not be a substantial step toward committing a crime. The sole purpose of an overt act is to show “that the conspiracy is at work.”
               
         5. 
            Rationale for Overt Act
            
            1. 
               An overt act requirement shows that the conspiracy has moved from the mere idea stage to action. Even though the overt act requirement may be satisfied by an otherwise innocuous act, the mens rea requirement for conspiracy ensures that innocent persons won’t be convicted.
               
      3. 
         Mens Rea of Conspiracy
         
         1. 
            Three main elements
            
            1. 
               Intent to agree
               
            2. 
               Intent to join the conspiracy, and
               
            3. 
               With the purpose to commit a crime **
               
         2. 
            Intent to agree
            
            1. 
               It is essential that the D know he is agreeing to join a conspiracy.
               
               1. 
                  E.g. If a person nods to another as a greeting, they aren’t joining a conspiracy
                  
         3. 
            Purpose to commit the crime
            
            1. 
               This is the mens rea requirement in most jurisdictions
               
            2. 
               Knowledge v. Purpose
               
               1. 
                  When purpose is required, knowledge alone is insufficient to establish the mens rea for conspiracy.
                  
            3. 
               Rationale:
               
               1. 
                  The distinction between purpose and knowledge safeguards against conspiracy charges being used as dragnets to charge all those who have been associated with illegal activities to any slight degree. For example, condom manufacturers, mattress salesmen, and negligee outfits know that some of their customers are prostitutes, but many would view it as unjust to charge these businesses with conspiracy to commit prostitution.
                  
         4. 
            Knowledge sufficient for more serious crimes
            
            1. 
               In some jurisdictions, knowledge that one’s goods or services will be used for criminal purposes may be enough to establish the mens rea for conspiracy, when the crime involved is a serious one and the substances being provided are themselves dangerous.
               
   6. 
      Parties
      
      1. 
         General
         
         1. 
            A conspiracy requires an agreement between a minimum of two qualified parties. Depending on jurisdictiton, certain individuals may not qualify as parties to a conspiracy
            
      2. 
         Gebardi Rule
         
         1. 
            A person that a particular law is intended to protect cannot be a party to a conspiracy to violate the law.
            
            1. 
               Gebardi v. United States
               
               1. 
                  The Mann Act prohibited interstate transportation of women for immoral purposes. D and his future wife crossed state lines and engaged in sex. The Mann Act expressly prevented the conviction of a woman involved in the offense regardless of her willingness to participate.
                  
               2. 
                  Held, a person whose acts are legal cannot be convicted of conspiracy
                  
                  1. 
                     While the man is clearly guilty of vilation of the Mann Act, no conspiracy conviction can lie. A conspiracy conviction cannot be sustained against a person involved in an offse if she cannot be convicted of the substantive offense. Because the woman couldn’t be convicted of conspiracy, the man may not either.
                     
      3. 
         Seller of Goods
         
         1. 
            A conspiracy requires two guilty minds. When one of the persons does not know, or have reason to know, that the other is planning a crime, he cannot be convicted of conspiracy. For example, a person who sells a gun to another when the other tells him that he will be using it for hunting purposes may not be convicted of murder if the buyer subsequently murders someone with the gun
            
            1. 
               Misdemeanor
               
               1. 
                  A seller is generally not guilty of conspiracy even if he knows that what he sells will be used to commit a crime, if the crime is a misdemeanor. This rule is generally reconciled by a finding by the court that the seller is really doing nothing to promote the illegal activity in any way, and has no intent to be involved in the crime.
                  
            2. 
               Felony
               
               1. 
                  Most states permit conviction of a seller who knows that the goods he sells will be used to commit a felony. Although the seller may not be promoting the crime, and may have no specific intent that a crime be committed, social policy dictates restraint on the part of sellers in assisting felons in any way.
                  
         2. 
            US v. Falcone
            
            1. 
               D and others sold various items to distillers whom they knew would use them to manufacture liquor illegally. They were convicted of conspiracy to manufacture liquor illegally, although the items were legal to sell
               
            2. 
               Held, the sale of goods which are otherwise legal to sell does not involve the seller in conspiracy when he knows the goods will be used for an illegal purpose.
               
