Popular in Criminal Law
Popular in Law
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Date Created: 10/09/15
Sims Criminal Law Outline Theories of Punishment There are two main philosophies about What the purpose of criminal law should be Expressive purpose Punishment can express societal views of the community Utilitarianism Looks Forward A form of quotconsequentialismquot which holds that the justi cation of a practice depends only on its consequences The purpose of all law is to maximize the net happiness of society There is an idea that a D will avoid criminal activity if the perceived potential pain punishment outweighs the expected criminal rewards Amount of Punishment Punishment doesn t need to be probortionate It can be quotoverly harshquot as there is no inherent limit You do whatever you can to deter In theory there is no limit but in reality if the punishment is too harsh there is a backlash from the public If the public doesn t concede to enforcement of it excessive punishment can harm Obiectives of Utilitarianism 1 General Deterrence If a D commits a crime we should punish D mainly in order to convince the general community to avoid criminal conduct in the future Research has shown that it is not the length of sentence that deters others but the actual conviction and capture 2 Speci c Deterrence If a D commits a crime we should punish D to deter that individual from committing additional crimes in the future 3 Rehabilitation Cannot be the sole reason for punishment The criminal justice system should try to prevent D from committing further crimes not by causing him to fear the pain of further punishment in the future but by educating him or otherwise reforming him 4 lncapacitation If D is incarcerated he cannot commit further or additional crimes Retributivism Looks Backward The belief that the principal maybe even the sole purpose of criminal law should be to punish the morally culpable Amount of Punishment Punishment should be proportionate to the wrongdoing Punishment based on either 1 harm cause or 2 lack of morality Vengeance is not enough reason to punish Obiectives of Retributivism 1 Deterrence is not the principal focus Focus on moral blameworthiness 2 Minimal focus of Rehabilitation Focus is on punishment of offenders 3 Focuses on restoring the dignity of the victim Punishment restores the convicted to a place in the community Theories of Punishment CASE LAW Deterrence Ragina v ones D had spontaneous outburst leading to indecent assault of 3 young girls Even though he would not be rehabilitated general deterrence is necessary because of seriousness of crime Dissent argued that imprisonment would not deter others and potentially harm him further by exposing him to dangerous criminals Takeaway A justi cation for general deterrence existed even though speci c deterrence or rehabilitation didn t apply United States v jackson A bank robber robs another bank within 30 minutes of being released from pnson Life sentence given This man is a career criminal 1 He hasn t been rehabilitated 2 he hasn t been deterred and 3 needs to be incarcerated Dissent argued that this sentence was too harsh Robbery is a young man s crime The sentence is wasteful there can be general deterrence with a lesser sentence Takeaway lncapacitation v Semilncapacitation Posner in dissent does good job of proving no speci c or general deterrence and lncapacitation wasn t necessary Retribution United States V Bergman Extremely moral guy commits fraud against the government He is punished for what he did quotjust deserts There are many letters of recommendation The letters of mercy re ect unquestioned facts Vengeance is not enough to punish someone Takeaway A justi cation for retribution and general deterrence existed There is a stigma with felonies Regina v Dudley amp Stephens Men stranded on a boat ate the youngest and weakest boy in order to survive Rule of conspiracy anyone conspiring with an actor is equally liable for the act so although Stephens didn t wield the knife Law and morality are not the same There is no safe path for judges to tread but to ascertain the law Takeaway A justi cation for retribution existed no need for speci c deterrence must punish so the law is consistent and certain What Should We Punish We should punish behaviors that harm others Limitations on the law First Amendment We cannot punish someone based on the content of their speech but we can punish for making excessive noise Discretion of Enforcers Police of cers often have wide discretion when arresting especially under vague statutes Social ConventionsMorality Morality changes so laws based on public morality lose their validity when public morality changes Problems with basing criminalization of public morality 1 Criminalizes a minority 2 Subject to change 3 Dif cult to de ne Proportionality As a general principle theories of punishment agree that the punishment for a crime should be roughly proportional to the crime s seriousness Felony v Misdemeanor Modern criminal statutes typically divide crimes into two broad categories 1 Felony a serious crime that is punishable by at least one year in a state prison and 2 Misdemeanor is a lesser crime for which the maximum penalty is either a incarceration for less than a year b a ne or c both What Should We Punish CASE LAW First Amendment Rights Protected Discretion of Enforcers Common wealth V ones quotNazi Pig Motherfuckerquot at a parade Who decides rst the quotunreasonablenessquot The law enforcement has enormous discretion Law enforcement may consider 1 content and 2 circumstances Found criminal not because of the content but the noise violation questionable Takeaway lst amendment limits criminal law cant punish constitutionally protected right Equal Protection Rights Protected Lawrence V Texas D s were gay sodomy was illegal Caught in the act Since this law brands homosexuals as criminals it makes it more difficult for them to be treated like everyone else Violates equal protection and legally allowing discrimination Takeaway Criminal law cannot punish constitutionally protected rights Common wealth v Dodge Prostitute caught in a sting Not fraudulent enticement she would have been there anyway Takeaway Punish because community has interest in getting rid of prostitution Sometimes individuals have to give up rights to please community The Basis in Common Law Common Law Common law has been said to be the sum total of the authoritative materials which guide and direct the judicial and administrative organs of the state in the performance of their official functions 1 By usage and custom certain rules come to be accepted both for settling ordinary disputes or controversies between man and man 2 There then gradually develops a complicated set of rules principles concepts and standards which are enforced by the courts although they have never been adopted by any legislative enactment 3 Common law is largely if not wholly the result of judicial decisions 4 Under the Constitution of the United States as interpreted by the Supreme Court no misdeed is punishable by the federal court merely because it was recognized as a commonlaw crime 5 Common law is old and constantly evolving 6 Court s reliance on stare decisis 7 Every kind of rule we live by that isn39t a statute is common law Model Penal Code The Model Penal Code was written in the 1962 and has been adopted by most states It is still rooted in the common law Not directly binding The MPC is not directly enforceable in any state But over half of the states have enacted criminal statutes that draw heavily on MPC wording or concepts Challenges to the Common Law 1 D5 may use common law challenges as defenses 2 Vagueness historical basis may be too broad and interpretations may differ The Basis in Common Law CASE LAW State v Palendrano Woman is accused of being a quotcommon scoldquot Gives law enforcement too much discretion the danger is arbitrary selective prosecution Takeaway Just because the law existed in