               1. 
                  The mere sale of otherwise lawful goods is not a combination for an unlawful purpose. If the seller in no other way promotes the illegal activity, there is no specific intent to be involved in an illegal act and conspiracy can’t lie.
                  
      4. 
         Wharton rule
         
         1. 
            If it is impossible to commit the substantive offense without cooperative action, the preliminary agreement between the parties to commit the offense is not an indictable conspiracy. Whaton’s Rule prohibits “double-counting” the conspiracy and substantive offense.
            
         2. 
            Exception:
            
            1. 
               If legislative intent clearly intends to allow both a conspiracy charge and a substantive charge for a particular group activity, conspiracy, conspiracy may be charged.
               
         3. 
            Caution:
            
            1. 
               If commission of a crime requires at least two people, but not more than two are involved, the Wharton Rule does not prohibit a conspiracy charge. The Wharton Rule only applies when the only two people involved are the two necessary to commit the substantive crime.
               
         4. 
            MPC:
            
            1. 
               MPC does not recognize the Wharton Rule
               
         5. 
            US v. Figueredo
            
            1. 
               D and seven others were charged with conducting an illegal gambling operation, and with conspiracy to do so. The statute required the concerted action of at least five people to constitute the offense itself.
               
            2. 
               Held, under the Wharton’s rule, defendants may not be convicted of conspiracy when the offense they conspire to commit requires the participation of more than one person.
               
               1. 
                  At common law, where the crime charged is of such a nature as to require the participation of two or more persons, the agreement to commit the crime can’t be prosecuted.
                  
               2. 
                  This does not apply:
                  
                  1. 
                     Crimes that could be committed by one conspirator alone
                     
                  2. 
                     Crimes wich do not logically require concerted action, even though in practicality cooperation would be necessary.
                     
                  3. 
                     Crimes in which the essential participants are the only conspirators: where one assists two others to commit adultery, then all three can be held for conspiracy commit adultery.
                     
      5. 
         MPC – 5.04(1)
         
         1. 
            If the D believes he is conspiring with another to commit a crime, he is guilty of conspiracy regardless of whether the other person can be convicted
            

1. 
   International law
   
   1. 
      General
      
      1. 
         Law that determines how states must act to resolve conflicts btwn and among other states. (legal effect varies depending of if you are in the int’l plane or the domestic plane
         
   2. 
      Newer Expansions:
      
      1. 
         disputes between a state and a group of states
         
      2. 
         now recognizes duties (rights) created to individuals (not just states)
         
   3. 
      Legal Status of International law in the US:
      
      1. 
         If brought in a US court, must look at US domestic law to see which law is to be applied.
         
         1. 
            If it specifies US law, then it will be used.
            
         2. 
            If it specifies Int’l law, then it will be applied.
            
         3. 
            If it says French law, then it will be applied. (adjust as necessary)
            
   4. 
      Sources of International Law: (Listed in hierarchical order—except certain norms of customary int’l law trump int’l agreements—a.k.a. jus cogens)
      
      1. 
         International Agreements
         
         1. 
            General
            
         2. 
            agreement between/among states or associations of states. To become legally enforceable, must be signed and ratified by each country.
            
         3. 
            Importance
            
            1. 
               Supreme CT has held that a US Treaty is on the same plane as a US Statute and later law in time trumps earlier treaties/statutes.
               
            2. 
               bi-national treaty has 2 states; multi-national has several states
               
            3. 
               convention
               
               1. 
                  lots of states.
                  
            4. 
               protocol
               
               1. 
                  treaty to amend an existing treaty
                  
         4. 
            Treaty Under US law
            
            1. 
               President must enter into it and 2/3 of the Senate must agree also (as mandated by the Constitution).
               
         5. 
            How to interpret treaties
            
         6. 
            Vienna Convention on the Law of Treaties (1969)
            
            1. 
               almost all countries signed except the US (but by customary law most are bound now by this):
               
               1. 
                  If the meaning of something in a treaty is contested—go by the ordinary meaning of terms in their context and in light of the treaty’s object and purpose.
                  
               2. 
                  Working papers (travaux preparatoires)
                  
                  1. 
                     like a legislative history—allowed to use such papers ONLY for:
                     
                     1. 
                        confirming the language of the text
                        
                     2. 
                        to resolve ambiguous/obscure terms,
                        
                     3. 
                        to avoid results that are manifestly absurd or unreasonable.
                        