common law it is still subject to modern tests for legality quotvoid for vaguenessquot Weishaupt v Common wealth D indicted for raping his wife uses a common law defense The common law had evolved A wife can unilaterally revoke her implied consent where she has made manifest her intent to terminate her marital relationship by living separate refraining from voluntary sexual intercourse and conducting herself in a manner that establishes the end of a marriage Takeaway common law can and in some cases should evolve slow evolution Constitutional Limitations Constitutional Limitations on the Law The US Constitution imposes important limits on punishments that may be imposed by federal and state legislatures First Amendment Protects the freedom of speech Fourth Amendment Bars unreasonable searches and seizures Fifth Amendment a quotDouble Jeopardyquot Bars the government from trying a person twice for the same charge and b Bars the government from depriving a person of life liberty or property without due process of the law Eight Amendment Prohibits Congress from imposing cruel and unusual punishment Legality Principle Under this principle a person may not be punished unless his conduct was de ned as criminal before he acted The Legality Principle is essentially the rule against quotretroactive punishmentquot Constitutional Underpinnings The Legality Principle is not expressly stated anywhere in the constitution but several clauses are inspired by the idea that retroactive punishment is unfair Void for Vagueness Doctrine The Legality Principle means that criminal laws that are unreasonable vague may not be enforced as to not violate the due process rights of the person being charged Requirements 1 Notice to the citizens What is credible and reliable identi cation Does that give notice to the public 2 The words in the statute must provide enforcement standards and guidelines So police of cers will know what is credible and reliable Also so juries and judges know what reliable and credible is More important of the two prongs Loitering aws pose these twin dangers of lack of notice and selective enforcement vividly Rule of Lenity When a criminal statute is subject to con icting reasonable interpretations the statute should be interpreted in the favor of the defendant Only comes into play when a statute is ambiguous Over Breadth The test for determining over breadth is whether the law on its face prohibits a real and substantial amount of constitutionally protected conduct Equal Protection This clause is essentially a direction that all persons similarly situated should be treated alike under the laws It is not legitimate for a state to base a law to harm a politically unpopular group Constitutional Limitations CASE LAW Void of for Vagueness Kolender V Lawson A criminal statute that requires persons who loiter or wander on the streets to provide a quotcredible and reliablequot identi cation Gives discretion to the police of cers and furnishes a tool for harsh and discriminatory enforcement Takeaway Example of the void for vagueness doctrine Over Breadth People v Barton D was ticketed for violating the Code of the City of Rochester when he allegedly waded into traf c on a highway exit ramp soliciting money from motorists In determining whether a regulation is content neutral the principal inquiry is quotwhether the government has adopted a regulation of speech because of a disagreement with the message it conveysquot Takeaway f law is suf ciently narrowly tailored it can restrict constitutional rights as long as it promotes gov39t interest Potts v United States Appellants were at the Supreme Court as part of a small group protesting the mistreatment of prisoners Dressed up in costumes and displaying banners The Supreme Court Plaza is a nonpublic forum the government can regulate speech there as long as the restrictions are reasonable and not an effort to suppress expression merely because public officials oppose the speaker39s view Takeaway lf law is sufficiently narrowly tailored it can restrict constitutional rights as long as it promotes gov39t interest Equal Protection Lawrence v United States Concurrence by Justice O Connor Texas law treats the same conduct differently based on the participants so it violates the Equal Protection requirement Takeaway It is not legitimate for a state to base a law to harm a politically unpopular group General Elements of a Criminal Act Four Elements All crimes have several basic common elements 1 a voluntary act actus reas 2 a culpable intent mens rea 3 concurrence between the mens rea and the actus reas and 4 no justi cation The Act Requirement quotActus Reasquot The defendant must have committed a voluntary act or quotactus reas The quotmental sparkquot to begin the voluntary act is different than mens rea MUST show the act rst Signi cance of Concept There is not an actus reas if there is 1 only guilty thoughts words states of possession or status 2 an involuntary act 3 an omission or failure to act without imposed duty and 4 a superveningsuperseding cause Thoughts Words Possession and Status Mere thoughts are never punishable as crimes however conscious possession of an object may sometimes constitute the necessary criminal act Act Must be Voluntary 1 Re ex or Convulsion An act consisting of a 1 re ex or 2 convulsion does not give rise to criminal liability Re exive selfdefense is not voluntary 2 Unconsciousness An act performed during a state of unconsciousness does not meet the actus reas requirement D will be found to have acted unconsciously only in rare s ua ons 3 Hypnosis Courts are split about whether acts performed under hypnosis are sufficiently involuntary that they do not give rise to liability The MPC treats conduct under hypnosis as being involuntary 4 Selfinduced state In all cases involving allegedly involuntary acts D s earlier voluntary act may deprive D of the quotinvoluntaryquot defense Knowledge of seizures etc Omissions The actus reas requirement means that in most situations there is no criminal liability for an omission to act unless there is the existence of a special legal duty to act or the law expressly makes omission sufficient 1 Special Relationship Where D and V have a special relationship most notably a close blood relationship D will be criminal liable for failure to act Failing to intervene in child abuse etc 2 Contract A legal duty may arise out of a contract 3 Danger was caused by D s conduct If the danger was caused even innocently by D himself D generally has an affirmative duty to then save V 4 Undertaking D may come under a duty to render assistance if he undertakes to give assistance This is especially true where D leaves V worse off than he was before The Act Requirement quotActus Reasquot CASE LAW Voluntary Act Killbride v Lake D drove his wife39s car and left it parked He returned a short time later to nd a traffic offense stuck to the inside of the windscreen saying that there was no current warrant of tness displayed In the present case there was no opportunity to take a different course this was not a result of his conduct Takeaway A superseding act can negate actus reas Actus reas requires either act or omission by D State v Hinkle D gets in an accident due to unknown brain tumor Actus Reas must be conscious The prosecution must prove he was conscious But the defendant sometimes must raise the issue Once it s raised if the state can t prove that he was conscious then there is no crime Takeaway There is no actus reas because man wasn t conscious act must be voluntary and conscious Omission Common wealth V Pestinikas D under contract to take care of old man V and starve him to death on a porch There was a suf cient contract between the parties to create a legally imposed duty Takeaway Actus reas can be ful lled by an omission which requires failure to carry out a duty to act People v Campbell D knew that V was planning of killing himself and gave him a gun and left him alone in his house after