      2. 
         Customary International law
         
         1. 
            even if not agreed upon explicitly, b/c of implicit agreement of norm:
            
            1. 
               must be general/consistent practice of states following a norm AND
               
            2. 
               they are following it out of a sense of legal obligation.
               
         2. 
            General Principles of Law
            
            1. 
               rules starting in domestic law
               
            2. 
               like res judicata.
               
2. 
   International Trials
   
   1. 
      Nuremberg Tribunal:
      
      1. 
         Historical Background:
         
         1. 
            After WWI, major allied effort to detain and try German war criminals, but it ended up letting Germany itself try the criminals. Only 12 went to trial, only 6 convicted and they had VERY light sentences.
            
         2. 
            After WWII, allies could have let each ally try criminals in their own courts, but they set up a multi-national tribunal at Nuremberg.
            
            1. 
               Pros
               
               1. 
                  All tried by same law, sends a message, speedy/efficient, more credibility.
                  
            2. 
               Cons:
               
               1. 
                  Complications of setting this up
                  
      2. 
         Purpose:
         
         1. 
            deterrence (general deterrence)
            
         2. 
            retribution
            
         3. 
            making a statement
            
      3. 
         Scope of the IMT (Nuremberg):
         
         1. 
            Article 6: can only try war criminals of the Axis powers.
            
      4. 
         Crimes that can be punished
         
         1. 
            Crimes against peace
            
            1. 
               Namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
               
         2. 
            War Crimes
            
            1. 
               Namely, violations of the laws or customs of war. Such violations shall include, but hsall not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity
               
         3. 
            Crimes against humanity:
            
            1. 
               Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
               
      5. 
         What gives the allied powers the right to set up the tribunal?
         
         1. 
            The US alone could do it, so why not int’l…
            
         2. 
            the US alone could do it b/c the crimes of which the criminals were accused were INT’L crimes. (“universal jurisdiction”)
            
         3. 
            These were not new crimes, but Ct says there were existing crimes. Anyway, the are crimes which humans know are wrong (like mala in se crimes)
            
      6. 
         Punishment
         
         1. 
            They are punished even if following orders, but this gave mitigation.
            
      7. 
         Codifying the rules of law of Nuremberg.
         
         1. 
            UN Resolution
            
      8. 
         Criticisms of Nuremberg:
         
         1. 
            Victor’s Justice
            
   2. 
      Tokyo Tribunal:
      
      1. 
         US Government told MacArthur to try the criminals in 1946 (and other allies joined in)
         
      2. 
         Japan accepted this as part of its surrender—all 25 were convicted (more accomplished than w/ Nuremberg)
         
   3. 
      Other WWII tribunals:
      
      1. 
         Allied Control Council—governed post-war Germany
         
      2. 
         “Law 10”—authorized each commander to set up judicial tribunals (the US had 12 trials and was the most successful)
         
   4. 
      ICTY (1993 by UN Security Council) / ICTR (1994)
      
      1. 
         Jurisdiction
         
         1. 
            This “independent” international tribunal, with jurisdiction to prosecute persons responsible for grave violations of international humanitarian law in the territory of the former Yogoslavia since 1991, and then this was followed by one for recent atrocities in rawanda.
            
      2. 
         Goals of ICTY:
         
         1. 
            General Deterrence
            
         2. 
            Punishment
            
         3. 
            Ccompensation and rehabilitation
            
         4. 
            Rrestoration of the public order
            
         5. 
            Reinvigoration of the international and national rule of law
            
         6. 
            Preservation of collective memory
            
         7. 
            National reconciliation.
            
   5. 
      Problems of absence of a military victory:
      
      1. 
         compensation/rehabilitation is a problematic goal b/c
         
         1. 
            witness are afraid of retaliation and won’t testify
            
         2. 
            no documentation of the crimes so need witnesses.
            
      2. 
         Only getting “small fry” criminals, but this isn’t a problem b/c these “small fry” people would be mass murderers/rapists in the US!
         
      3. 
         Deterrence is an important symbolic goal being served. (but it is better served by the individual smaller tribunals in states)
         
      4. 
         Yes, it is selective—there are time constraints of ct’s jurisdiction, but at least we are getting some people.
         
      5. 
         The adversarial procedure in the court ends up tearing people apart again instead of reconciling them.
         
      6. 
         First final case
         
         1. 
            Tadic
            
            1. 
               There were constitutional type arguments brought up at trial like “what gives you the right to try him?” but he was found guilty and sentenced to 20 years.
               
   6. 
      ICTR (Rwanda) – p. 29-30
      
      1. 
         General
         
         1. 
            Located in Tanzania.
            
         2. 
            Has jurisdiction over not only stuff in Rwanda but stuff committed by Rwandans in neighboring states. (unlike with ICTY)
            
         3. 
            Jurisdictional limitation of time:
            
            1. 
               Calendar year 1994.
               
            2. 
               125,000 suspects—this is problematic—many being tried in tiny Rwandan courts in mass trials which is rough and ready justice.
               
      2. 
         ICT for Rwanda (UNSC Res 955, Nov. 8, 1994)
         
3. 
   ICC – the proposed permanent tribunal
   
   1. 
      The need for an ICC
      
      1. 
         Large amount of international crimes continue to exist
         
      2. 
         Governments have remained, for the most part passive
         
      3. 
         Perpetrators of these crimes have benefited, and not been held accountable
         
      4. 
         There is an emergence over the years of the need for accountability and justice, and the ad hoc tribunals need to give way to a more permanent tribunal
         
   2. 
      The nature of the ICC
      
      1. 
         Permanent international institution established by treaty for the purpose of investigating and prosecuting individuals who commit serious crimes:
         
         1. 
            Genocide (Article 6)
            
         2. 
            Crimes against humanity (Article 7)
            
         3. 
            War crimes (Article 8)
            
      2. 
         Binding only those states that have signed
         
      3. 
         It is not a substitute for national criminal jurisdiction and does not supplant national criminal justice systems, but is complimentary to them (Article 1, 17)
         
   3. 
      Applicable
      
      1. 
         Article 10
         
         1. 
            Contains the overarching principle with respect to the applicable law, and it requires the application of international law whose four sources are listed in Article 38 of the Interanational court of justice:
            
            1. 
               International conventions, whether general or particular, establishing rules expressly recognized by the contesting states
               
            2. 
               International Custom, as evidenced by a general practice accepted as law;
               
            3. 
               The general principles of law recognized by civilized nations;
               
            4. 
               Judicial decisions and the teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law
               
               1. 
                  Treaty must be interpreted in accordance with the 1969 Vienna Convention on the Law of Treaties
                  
      2. 
         How to interpret the provisions of the statute
         
         1. 
            Issues 11, p. 33
            
         2. 
            Issues 12, p. 33
            
      3. 
         Articles of the International Criminal Court
         
         1. 
            Article 5 –Crimes w/in the jurisdiction of the court
            
            1. 
               Genocide
               
            2. 
               Crimes against humanity
               
            3. 
               War Crimes
               
            4. 
               The crime of aggression
               
         2. 
            Article 6 – Genocide - 34
            
            1. 
               General
               
               1. 
                  Any act committed with “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
                  
            2. 
               Elements
               
               1. 
                  Killing members of the group
                  
               2. 
                  Causing serious bodily or mental harm to members of the group
                  
               3. 
                  Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
                  
               4. 
                  Imposing measures intended to prevent births within the group
                  
               5. 
                  Forcibly transferring children of the group to another group
                  
         3. 
            Article 7 – Crimes against Humanity - 35
            
            1. 
               General
               
               1. 
                  This means any of the following when committed as part of a widespread or systematic attack directed against any civilian population:
                  
                  1. 
                     Murder, Extermination, Enslavement, Deportation or forcible transfer of population, Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of Int’l law
                     
                  2. 
                     Torture, Rape, etc., Enforced disappearance of persons
                     
                  3. 
                     The crime of apartheid, and other inhumane acts
                     
            2. 
               Definitions - 35
               
               1. 
                  “attack against a civilian population” means a course of conduct. . . in furtherance of a State or Organizational policy to commit such attack.”
                  