heavy drinking There was a moral obligation but it wasn t a legal obligation There was no voluntary act on the part of the D He can t even be charged with aiding and abetting because he wasn t present Takeaway Act or omission must be directly related to crime Possession People v Valot Marijuana found in D s hotel room he was sharing with several other people There was strong circumstantial evidence to support the court39s ndings D s control of the marijuana in the room was a fact reasonable inferred from the evidence D was convicted of control rather than possession of marijuana Takeaway Possession can be considered an act if the individual knows he possesses something Circumstantial evidence can be used to prove possession Common wealth V Buckley D was indicted for being present where a narcotic drug was illegally kept and deposited in a paper bag D could not have inferred there were drugs present There was no conscious possession Takeaway Possession can be considered an act if the individual knows he possesses something Circumstantial evidence can be used to prove possession The Mental Requirement Mens Rea or Culpability Generally Why Mens Rea Matters lntentionCulpability was universal and persistent in common law crime the idea was that people had to choose to do evil when good was an option A person had to have vicious will to be criminal Utilitarian Approach mens rea is necessary because it must be a choice People who chose to follow the law and be good encourage others to do so Retributive Approach mens rea is necessary because you only want to punish those who chose to do evil The criminal has to deserve punishment and they don t if there is no choice The Model Penal Code made the common law mens rea requirements more rational by limiting it to 4 possibilities Kinds of Culpability Purposer Knowingly Recklesst NegngnUy Wiggle like a little piggy strict liability Under the MPC the mens rea element applies to each material element of the crime 0 Material elements of offenses vary in that they may involve 1 the nature of the forbidden conduct or 2 the attendant circumstances or 3 the result of conduct 0000 0 Federal Statutes When mens rea is under a federal statute it may be numerous possibilities beyond the four mens rea standards identi ed under the MPC Under Federal statutes the mens rea element applies to the directly following words How far Is the question General Mens Rea CASE LAW Morisette v United States D was a junk dealer who took old bomb casings that had been lying unused at an Air Force practice bombing range and sold them for a pro t D was subsequently indicted and convicted of violating a statute that made it a crime to knowingly convert government property but that made no mention of intent Blackstone there must rst be a quotvicious willquot TAKE AWAY The mere omission from the language of the statute of any mention of intent is not to be construed as eliminating the element of intent from the crime General v Speci c lntent General Intent A crime requiring merely quotgeneral intentquot is a crime for which it must merely be shown that D desired to commit the act which served as the actus reas Speci c Intent A crime requiring quotspeci c intentquot is a crime for which D must in addition to desiring to bring about the actus reas must have desired to do something further The generalspeci c intent distinction usually matters in two situations 1 where D is intoxicated and 2 where D makes a mistake of law or fact 1 Intoxication Intoxication rarely negates a crime of general intent but may sometimes negate the speci c intent for a particular crime 2 Mistake Mistake of fact is more likely to be enough to negate the required speci c intent The Mental Requirement Mens Rea or Culpability Acting Purposely Model Penal Code A person acts purposefully with respect to a material element of an offense when If the element involves the nature of his conduct or a result thereof it is his conscious object to engage in conduct of that nature or to cause such result and If the element involves the attendant circumstances he is aware of the existence of such circumstances or he believes or hopes that they exist Common Language A person acts purposely with respect to a particular element if it is his conscious object to engage in the particular conduct in question or to cause the particular result in ques on Dif cult to prove Highest mens rea standard Purposely and Attempt requires a substantial step toward achieving a target crime with the purpose of committing it Speci c IntentSubjective Purposer CASE LAW State v Smith D an inmate with HIV threatened to kill corrections of cers by biting or spitting at them and actually did bite and puncture and of cer39s hands D appeals with the arguments Without dispute a bite cannot transmit HIV and Smith knew this when he bit the of cers The must prove intent TAKE AWAY Mens rea is personal and a subjective standard It matters was D beHeves People v Hood Count 3 assault with intent to murder lesser offense than attempted murder He assaulted by ring a gun while drunk TAKE AWAY There is a distinction between speci c intent and general intent Speci c intent requires the D to act with the purpose of achieving a goal High standard General lntent requires only that the D intended to act The Mental Requirement Mens Rea or Culpability Acting Knowingly Model Penal Code A person acts knowingly with respect to a material element of an offense when If the element involves the nature of his conduct or the attendant circumstances he is aware that his conduct is of that nature or that such circumstances exist and If the element involves a result of his conduct he is aware that it is practically certain that his conduct will cause such a result Common Language quotMental Awarenessquot The D is mentally aware of the nature of their conduct The biggest distinction between purposely and quotknowinglyquot relates to D s awareness of the consequences of his act D has acted knowingly is he was aware that it is practically certain that his conduct will cause a speci ed result Subjective Common Law default mens rea Willfully is de ned as Knowingly Ignorance and Willful Blindness Ignorance of the law is not an excuse so a person can knowingly violate a law that they didn t know existed as long as they knew their behavior Willful Blindness may be considered the equivalent of knowledge Requires a trigger and active avoidance after the trigger Occurs when a person should have found out the act was criminal but purposely doesn t to be able to claim innocence Must willfully decide not to nd out after something hints that there is something illegal that a reasonable person would try to nd out Knowingly CASE LAW Fabritz v Tra urig Federal Case Mother charged with abuse of her child quotCausing abusequot There is no mens rea element in the statute therefor you assume quotknowinglyquot because a case before in common law used knowingly TAKE AWAY Knowing is a subjective standard it is not what a reasonable person would have known but what that person knew United States V International Minerals D ships a dangerous substance Must know what he was shipping not that he knew he was violating the regulation TAKE AWAY Public welfare law requires knowledge only of the act not of the law FloresFigueroa v United States Knowingly uses means of ID of another person circumstance that must be proved beyond a reasonable doubt TAKE AWAY The model penal code applies mens rea to every element except a jurisdictional element United States v Giovannetti Ostrich Instruction in a gambling ring TAKE AWAY Wifu blindness is tantamount to knowing and requires active avoidance The Mental Requirement Mens Rea or Culpability Acting Recklessly Model Penal Code A person acts recklessly with respect to a material element of an offense when He consciously disregards a substantial and unjusti able risk that the material element exists or will result from his conduct The risk must be of such a nature and