         4. 
            Article 8 – War Crimes
            
            1. 
               General
               
               1. 
                  2(a) – “Grave breaches of the Geneva Convention of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Conventions: . . .
                  
               2. 
                  2(b) – “Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely: . . .”
                  
               3. 
                  2(c) – “In the case of an armed conflict not of an international character, serious violations of Article III common of the four Geneva Conventions of August 12, 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:”
                  
4. 
   Crimes:
   
   1. 
      Main Sources are the Geneva Conventions (now customary intl law):
      
      1. 
         1864: The treatment of sick and wounded soldiers on land
         
      2. 
         1905: The treatment of sick and wounded at sea
         
      3. 
         1929: The humane treatment of Prisoners of War
         
      4. 
         1949: The protection of civilian population in the time of war
         
   2. 
      Determining a crime
      
      1. 
         Step 1: Does Art 2 or Art 3 apply? (p. 49)
         
         1. 
            Art 2
            
            1. 
               Deals w/ armed conflicts or war in occupied territories.
               
               1. 
                  If Art 2 applies, the WHOLE convention applies.
                  
         2. 
            Art 3
            
            1. 
               Deals w/ civil war.
               
               1. 
                  If Art 3 applies, then only some provisions of the convention apply.
                  
      2. 
         Step 2: Are the persons protected by the Convention?
         
         1. 
            See Article 4 (H-O 2, p. 50)
            
      3. 
         Step 3: Look at what happened to see if violations occurred.
         
         1. 
            Look at p. 58 at Article 147 for what constitutes a “grave breach”
            
   3. 
      1977—two protocols extended the convention. (US didn’t sign these):
      
      1. 
         One amends int’l conflicts by expanding the definition of “intl conflict” (colonial groups considered int’l groups) and expands conduct prohibited (forced starvation and no indiscriminate attacks on civilian population, e.g.)
         
      2. 
         The other amends non-int’l conflicts and expands conduct prohibited as in the first one and adds no apartheid.
         
5. 
   Hague Conventions (1899 and 1907) prohibit certain methods of war.
   
   1. 
      Now part of customary int’l law
      
   2. 
      War Crimes
      
      1. 
         Any violation of laws or customs of war (any conventions or customary intl legal norms).
         
      2. 
         Hostage taking—taken and kept alive (to deter future acts and to keep other citizens in good behavior)
         
         1. 
            Ct in List says this is OK provided some conditions are met.
            
   3. 
      Reprisals—killed in retaliation for killing of soldiers by someone else.
      
   4. 
      Issue in List: conditions for taking innocent civilians of occupied territory as a guaranty against attacts by unlawful resistance forces and then to execute these innocent citizens. **(List handed down before 4^th Geneva Convention!!)**
      
   5. 
      Ct holds:
      
      1. 
         if time, get permission from a ct marshal beforehand.
         
      2. 
         last resort condition (see p. 44, H-O 2 for other options)
         
         1. 
            population generally has to be actively or passively involved.
            
         2. 
            what is the population? Nationality and geographic proximity can be enough according to the ct.
            
         3. 
            what is it that they have to do??
            
         4. 
            ust give a warning to the population
            
         5. 
            # of innocents can’t be excessive in relation to the offense.
            
         6. 
            ust hold a trial unless there is not enough time.
            
         7. 
            otive must be military necessity.
            
   6. 
      Look at Geneva Convention 4 and at the ICC statute.
      
      1. 
         US legislation: War Crimes Act (p. 59)—makes war crimes punishable under US domestic law.
         
      2. 
         Must be a “grave breach” of the Geneva Convention
         
      3. 
         ictim or person committing must be a US national or member of the US armed forces.
         
6. 
   Crimes Against Humanity—
   
   1. 
      Nuremberg Charter (p. 60) 2 prongs:
      
      1. 
         committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection w/ any crime within the jurisdiction of the tribunal.
         
      2. 
         The tribunal took a restrictive view of the prongs that “in execution of…” modified the whole statement.
         
      3. 
         anted to get just the “big fish” so take restrictive view
         
   2. 
      Control Council Law, No. 10 (p. 60): “war” not even mentioned so it dispenses w/ that requirement. (broader individual jurisdiction but smaller territorial jurisdiction).
      