degree that considering the nature and purpose of the actor s conduct and the circumstances known to him it s disregard involves a gross deviation from the standard of conduct that a law abiding person would observe in the actor s situation Risk can take into account the circumstances known to the actor 2 parts of substantial risk gravity of risk and probability of risk Common Language A person acts recklessly if he consciously disregards a substantial and unjusti able risk The idea is that D has behaved in a way that represents a gross deviation from the conduct of a law abiding person The D must be aware of the risk Most courts hold that D is reckless only if he was aware of the high risk of harm stemming from his conduct Objective Standard Assessment of the risk Subjective Standard Conscious disregard Recklessly CASE LAW Common wealth V Welansky Many people die in a nightclub re A D must have chosen to run a risk rather than alter his conduct TAKE AWAY Both the objective standard and the subjective standard must be proved Common wealth V Huggins D driving a van full of children falls asleep at the wheel Modern rule requires a substantial risk and unjusti ed emergency situations are different TAKE AWAY Court can look at the totality of the circumstances to determine how the risk should have been assessed The Mental Requirement Mens Rea or Culpability Acting Negligently Model Penal Code A person acts negligently with respect to a material element of an offense when He should be aware of a substantial and unjusti able risk that the material element exists or will result from his conduct The risk must be of such nature and degree that the actor s failure to perceive it considering the nature and purpose of his conduct and the circumstances known to him involves a gross deviation from the standard of care that a reasonable person would observe in the actor s situation Risk can take into account the circumstances known to the actor 2 parts of substantial risk gravity of risk and probability of risk Common Language D fails to be aware of a substantial and unjusti able risk that is such that failing to perceive it is a gross deviation from a reasonable standard of care Objective GrossCriminal Negligence v Civil Negligence Civil Negligence is the lowest culpability It is very rare for a criminal statute to have a civil negligence standard usually found in public welfare offenses when there is a mens rea Criminal Negligence is quotgrossquot negligence That is the deviation from ordinary care must be greater than that which would be required for civil negngnce Negligently CASE LAW People v Hawk Involuntary manslaughter case for selling a gun to a man that killed a girl How do they prove the D s conduct Look to what D knew about the facts knew of the ghting knew of the suicide and murder threats TAKE AWAY Court looks at entire situation to determine if D acted without due caution or circumspection State v Goff D and the adults left children alone in the house to attend a Halloween party at a tavern several feet away House burned down Child in a bathtub example TAKE AWAY You don t have to prove subjective awareness here The standard is not just that the D should have known but that any reasonable person would have known and not knowing is a gross deviation from the standard of care United States v Hanousek Construction of a track pipeline burst The mens rea standard was criminal negligence Congress could have made the standard criminal neg if it wanted to but it didn t TAKE AWAY There is no constitutional right to a mens rea element so Congress does not have to require culpability The Mental Requirement Mens Rea or Culpability Mistake Model Penal Code Ignorance or mistake as to a matter of fact or law is a defense if The ignorance or mistake negatives the purpose knowledge belief recklessness or negligence required to establish a material element of the offense or The law provides that the state of mind established by such ignorance or mistake constitutes a defense Mistake of Fact A mistake of fact can be reasonable or unreasonable as determined by a jury Mistake of fact is a defense if it negates the mens rea required for the crime It must always been sincerely and honestly held by the D as determined by a Jury Reasonable mistake of fact exonerates D for speci c and general intent crimes Unreasonable mistake of fact exonerates D for speci c intent purposely but does not exonerate for general intent crimes ie knowingly Mistake of Fact CASE LAW United States v Short D tried to have sex with a woman in a porta potty bathroom There was a mistake He thought she had quotagreedquot to have sex with him TAKE AWAY Mistake instruction cannot be completely based on D s belief because an unreasonable mistake is not a defense to a crime requiring knowledge Mistake of Law Ignorance of the Law is not a defense However there are three exceptions 1 When the law has not been published or made available if there is no possible way for the D to know the law 2 A reasonable reliance on an actor who has authority to interpret the law this is rare but a defense in certain situations like buying a gun 3 Statute can decree that ignorance of the law is a defense when the mens rea requires an awareness that an act is unlawful or wrong Mistake of Law CASE LAW United States v Mancuso Convicted of violating a statute requiring him to register when traveling to and from the country He had no knowledge of the statute TAKE AWAY D was no guilty because he did not know about the law and there was a faulty system in the state s attempt to inform United States v Clegg D was transporting weapons in reliance of perceived authorization from high ranking military officers TAKE AWAY A D can reasonably rely on official statements from those with adequate authority note lawyers do not have the requisite authority Ratzlaff v United States A statute imposes a duty on all banks to report every transaction more than 10k D writes structured checks to evade this requirement The statute requires willful violation D said that he knew he was structuring but not that structuring was illegal TAKE AWAY Ignorance of the law is a defense if the mens rea is quotpurposefullyquot Strict Liability Action without Culpability Strict Liability Some offenses are strict liability That is no culpable mental state at all must be shown it is enough that D performed the act in question regardless of his mental state Public Welfare Crimes Public welfare crimes are crimes with no mens rea element passed by Congress to protect the people Factors of Public Welfare Offenses No stigma attaches to conviction Low punishment Misdemeanor or criminal ne Malim prohibitum wrong because king says so not wrong in itself Part of complex regulatory scheme To protect public against dangerous and deleterious devices Notice is given because you are in complex regulated industry Not common law offense Item is not in widespread use ie handguns v grenades Concern not to ensnare innocent behavior Would affect health and welfare of public Are all regulatory offenses public welfare offenses Not all regulatory offenses are public welfare offenses However all public welfare offenses are usually regulatory offenses Strict Liability CASE LAW Staples The statute has no mens rea and requires owners of machine guns to register their weapons Mistake is not a defense for the strict liability crime However D must have had adequate notice that the item was a particularly dangerous or special circumstance to given adequate notice guns v grenades TAKE AWAY In order to convict him under the act he must know or have reasonable notice that the item was the kind that the statute applies to Vicarious Liability Vicarious Liability In vicarious liability statutes sometimes impose upon one person liability for the act of another In essence the requirement of an act has been dispensed with not the requirement of the wrongful intent Often this is not allowed because it violates due process or because the burden and punishment on the D would outweigh the bene t to society Respondeat Superior An agent engages in a criminal act within the scope of the their authority for the bene t of the business Corportations A corporation may be liable for the acts of its agents Collective Knowledge Doctrine A corporation is deemed to know everything that its employees know and to be responsible for their collective acts Vicarious Liability CASE LAW Davis v Peach tree City An employee sold alcohol on a Sunday to a minor There is no mens rea in the local ordinance statutes it is not a common law crime so you cannot substitute in quotknowinglyquot for the mens rea TAKE AWAY The punishment in vicarious liability must not outweigh the bene t to society State v ZX Fraternity Prostitution and selling alcohol to minors at a frat recruitment event TAKE AWAY The fraternity may be liable for the acts of the brothers if they were authorized under the Collective Knowledge Doctrine Larceny Speci c Intent Themes of Property 1 Evolving Property 2 Evolving Purpose 3 Civil or criminal 4 Conversionmisappropriation 5 Courts v Legislature 6 Value and its impact on sentence Petit misdemeanor v Grand felony over 100 Under the Common Law there was a requirement of breach of the peace but eveolved into something very different with a different rational Forms of Taking Larceny is a crime without force or fear just a taking Robbery is a taking with force Armed Robbery is a taking with force and a weapon Embezzlement is a taking by breach of trust Elements Common law larceny consists of 6 elements 1 Trespass on the goods De ned as quottaking without permission or consentquot Consent voids the trespass because it precludes the harm Larceny by Trick evolves into fraud the trick voids consent 2 Taking A taking occurs if the D established dominion and control wholly inconsistent with the rights of the owner The D does not have to leave the premises to take control 3 Carried Away quotasporationquot A D must move the property even if only a quothair s widthquot Modern law combines taking and carrying into one element 4 Personal Property De nition of property has recently become more expansive but still depends on the state civil law There is no federal theft statute Does not include land animals or services To determine the value of the stolen property for sentence grade and of the object is property the court may consider Actual Value Appraisal Market Value Black market and Commercial what a person would pay for it Cost to Produce 5 of Another At the time of taking some person other that the D must have an immediate right of possession 6 Intentpurpose to deprive owner permanently mens rea The D must not intend to return the property to its owner The mens rea applies to all of the elements Larceny is a speci c intent crime the actor must knowing act with the further purpose of depriving the owner A claim of right even if unreasonable negates the mens rea Larceny CASE LAW 1 Trespass on the Goods Topole wski v State D planned to steal barrels of meat and the Director planned to facilitate the taking All of the elements are obviously met except for one Is there a trespass No not here TAKE AWAY A party can entrap a suspected thief however there is a ne line between entrapment and consent to larceny Hufstetler v State D tricked the owner into consenting to give him gas by acting like he was going to pay for it TAKE AWAY Larceny by trick will void any consent given 2 Taking People v Olivio Shoplifter caught before leaving the store 3 cases in one tools jacket book TAKE AWAY A D can still commit a taking before leaving the premises by exercising dominion and control wholly inconsistent with the continued rights of the owner People v Rivera D couldn39t get a car off the lot He still took complete control severing the possession of the owner Thompson v State The offense does not stand if the D fails to acquire dominion knocks to coins away TAKE AWAY It is not enough to merely deprive the owner of use the D must also take away the property 3 Carried Away Caruso v State D only moves the safe 5 feet but the movement still constitutes carrying away TAKE AWAY Minor movement is enough 4 Personal Property People v Ashworth Two brothers contract to spin wool They use the equipment at a third party company to do so TAKE AWAY Distinguishes between physical property and property rights quotUsequot is not property that can be carried away Lund v Commonwealth Theft of the use of computers would be criminal under fraud or criminal misappropriation but not larceny TAKE AWAY Neither labor nor services can be carried or taken away State v McGraw Use of computer at work for personal business quotUsequot of a computer is within the de nition of property in this jurisdiction but the victim must be deprived of that use TAKE AWAY Shift in purpose United States v Collins Statute uses term quotthing of valuequot instead to broadly encompass anything with a subjective value Regina v Stewart When a D takes pure information the victim must be deprived of it to constitute larceny TAKE AWAY Courts v Leg Legislatures can take a larger view and greater consideration through debate Courts see a smaller detailed picture and ll in the gaps United States v Farraj Lawyer attempts to sell a case plan TAKE AWAY A good is de ned as a subject in commerce and if information is stolen for sale it is a good 5 of Another State v Cohen A person may be guilty for theft of their own property if someone else has possession under a lien 6 Intentpurpose to deprive owner permanentlv Chadwell v State A stolen jacket that contained a wallet TAKE AWAY D does not have to know the true value of the property taken D must only intend to take the property Rape General Intent Dif cultv in De ninq Common Law Rape Sexual intercourse with force against the will on the victim quotCarnal knowledge of a woman forcibly against her willquot quotCarnal knowledgequot is sexual intercourse penetration is not required just penisvagina or penisanus contact Reformers have attempted to shift the focus away from the actions and behavior of the victim Thus the main reform has been focused on the common law element of force and eliminating its original unstated resistance requirement Department ofjustice39s Reformed De nition The 1 penetration no matter how slight of the vagina or anus with any body part or object or oral penetration by a sex organ of another person 2 without the consent of the victim Force Fear and Resistance Force Most jurisdictions require some type of force including the addition of fear of force Mens Rea usually only requires knowledge by the D that the D was using force Force creates an unstated element resistance is used to prove the element of force Fear An element requiring only fear of force eliminates the need for the victim to actively resist in order to prove force was used Two Components Subjective Did the victim genuinely entertain a fear suf cient to induce submission Objective Was the victim s fear reasonable under the circumstances Resistance ls never actually an express element within the statutes Express Consent Some courts instead require consent to the speci c act rather than resistance force or fear This focuses on a person s right to autonomy of their body Bv Coercion and Fraud Coercion Coercion may be considered constructive force because it can essentially force the victim into consent but the standard is statute dependant Fraud Two types with different results Fraud in the lnducement is not a crime If the act is done as the D stated it would be but it is for some collateral or ulterior purpose Fraud in Fact is a crime If an act is done that is different from the act the D said he would perform Consent and Mistake Mistake of Fact Only applicable when the mens rea element requires knowledge of the victim s lack of consent If it doesn t mistake of fact does not negate the mens rea The majority of jurisdictions allow mistake of fact as to consent as a defense Mistake must be reasonable because this is a general intent crime Post Penetration Rape The critical element is continuation under compulsion The tendency is to look to the V s actions again here which is against the goals of reform The D has a reasonable time to stop penetration this is a question of fact for the jury Rape CASE LAW Force Fear and Resistance People V lniguez V was raped on the night before her wedding froze in fear and allowed the rape to occur lasted one minute actions afterward showed fear her mind went somewhere else Elements 1 sexual intercourse 2 force 3 fear 4 against the will TAKE AWAY The court will objectively and subjectively determine fear People V Thompson Sodomy in jail The threat of physical injury can be a substitute for actual force if it compels the victim to not resist Elements 1 sexual intercourse 2 physical force or the threat of physical force that would cause 3 immediate physical injury TAKE AWAY This is a subjective look at what the victim fears under the objective circumstance under the situation Common wealth v Berkowitz Statutes requires quotforcible compulsionquot may require more resistance than just a lack of consent language important Elements1 Elements 1 Sexual intercourse 2 forcible compulsion and 3 threat TAKE AWAY Saying quotnoquot might negate consent however it does not prove force In the Interest of M7ZS Permission for the actual act may be required though it can be inferred from reasonable surrounding actions Moohr says Mistake of fact can be used as a defense in this Jx TAKE AWAY This court focuses on whether the autonomy of the victim has been injured By Coercion and Fraud Common wealth v Caracciola D impersonated a cop and threatened to arrest her gun present TAKE AWAY D used constructive force to coerce the V into submission Common wealth V Mlinarich V was given a choice of having sex or being sent to a detention home TAKE AWAY There is no forcible compulsion when the victim has a choice State v Bolsinger D touched boys claiming he was checking them for cancer Court says it was fraud in the inducement because he did what he told the boys he would do with different motives Consent and Mistake Commonwealth V Lopez V goes into the woods with the D Court violates the Golden Rule by interpreting quotagainst the willquot as an attendant circumstance instead of an element allowing the mens rea to not apply to consent TAKE AWAY The knowledge that it is against the V s will in not an element The court can t even look to see if this is a reasonable mistake because the mens rea doesn t apply Commonwealth V Fisher Rough sex in a dorm The precedent says that there is no mistake of fact defense Mistake of fact defense becomes more necessary as the de nition of force is broadened because a broad force de nition requires less evidence by the prosecution Homicide DegreesMaliceIntent to Kill Homicide Generally Homicide Causing the death of a human being with no justi cation and no excuse Homicide is divided into two categories 1 Murder and 2 Manslaughter Murder Causing the death of a human being with malice Manslaghter Causing the death of a human being without malice Degrees of Homicide Degrees of murder are based on the common law CapitalFirst Degree Murder If the D acted purposefully planned premeditated deliberated 0 First Degree Murder punishment harsh Niece who poisons her aunt to get herinher ance 0 Some states say it depends on the victim police of cer 0 There must be intent to kill 0 Three ways to get rst degree Conduct in common law Status of the victim Statutory delineation Second Degree Murder the default 0 Not punishable by death Murder requires Malice Malice is used in a technical sense including not only anger hatred and revenge but every other unlawful and unjusti able motive It is not con ned to illwill towards one or more individual persons but it intended to denote an action owing from any wicked and corrupt motive a thing done mao animo where the fact has been attended with such circumstances as carry in them the plain indications of a heart regardless of social duty and fatally bent on mischief Malice is implied from any deliberate or cruel act against another however sudden Intent to Kill Malice The death must be intendedpremeditated TWO WAYS 1 Purpose Heightened intent to kill Premeditated to kill or in ict great bodily harm o Intent The Common Law mens rea term intend is the synonym of knowledge in that you mean to do that conduct Acting with the purpose of accomplishing the act 0 First Degree Murder 2 Knowledge Knows that his act will cause death Intent to Kill CASE LAW State v Meyers Husband tells him wife to jump in a river and she drowns TAKE AWAY Premeditation can be found in the quottwinkling of an eyequot Circumstantial evidence is enough to prove intent Homicide Intent to ln ict Great Bodily HarmDepraved Heart Murder Intent to ln ict Grevious Bodily Harm Malice The D kills with the speci c intent to in ict great bodily harm Speci c Intent The D must actively desire the consequences This may be proved by direct evidence or inference from the circumstantial evidence Must have clear evidence of malice We see causation issues under this category In a st ght there must be something else Fist ght Intent to ln ict Great Bodily Harm CASE LAW State v Thompson D tried to steal money from a church Beats up and kills pastor that discovers him If there is a weapon it if easier to prove intent TAKE AWAY It is not the source or the injuries but the severity of the injuries which we nd suf cient proof of a speci c intent to in ict great bodily harm People v Geiger D beat up his wife amp placed her unconscious in his car He didn t take her to the hospital until the next morning Wife died from choking to death on her own vomit Presents a causation issue because she actually died from choking on her vomit TAKE AWAY Extent and nature of the injuries force leading to the beating and the failure to get the victim necessary medical attention shows an intent equivalent to criminal purpose aimed against life intent not very clear required circumstantial evidence Depraved Heart Murder Implied Malice Recklessness Plus Behaving with extreme indifference to the value of human life Standard Subjective awareness of an objective risk Requires a balancing of the subjective understanding and the objective awareness of what was understood Similar to involuntary manslaughter you need something more the plus Implied Malice requires that the D know that their conduct endangers the life of another and acts with conscious disregard for that life Depraved Hearth Murder CASE LAW People V Knoller D s dangerous dongs attacked and killed a woman in an apartment complex TAKE AWAY Gives us the subjectiveobjective test State v Hemphill D s baby died from Shaken Baby Syndrome TAKE AWAY Evidence suf cient to show malice because the D s act was done so recklessly as to show disregard for human life Objective standard applied Homicide Felony Murder Felony Murder a typically unintentional killing that occurs in the course of a felony or attempted felony Two purposes for this kind of homicide 1 Stop felonies and 2 Make criminals more careful This isn t really aimed at deterrence because felony murders are usually accidents Intent The D need only to intend to attempt to commit the felony It is easier for the state to prosecute a murder as felony murder because they don t have to prove mens rea Which felonies There are many limitations of felony murder because it violates the principles of criminal law 1 Must be dangerous Some felonies are inherently dangerous BREAKAR o Burglary Robbery Escape Arson Kidnapping Assault RapeSexual Assault For other felonies there are 2 ways a jurisdiction may approach deciding if it is dangerous by statute 0 Dangerous as Committed Looking at the facts was it inherently dangerous broadens the application of felony murder Dangerous in the Abstract Could the felony be committed in a way that is not inherently dangerous stricter test 2 The killing must be independent of the felony otherwise it is merged into one crime 3 The death must occur in the course of the felony or in furtherance of it 4 The felon must be responsible for the death When it occurs by someone else s hand there are 3 approaches for deciding if the felon is responsible jurisdictional o Causation Theory quotBut for the felon the death would not have occurredquot not the current trend too wide reaching 0 Agency Felon is responsible for the acts of his agents cofelons but not the acts of cops or bystanders 0 Black Letter Rule There is no felony murder unless the D killed the victim Felonv Murder CASE LAW People v Howard D was eeing police in a car chase and driving recklessly when he ran a red light and killed another driver going through an intersection TAKE AWAY This court determines whether the felony is inherently dangerous in the abstract nds that ight from an officer is not inherently dangerous due to the other acts included in the statute that are not inherently dangerous Barnett v State D red on a group of people standing on the street while moving in a car Killed one TAKE AWAY This court abandons the merger doctrine minority view State v Maudin D sold victim heroin Victim died of overdose later when he injected himself TAKE AWAY Law does not extend that far sequential death is not enough for felony murder Commission of felony had completely terminated by time of death jackson v State Police officer accidentally killed a hostage while trying to apprehend eeing D after a bank robbery TAKE AWAY Homicide committed in perpetration of the felony of kidnapping But for the kidnapping there would not have been the gun re by police jurisdiction follows actual causation test Homicide Manslaughter Voluntary Manslaughter Purposeful actknowing act Causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden violent and irresistible passion resulting from serious provocation suf cient to excite such passion in a reasonable person Time Interval However if there should have been an interval between the provocation and the killing suf cient for the voice of reason and humanity to be heard of which the jury in all cases shall be the judge the killing shall be attributed to deliberate revenge and be punished as murder ELEMENTS of Heat of Passion 1 adequate provocation 2 extreme mental loss of control and 3 insuf cient time to cool off Paradigm in common law 1 you and your spouse committing adultery and actually seeing the spouse committing adultery it must be immediate it didn t matter whether the lover was dead or the spouse was dead 2 ghts rage engendered by ghting The issue is not that a reasonable person would commit the act but whether a reasonable person would be quotrocked to the corequot affected by passion Words were never enough but they are today if they are words of information quotyour wife is sleeping with her bossquot Failed Self Defense or Imperfect Self Defense If D had unreasonable belief but still a subjective belief that he needed to kill to defend himself the Court may lower the charge to VMS Voluntary Manslaughter CASE LAW State v Soto D heard about a beating then the next day provided a gun for the killer D claims he was provoked by beating TAKE AWAY Ct says the provocation was not adequate they also seem to point to the cooling off time he had Bridgehouse DF knows about affair for long time and nally sees the man in person he left the room then came back TAKE AWAY simmering v immediate Close case Court rules this was VMS People v Najera D kills a man for calling him a fag TAKE AWAY Words are never enough The focus is on the provocation and surrounding circumstances and whether it was suf cient to cause a reasonable person to act rashly State v Faulkner Brothers in a bar ght with another guy and say they are acting in selfdefense TAKE AWAY Absent malice a D cannot be convicted of murder nevertheless because the killing was committed without justi cation or excuse the D is not entitled to full exoneration Homicide Involuntary Manslaughter Involuntary Manslaughter Involuntary manslaughter is committed unintentionally The state of mind or mens rea which characterizes involuntary manslaughter is recklessness or gross negligence a great departure from the standard of ordinary care evidencing a disregard for human life or an indifference to the possible consequences of the actor39s conduct Requires recklessness Subjective consciousness of the risk objective disregard of the risk Involuntary Manslaughter CASE LAW Common wealth V Welansky D s club caught on re and tons of people died because of inaccessible exits lnchoate Crimes Attempt Mens Rea Attempt requires speci c intent with purpose to complete the target offense Even if the crime is general intent you still need speci c intent to prove attempt because you cannot attempt to complete a reckless act Intent may be established through circumstantial evidence Attempt may be harder to prove than the target crime Actus Reas The conduct required to prove attempt must be greater than preparation but something less than perpetration Common Law looks at what is left to be done by the accused quotdangerously neaH39 Hardly anybody uses quotslight actsquot Model Penal Code looks at what the accused has done quotSubstantial stepquot broader and more likely to nd attempt if this test is used The act does not prove mens rea But the acts help show a manifestation of intent Argue by breaking down the conduct Two Kinds of Attempt 1 The D does everything possible to complete and doesn t Just by fortuity and accident he wasn t successful The attempt was complete but not successful 2 The other is when they have things left to do This is an incomplete attempt that is also unsuccessful There are many things to do so that the perpetration has not been completed Merger Doctrine If the attempt is successful then you don t charge for both the crime and the attempt you charge only for the crime If the attempt is unsuccessful then you charge only the attempt You don t charge the attempt and the target this is called quotmergerquot when the attempt merges with the target once it is completed Attempted Manslaughter Attempted involuntary manslaughter is impossible Attempted voluntary manslaughter is less certain Modern trend is to allow liability Punishment Model Penal Code suggests punishing as though the crime was completed most states reject It is human nature to not want to punish absent harm Abandoning an Attempt Two views 1 Once the attempt is completed you cannot abandon majority You can t abandon something that has already happened Policy The D has already shown that they are dangerous bad mens rea suf cient 2 MPC Theory The D can abandon a completed attempt as long as the D voluntarin and completely abandons it If an intervening force interferes and D abandons this is not voluntary ie being scared Policy Have of target has not yet occurred and there is a desire to give the D an incentive to back out Impossibilitv Defense Modern View There is no distinction between factual impossibility and legal impossibilitylf the factscircumstances were as the D thought they were would the D be committingattempting the target crime lnchoate Crimes Attempt CASE LAW Mens Rea Thacker v Common wealth The D and his friends got drunk at a church festival tries to quotshoot the light outquot in the tent and nearly misses a woman and her baby Not guilty of attempted murder because intent wasn t there People v Stone the D a member of a violent gang pulled up to a group of rival gang members and red a gun No one was injured He CAN be convicted of attempted murder because he had an intent to kill even though the government couldn t nd a primary target You can only be convicted of one count of attempted murder It is the attempt to kill a human being not a particular human being State v Casey D tries to shoot his girlfriend in a car and the gun mis res TAKE AWAY It must be established that the D acted intentionally purposefully and not enough that they acted knowingly Actus Reas United States v Lee Man charged with attempted enticement of a minor TAKE AWAY The court looks at the totality of his actions and the circumstances to determine that the D went beyond mere preparation to quotsubstantial stepquot People v Mahboubian Attempted grand larceny and burglary with the artwork and insurance fraud TAKE AWAY The Court said they were using the quotdangerously nearquot test but actually applied the quotsubstantial stepquot test to nd the D guilty People v Brown D is charged with attempted theft in trying to steal the pop bottles He didn t have the tools or help necessary The case cites cases that are far worse burglars on a roof that were still not dangerously near TAKE AWAY The Court said they were using the quotsubstantial stepquot test but actually applied the dangerously near test to nd the D not guilty lnchoate Crimes Attempt CASE LAW Completed Attempt Lightfoot v State In an unusual case D helps to rob a Laundromat and the robbery is successful but D is charged with attempt TAKE AWAY The wording of the statute is important It s how he is able to be charged with attempt Abandonment People v Staples Man rents an apartment above a bank and tries to drill through the roof into the vault D wasn t caught in the act but the quotdrillingquot activity clearly was an unequivocal and direct step toward completion of the burglary TAKE AWAY D cannot abandon an attempt after you have shown enough actus reas to show your intent Impossibility Commonwealth V Henley D was convicted of attempted theft by unlawful taking of fake stolen jewelry TAKE AWAY Either impossibility is not a defense if the completed offense could have occurred had the circumstances been as the accused believed them to be People v Dlugash D pulled his gun and shot a guy ve times that had already been shot and he claims to have thought he was dead TAKE AWAY There is sufficient evidence to prove that D might have thought V was alive It makes no difference whether the V was alive or not United States v Oviedo D convicted of the attempted distribution of heroin but the substance was not actually heroin The D says that he knew it was not heroin but an attempt to rip of the agent TAKE AWAY There was a material element missing the in the crime the illegal substance so it was actually impossible to be convicted under the law even though it seemed as though he thought the substance was illegal There was a PURE legal impossibility which is a defense lnchoate Crimes Conspiracy Conspiracy Conspiracy is an agreement between two or more persons formed for the purpose of committing a crime It serves two distinct purposes 1 It serves a preventative function by stopping criminal conduct in its early stages of growth before it has a full opportunity to bloom 2 The belief that serious group danger is present Joint action is more dangerous that individual action Elements 1 Agreement to commit a crime 2 Overt act in furtherance of the agreement This element exists to help show an agreement was made The act does not need to be illegal Mens Rea Purpose the D must agree with purpose to do something else Knowledge plays an important role in nding whether there was an agreement or not Actus Reas Agreement Just being a member of a group is not enough The agreement does not need to be express It can be implied Policy 1 Vicarious liability D can be charged with crimes of coconspirators if it is within the scope of agreement furthers the conspiracy and reasonably foreseeable Pinkerton 2 D can be punished twice for the same conduct Conspiracy and target crime do not merge 3 Hard to withdraw Many states require the D to tell coconspirators andor the police some require efforts to dissuade 4 Mass Trials Evidence against one will apply to all Hearsay exception for conspiracies applies even before the conspiracy is proven 5 Conspiracy statutes can be vague Knowledge of CoConspirators The D doesn t necessarily have to have actual knowledge of other coconspirators Constructive knowledge is enough Example Drug distribution involves growers smugglers retailers etc and the parties must know the others exist Chain v Hub and Spoke lnchoate Crimes Conspiracy CASE LAW People v McChristian A gang of youth was charged with conspiring to kill 5 people in a car There was a lack of evidence Conspiracy can be proved by 1direct evidence or 2 circumstantial evidence TAKE AWAY Not guilty because the State would have to prove that of those who red each would have to knowingly agree to shoot at those speci c 5 people in the car United States v Feola D conspire to rip off undercover federal agents by selling them fake drugs Judge Learned Hand s traf c light analogy is bad law TAKE AWAY The awareness of the federal agent status is irrelevant United States v Bruno D were indicted along with 86 others for a conspiracy to import sell and possess narcotics TAKE AWAY The knowledge of the quotchainquot and the success of one part was dependent upon the success of the whole is enough Direct Sales v United States Drug company sells to a doctor who is distributing illegally Compared to Falcone where the D was selling ordinary items for moonshine Mere buyers and sellers cannot be guilty intent requires knowledge TAKE AWAY The D was on notice due to the type of product and amount There was suf cient evidence to prove knowledge and implied agreement in furthering the target A lot depends on the nature of what is being distributed The nature prove 2 things 0 1 one if for making certain that the seller knows the buyers indended illegal use o 2 the other is to show that by the sale he intends to further promote and cooperate in it Common wealth V Donoghue D was loan sharking at a time that it wasn t illegal There was a very broad statute covering conspiracy TAKE AWAY Within the contemplation of criminal conspiracy are acts which by reason of the combination have a tendency to injure the public to violate public policy or to injure oppress or wrongfully prejudice individuals collectively or the public generally this should be punished under this jurisdiction Pinkerton v United States D charged for the acts of his brother while he was in jail TAKE AWAY There is no evidence that the D took affirmative action to renounce his participation in the conspiracy Therefore the conspiracy is continuous and covers the substantive offenses committed by the co conspirator alone lnchoate Crimes Accomplice Liability Aiding and Abetting Elements 1 Completed Offense 2 D had a desire that the crime succeed 3 An act of helping or furthering the crime by D Not Vicarious Liability because it requires mens rea and an act Aider and Abettor is liable for conduct of the actor who commits the crime There cannot be an essential element missing State v Gladstone D was found guilty of aiding and abetting another in the unlawful sale of marijuana There was no link between him and the dealer He had no association with him There must be a proven completed offense However there need not be consistent verdicts Standefer v United States one guy acquitted the other guy charged for giving gifts to government officials Mere presence might be enough if the aider and abettor is there to as an enforcer or offers even one word of encouragement This is a very case by case basis argue both ways on an exam United States v Garguilo Case where two counterfeiters scout out the stores the DF was only present didn t do or say anything Ex Girl in passenger seat when car is crossing the border carrying illegal immigrants presence alone may be enough there Words on their own can be enough in aiding and abetting United States v Kelley The D is the crime of the people he advised to scam the government in taxes There must be some overt act to negate aiding and abetting State v Formella kids are the lookout for others stealing a test in a school Decided to not participate but didn t do anything to stop it
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