   3. 
      International Law Commission (ILC—UN Think Tank): Codified the Nuremberg idea of crimes against humanity. The statute was passed by the Security Council.
      
7. 
   ICTY: (p. 63)
   
   1. 
      Requires an “armed conflict” (so more restrictive than Nuremberg’s “before or during the war.”)
      
   2. 
      must be “directed against”—so you must intentionally target to be held guilty (more restrictive than Nuremberg)
      
8. 
   ICTR—didn’t contain “armed conflict” language, but almost all of the killing did occur during armed conflict.
   
9. 
   ICC’s definition: (p. 34-6)
   
   1. 
      no war required.
      
   2. 
      requires widespread/systematic
      
   3. 
      persecution prong, Art 7(1)(h): doesn’t include armed conflict.
      
10. 
    Customary Int’l law doesn’t require armed conflict. (says an ICTY in dictum)
    
11. 
    Gender: most persecution definitions do not include it.
    
12. 
    No US statute makes crimes against humanity a crime in US domestic law
    
13. 
    Genocide—
    
    1. 
       Some see this as a side category of crimes against humanity (but this can only be the case if you believe that CAH can happen both in war AND in peace)
       
    2. 
       1948 Genocide Convention (p. 70):
       
       1. 
          requires actus reas (multi-prong in p. 70-1)—doesn’t require killing.
          
       2. 
          requires mens rea: “intent to destroy, in whole or in part,…”
          
       3. 
          four groups covered: nat’l, ethnic, racial, and religious.
          
       4. 
          those NOT protected: gender, social, and political.
          
       5. 
          Article 5: Not a self-executing treaty—requires states to pass legislation to provide for prosecution or extradition, etc.
          
       6. 
          Once US makes a statute, the cause of action is then one brought under its domestic law.
          
    3. 
       It isn’t a defense to say you were a part of the group being targeted.
       
    4. 
       Doesn’t matter whether or not the targeted group is a minority.
       
    5. 
       The US and the Genocide Convention:
       
       1. 
          After 38 yrs, it was ratified in 1986, but
          
       2. 
          so much was added as to nullify its effect. (see p. 73).
          
       3. 
          US apprehensive about US soldiers being brought up on charges and also about giving up any sovereignty!
          
       4. 
          US doesn’t like the provision that disputes btwn contracting parties go before the ICJ. (so US says that it must “consent” before it will go)
          
    6. 
       US stipulations on the convention:
       
       1. 
          Reservations:
          
          1. 
             ICJ jurisdiction (must consent)
             
          2. 
             Way in which int’l law reacts w/ Con law.
             
       2. 
          Understandings:
          
          1. 
             Interprets “intent” to be “specific intent to destroy in whole or in substantial part”!
             
          2. 
             Mental harm means “permanent mental impairment.”
             
       3. 
          Actual implementing legislation: (p. 74)
          
          1. 
             Defines “substantial part” numerically!
             
          2. 
             Jurisdiction: must have been committed on US soil or be committed by a US national! (This violates the treaty, which requires us to punish [by prosecution or extradition] any genocide offender within its borders)
             
       4. 
          § 1092 (p. 75): state and local laws on genocide? depends on what “proscribed by this chapter” is interpreted to mean.
          
    7. 
       ICC Statute (p. 34)!!!
       

Definitions:

1. 
   Determine whether the elements of attempt have been met?
   
   1. 
      Did the D have the purpose to commit a crime?
      
   2. 
      Did the D take a substantial step toward committing the crime
      
2. 
   Were there facts that were “unbeknownst” to the D that made it impossible for the D to complete the crime?
   
   1. 
      If the facts were as D reasonably believed them to be, would defendant have been guilty of a crime?
      
      1. 
         If no law exists prohibiting D’s behavior, D may be excused under the doctrine of “true legal impossibility.”
         
      2. 
         If D made a mistake as to the legal status of some of his conduct, but without such a mistake D would be violating the law, D’s “legal impossibility” defense should be treated more like factual impossibility and NO DEFENSE SHOULD EXIST. D is guilty of attempt
         
      3. 
         MPC
         
         1. 
            Impossiblity is not generally a defense
            
         2. 
            D’s case may be mitigated if D’s actions are not dangerous on their face and don’t need to be punished – 5.05
            

MAJOR: