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killing another, the careful and judicious use of the death penalty may be appropriate if

carefully employed. Georgia's death penalty statute assures the judicious and careful use

of the death penalty by requiring a bifurcated proceeding where the trial and sentencing

are conducted separately, specific jury findings as to the severity of the crime and the

nature of the defendant, and a comparison of each capital sentence's circumstances with

other similar cases. Moreover, the Court was not prepared to overrule the Georgia

legislature's finding that capital punishment serves as a useful deterrent to future capital

crimes and an appropriate means of social retribution against its most serious offenders.

Age Limit for DP:

o  Thompson v. Oklahoma (1988) – Ruled that 15 year old cannot be executed;

 Stanford v. Kentucky (1989) – Age limit is 16 for execution (16 at the time of the crime);

 Simmons v. Roper (2005) – Age limit is 18 for execution (Law today).

 Oklahoma is the only jurisdiction to kill a 16 year old (Scott Haim) and last to kill

someone 17 or younger (Shawn Sellers)

- Arguments For Death Penalty:

 Retributive (lex taleonis “eye for an eye”): the payback.

a) Proportionality ideal – the crime resulted in a death, therefore the punishment should

be a death: the payback.

 Deterrence (General or Specific)

a) Coyne said that in reality, DP is Specific only – Not general because people don’t

pay attention to other people’s punishments.

 Cheaper than Life Incarceration

a) Coyne said not true because of cost of appeals (the convicted has the 60% to

have a new trial).

Arguments Against Death Penalty:

−  DP violates EPC because DP isn’t administered equally among races

b) Note: If you have a state case and have a due process issue, its ok to cite either 14th

or 5th Am cases because due process is considered synonymous for both.

 Most other countries have abolished it

a) Ex’s of countries that still have it: North Korea, China, Iraq, Iran, Saudi Arabia –

We’re nothing like these countries, and they’re in fact our enemies.

 Mistakes

 Evolving Standards of Decency

2. THE NEW CAPITAL STATUTES:

19

OLSEN V. STATE (2003): court case where Olsen killed three in bar and robbed the place.

Problem was with jury instruction during death sentence phase, in that the (1) jury improperly

found that the crime was especially atrocious (he killed them, but without torture them), that there

19 From the Olsen’s trial:

Explaining that mitigating evidence means that the jury does not have to impose death, defense counsel provided the jury

with this definition:

“It all boils down to after you look at the mitigation, after you look at the aggravation, to this very simple question that Mr.

Green asked of Dr. Logan. I have the exact wording of that because I have the page of this transcript so I can go to it. It all

boils down to this very simple question, this very simple answer. The question by Mr. Green:

“Q. But your considerations might also not have any bearing at all on what really happened that night; would you agree

with that?” Logan’s answer:

“A. Well, I don’t think he would have robbed that store if he wasn’t depressed, and if he wasn’t drinking, and if he hadn’t

had the head injury. But if you remove all three of those things, I don’t think he would have been there that night.”

Ladies and gentlemen, that’s mitigation. It doesn’t excuse it, it doesn’t justify it, but certainly, ladies and gentlemen, it argues

very strongly in favor of a life sentence.”

During voir dire of the jury panel, defense counsel told the entire venire of prospective jurors:

“Ladies and gentlemen, before we start I’m going to tell you, I’m going to admit to you, that the issue in this case will not

involve who did the shootings. That won’t be the issue. We admit, ladies and gentlemen, that Martin Olsen shot all three of

the individuals concerned in this case; Emma McCoid, Kyle Baumstarck, Art Taylor. That he did that on the evening of

January the 20th, we admit that, that he shot them. They were facedown and he shot them in the back of the head. That he

took money from that establishment and he left. He was ultimately captured near Buffalo. We admit all those facts, ladies and

gentlemen, they are facts. They are there. He’s confessed to it, many of you pointed that out in the questionnaires, that he’s

confessed to it. He’s not only confessed to police officers he’s confessed to his mother.

So before we start, I wanted to get that on the table. That won’t be an issue. Okay. Do all of you understand then what I just

told you? Do all of you understand that? What will be an issue in this particular case, ladies and gentlemen, is the degree of

guilt. That’s why we’re here.” 33

was (2) insufficient evidence that Olsen created a great risk to two or more people (debatable, if I

kill one person a I put in danger two, DP; if I kill 3 people but no one else is in danger, NO DP?), and

that there was an (3) improper jury instruction on the law of mitigating circumstances and the

decision making process.

Nevertheless, there was the “purpose of avoiding the arrest” as Olsen confessed (so, aggravating

circumstances).

The Supreme Court of Wyoming conclude that Olsen’s jury was not properly instructed ont hte

law of mitigating circumstances and they vacated the sentence of death and remand for a new

sentencing hearing.

Who is the sentencer:

 Florida and Alabama: the jury could make recommendation on life or death but the final power

lay with the judge.

 Arizona: Trial judge after Walton v. Arizona.

AGGRAVATING CIRCUMSTANCES:

The prosecution must prove BEYOND A REASONABLE DOUBT the existence OF AT

o LEAST ONE of the following aggravating circumstances in order to create eligibility for

the death penalty. The jury must also unanimously agree on the existence of the same

aggravating circumstance.

It is constitutionally required that aggravating circumstances narrow the class of persons

o eligible for the death penalty (cannot have an agg. cir. that is common to all people)

 Narrowing & Individualized Sentencing to avoid arbitrariness or capriciousness

Aggravating Circumstances from MPC:

o  1. The murder was committed by a convict under sentence of imprisonment;

 2. The defendant was previously convicted under another murder or of a felony

involving the use or threat of violence to the person;

 3. At the time of the murder was committed the defendant also committed another

murder;

 4. The defendant knowingly created a great risk of death to many persons;

 5. The murder was committed while the defendant was engaged or was an accomplice in

the commission of, or an attempt to commit, or flight after committing or attempting to

commit, robbery, rape or deviate sexual intercourse by force or threat of force, arson,

burglary or kidnapping;

 6. The murder was committed for the purpose of avoiding or preventing a lawful arrest

or effecting an escape from lawful custody;

 7. The murder was committed for pecuniary gain.

MITIGATING CIRCUMSTANCES:

LOCKETT V. OHIO (1978) SC Rule: The defendant may introduce anything which

o defendant chooses to proffer for a sentence LESS than death as long as it is relevant to the

defendants:

1. Record;

2. Character, or;

3. Circumstances of the offense.

Standard of Proof: Prove mitigator outweighs aggravators by a PREPONDERANCE of the

o evidence to the satisfaction of one juror (this is all it takes for a hung jury à punishment less

than death):

 Some general examples of mitigating circumstances:

a) Finding God, victims of abuse their entire life, justified in murder (despicable

victim), genuine remorse

b) Mentally ill, Mercy Killing, Addiction (double edged evidence – could be

aggravating and mitigating)

c) The defendant has no significant history of prior criminal history (but this issue

presents the admissibility’s problem by FRE 404(b)).

d) The murder was committed while the defendant was under the influence of extreme

mental or emotional disturbance

e) The victim was a participant in the Defendant’s homicidal conduct or consented to

the homicidal act 34

f) The murder was committed under circumstances which the defendant believed to

provide a moral justification or extenuation for his conduct

g) The defendant was an accomplice in a murder committed by another person and

his participation in the homicidal act was relatively minor

h) The defendant acted under duress or under the domination of another person

i) At the time of the murder, the capacity of the defendant to appreciate the criminality

of his conduct or to conform his conduct to the requirements of the law was

impaired as a result of mental disease or defect or intoxication

j) The age of the defendant at the time of the crime (too young to be recognize the

criminality of his conduct)

 The MPC prescribes the list but the actual enumeration is less significant than might

appear, since the defendant has a constitutional right to present any mitigating

evidence or circumstances, whether listed by statute or not. Look MPC §210.6 “… and

any other facts that it deems relevant”

 Reverse mitigating circumstances: see pg. 479, People v. Kuntu, “the court dismissed

state’s contention (of use a mitigating circumstances ad an aggravating circumstances)

because the prosecutor’s creative use of a normally extenuating factor would have been

proper had the legislature not already earmarked absence of criminal history as

mitigating.” WEIGHING THE CIRCUMSTANCES

MPC § 210.6: “The Court, in exercising its discretion as to sentence, and the jury, in determining upon

its verdict, shall take into account the aggravating and mitigating circumstances enumerated in

Subsections (3) and (4) and any other facts that it deems relevant, but it shall not impose or

recommend sentence of death (1) unless it finds one of the aggravating circumstances enumerated in

Subsection (3) and further finds that (2) there are no mitigating circumstances SUFFICIENTLY

SUBSTANTIAL to call for leniency. When the issue is submitted to the jury, the Court shall so instruct

and also shall inform the jury of the nature of the sentence of imprisonment that may be imposed,

including its implication with respect to possible release upon parole, if the jury verdict is against

sentence of death”

This means that for a death penalty verdict we need:

1. At least “one of the aggravating circumstances enumerated in Subsection (3)”;

2. “there are no mitigating circumstances SUFFICIENTLY SUBSTANTIAL to call for

leniency”.

- UNANIMITY RULE: the death verdict has to be unanimous (it is now written in all statues).

- Victim Impact Evidence:

Permissible: For family members to talk about their loss (pecuniary and emotional) and the

o qualities of the victim.

Not Permissible: Opinions as to punishment; opinions of the killer

o SC declined to allow this twice in the past because of the risk that it might take the Death

o Penalty back to the arbitrary phase but now the new SC has allowed it.

Categorical Limits on the Death Penalty

1. The Mens Rea Limit: A Reprise on Felony Murder:

TISON V. ARIZONA (1987): Petitioner brothers, along with other members of their family,

planned and effected the escape of their father (Gary Tison) from prison, where he was

serving a life sentence for having killed a guard during a previous escape. Petitioners entered

the prison with a chest filled with guns, armed their father and another convicted murderer

(Randy Greenawalt), later helped to abduct, detain, and rob a family (Lyons) of four, and

watched their father and the other convict murder the members of that family with shotguns.

Although they both later stated that they were surprised by the shooting, neither petitioner made

any effort to help the victims, but drove away in the victims' car with the rest of the escape

party. After the Arizona Supreme Court affirmed petitioners' individual convictions for

capital murder under that State's felony murder and accomplice liability statutes, petitioners

collaterally attacked their death sentences in state postconviction proceedings, alleging that

Enmund v. Florida, which had been decided in the interim, required reversal (Enmund was the

driver of the “get-away” car).

However, the Arizona Supreme Court determined that they should be executed, holding that

Enmund requires a finding of "INTENT TO KILL," and interpreting that phrase to include

35

situations in which the defendant (1) intended, (2) contemplated, or (3) anticipated that lethal

force would or might be used, or that life would or might be taken in accomplishing the

underlying felony. Despite finding that petitioners did not specifically intend that the victims

die, plan the homicides in advance, or actually fire the shots, the court ruled that the requisite

intent was established by evidence that petitioners played an active part in planning and

executing the breakout and in the events that lead to the murders, and that they did nothing to

interfere with the killings nor to disassociate themselves from the killers afterward. Although

only one of the petitioners testified that he would have been willing to kill, the court found that

both of them could have anticipated the use of lethal force.

Held: Although petitioners neither intended to kill the victims nor inflicted the fatal wounds,

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the record might support a finding that they had the culpable mental state of reckless

indifference to human life. The Eighth Amendment does not prohibit the death penalty (see

Coker v. Georgia) as disproportionate in the case of a defendant whose participation in a felony

that results in murder is major and whose mental state is one of reckless indifference. A survey

of state felony murder laws and judicial decisions after Enmund indicates a SOCIETAL

CONSENSUS that that combination of factors may justify the death penalty even

21

WITHOUT a specific "intent to kill." Reckless disregard for human life also represents a

highly culpable mental state that may support a capital sentencing judgment in combination

with major participation in the felony resulting in death. Because the Arizona Supreme Court

affirmed these death sentences upon a finding that the defendants "intended, contemplated, or

anticipated that lethal force would or might be used, or that life would or might be taken," the

case must be remanded.

Good question: what would the Tison brother have been convicted of in a state that did not

have a felony – murder statute? First-degree murder? Second-degree murder? Manslaughter?

DEATH ELIGIBILITY in felony murder situations in cases where Δ (any one of these, not all

required):

1. Enmund Rule (the Enmund rule, after Tison includes even the element of Tison):

a) Killed or

b) Attempted to Kill or

c) Intended to Kill

- OR -

2. Tison Rule:

a) was a substantial participant in the underlying felony, and

b) manifested a RECKLESS (aware of sub. unjust. risk and disregard) indifference to

the value of human life.

2. Mental retardation and Youth:

 LOCKETT V. OHIO (1978) defendant has the right to offer evidence of any mental

disability. th

 ATKINS V. VIRGINIA (2002) Court ruled that the 8 Amendment places a substantive

restriction on the State’s power to take the life of a mentally retarded offender (Atkins was 59

of IQ).

Court looked to:

o 1. Evolving Standards of Decency (Roper (disavows the ability of any individual under

age from the mental state requisite to necessitate the death penalty) and Atkins),

providing that the basic test for cruel and unusual punishment is the “progress of a

maturing society” and whether a punishment offend “evolving standards of decency”,

as:

a) The position of civic and religious organization;

b) International opinion (Justice Renhquist scathing dissented arguing that the

viewpoint of the other country and organization should not be accorder any weight)

c) The justices own judgment.

2. Goals of Punishment: capital punishment can serve as ad deterrent only when murder

is the result of premeditation and deliberation;

20 Reckless: aware of a substantial, unjustifiable risk and acts anyway, must be aware of the risk and disregard the risk.

21 RECKLESSLY (imprudente): aware of a substantial, unjustifiable risk and acts anyway, must be aware of the risk

and disregard the risk. 36

3. International Standards – controversial.

 ROPER V. SIMMONS (S.C. 2005) held that it is unconstitutional to impose capital

punishment for crimes committed while under the age of 18. The 5-4 decision overruled the

Court's prior ruling upholding such sentences on offenders above or at the age of 16.

3. Victim/Race Discrimination and the Eighth Amendment:

MCCLESKEY V. KEMP: In 1978, petitioner, a black man, was convicted in a Georgia trial court

of armed robbery and murder, arising from the killing of a white police officer during the robbery

of a store. Pursuant to Georgia statutes, the jury at the penalty hearing considered the mitigating and

aggravating circumstances of petitioner's conduct, and recommended the death penalty on the

murder charge. The trial court followed the recommendation, and the Georgia Supreme Court

affirmed. After unsuccessfully seeking postconviction relief in state courts, petitioner sought habeas

corpus relief in Federal District Court. His petition included a claim that the Georgia capital

sentencing process was administered in a racially discriminatory manner in violation of the Eighth

and Fourteenth Amendments. In support of the claim, petitioner proffered a statistical study (the

Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia

based on the murder victim's race and, to a lesser extent, the defendant's race. The study is based on

over 2,000 murder cases that occurred in Georgia during the 1970's, and involves data relating to the

victim's race, the defendant's race, and the various combinations of such persons' races. The study

indicates that black defendants who killed white victims have the greatest likelihood (probability) of

receiving the death penalty. Rejecting petitioner's constitutional claims, the court denied his petition

insofar as it was based on the Baldus study, and the Court of Appeals affirmed the District Court's

decision on this issue. It assumed the validity of the Baldus study, but found the STATISTICS

INSUFFICIENT to demonstrate unconstitutional discrimination in the Fourteenth Amendment

context or to show irrationality, arbitrariness, and capriciousness under Eighth Amendment

analysis.

Held: 1. The Baldus study does not establish that the administration of the Georgia capital

punishment system violates the Equal Protection Clause.

(a) To prevail under that Clause, petitioner must prove that the decisionmakers in his case acted with

discriminatory purpose. Petitioner offered no evidence specific to his own case that would support an

inference that racial considerations played a part in his sentence, and the Baldus study is

insufficient to support an inference that any of the decisionmakers in his case acted with

discriminatory purpose. This Court has accepted statistics as proof of intent to discriminate in the

context of a State's selection of the jury venire, and in the context of statutory violations under Title

VII of the Civil Rights Act of 1964. However, the nature of the capital sentencing decision and the

relationship of the statistics to that decision are fundamentally different from the corresponding

elements in the venire selection or Title VII cases. Petitioner's statistical proffer must be viewed in the

context of his challenge to decisions at the heart of the State's criminal justice system. Because

discretion is essential to the criminal justice process, exceptionally clear proof is required before this

Court will infer that the discretion has been abused.

(b) There is no merit to petitioner's argument that the Baldus study proves that the State has

violated the Equal Protection Clause by adopting the capital punishment statute and allowing it to

remain in force despite its allegedly discriminatory application. For this claim to prevail, petitioner

would have to prove that the Georgia Legislature enacted or maintained the death penalty statute

because of an anticipated racially discriminatory effect. There is no evidence that the legislature

either enacted the statute to further a racially discriminatory purpose or maintained the statute

because of the racially disproportionate impact suggested by the Baldus study.

2. Petitioner's argument that the Baldus study demonstrates that the Georgia capital sentencing system

violates the Eighth Amendment's prohibition of cruel and unusual punishment must be analyzed in the

light of this Court's prior decisions under that Amendment. Decisions since Furman v. Georgia, have

identified a constitutionally permissible range of discretion in imposing the death penalty. First,

there is a required threshold below which the death penalty cannot be imposed, and the State must

establish rational criteria that narrow the decisionmaker's judgment as to whether the circumstances of

a particular defendant's case meet the threshold. Second, States cannot limit the sentencer's

consideration of any relevant circumstance that could cause it to decline to impose the death penalty.

In this respect, the State cannot channel the sentencer's discretion, but must allow it to consider

any relevant information offered by the defendant.

3. The Baldus study does not demonstrate that the Georgia capital sentencing system violates the

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Eighth Amendment.

At most, the Baldus study indicates a discrepancy that appears to correlate with race, but this

discrepancy does not constitute a major systemic defect. Any mode for determining guilt or

punishment has its weaknesses and the potential for misuse. Despite such imperfections,

constitutional guarantees are met when the mode for determining guilt or punishment has been

surrounded with safeguards to make it as fair as possible.

4. Petitioner's claim, taken to its logical conclusion, throws into serious question the principles that

underlie (sottosta) the entire criminal justice system. His claim easily could be extended to apply to

other types of penalties and to claims based on unexplained discrepancies correlating to membership

in other minority groups and even to gender. The Constitution does not require that a State eliminate

any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a

criminal justice system that includes capital punishment. Petitioner's arguments are best presented

to the legislative bodies, not the courts. DEFENSES

JUSTIFICATION AND EXCUSE

In both defenses, the actor concedes that they have committed a criminal act, with the mens rea

required by the definition of the crime. Nevertheless, the actor offers a plausible argument of desert or

utility why they should not suffer punishment.

- Key Issue : Was the belief reasonable?

- JUSTIFICATION – focus on conduct

arises when the defendant has acted in a way that the law does not seek to prevent.

o acts which are encouraged and society exonerates them as “right”

o Ex. Necessity (Breaking and Entering to escape tornado. The tornado presents a more serious

o theret)

- EXCUSE – focus on actor

arises because the defendant is not blameworthy for having acted in a way that would

o otherwise be criminal.

denies a particular actor’s responsibility for conduct that is concededly wrong.

o Ex. DURESS (Breaking and Entering because there’s a gun to your head)

o  not guilty if 3 requirements (of duress) met:

a) threat of imminent bodily harm to self or family;

b) Defendant reasonably believed succumbing to threat was the only way of preventing

from occurring;

c) Defendant not at fault for being in coercive situation

d) Is not a defence of criminal homicide..

A. DEFENSIVE FORCE

- Self-Defense:

(1) Defendant must not be the aggressor;

o (2) Defendant confronted with unlawful force;

o (3) Defendant must be threatened with imminent death or great bodily harm.

o

More than a mere scintilla.

Rule for Self Defense:

−  For self-defense, there must be an actual belief that is based on reasonable grounds

22

that they are in danger of being killed or serious bodily harm .

22 Remenber the definitions:

Assault:

1. Placing someone in (reasonable) fear of imminent bodily harm (. It is a synonym for injury or bodily injury), or

2. Attempted Battery

Battery (più grave):

1. Δ intentionally or recklessly causes either bodily injury (Injury or bodily injury is damage or harm caused to the

structure or function of the body caused by an outside agent or force, which may be physical or chemical.) or an

offensive touching upon the victim

2. Using a deadly weapon.

Types of injury:

1. Bruise is a hemorrhage under the skin caused by contusion.

2. Wound: cuts and grazes are injuries to or through the skin, that cause bleeding (i.e., a laceration).

3. Burns are injuries caused by excess heat, chemical exposure, or sometimes cold (frostbite).

4. Fractures are injuries to bones. 38

a) Perfect Self-Defense – meets all elements (requires full acquittal).

b) Imperfect Self-Defense – belief was unreasonable as to some element (MPC would

charge with Manslaughter).

Retreat Rule – Person may not use deadly force against aggressor if they can avoid the harm

o safely by retreating (Policy – preserve human life).

 Exception – Castle doctrine – If you are in your home or work, you don’t have to retreat

(persons house is his or her castle).

MPC (p. 493) – speaks in terms of subjective belief as opposed to reasonable belief.

o Battered Woman Syndrome (excuse) – Where the battered or abused woman has developed a

o (1) a psychological condition of low self-esteem and (2) a psychological state of “learned

helplessness”. (subjectifies reasonable person standard)

Evidence of this is inadmissible unless from an expert.

o Now admissible in OK (Bechtelo v. State).

o

“where the officer has probable cause to believe that the suspect poses a threat of serious

− physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent

escape by using deadly force.

- Defense of Others – Person who comes to the aid of someone else does not have to have a special

relationship with the victim; however, the person who is being aided must reasonably appear to

have the right to use force themselves.

- Defense of Dwelling – Deadly force may be used to defend a dwelling as long as it reasonably

believes that deadly appears necessary.

To prevent someone from entering who

o  (1) intends to commit a felony.

 (2) enters dwelling with a tumultuous entry

+ Personal danger

o

- Defense of “Other” Property – It is permissible to use non-deadly force to prevent interference

with the property if it is in your possession. You can protect land other than your dwelling if you

are in possession.

General Rule – Deadly Force may not be used to protect property.

o

- Crime prevention – can use deadly force to prevent a dangerous felony that involves risk to

human life

- Arrest – It is reasonable only when the felon threatens death or bodily harm.

Private parties have the same rights as police officers, except the person against whom the

o force is being used must actually be guilty of the felony.

- Resisting Arrest –

Deadly force if ... not known to be police officer and is necessary;

o Non-Deadly force if ... know to be officer.

o

4 uses of defensive forces: 1) Self Defense; 2) Defense of others; 3) Defense of your dwelling; 4)

Defense of non dwelling or property of others.

PEOPLE V. LA VOIE (1964) Self Defense. Relevant Facts: Defendant was employed as a

pharmacist and after leaving one night and driving home, his car was struck by another. The other

car, containing four men who were intoxicated, continued to push the defendant’s car by force.

Defendant fully applied his brakes but he continued forward. After coming to a stop the defendant

exited the vehicle with his pistol inserted into his belt-line. The occupants of the other car began to

make verbal threats and one approached in a menacing manner, the defendant shot him and he

died.

Legal Issue: Whether deadly force may be used when non deadly force has been used against a

person who believes that SBI will follow?

Court’s Holding: Yes

5. Joint dislocation is a displacement of a bone from its normal joint, such as a dislocated shoulder or finger.

6. Concussion is mild traumatic brain injury caused by a blow, without any penetration into the skull or brain.

7. Sprain is an injury which occurs to ligaments caused by a sudden over stretching; a strain injures muscles.

8. Shock is a serious medical condition where the tissues cannot obtain sufficient oxygen and nutrients.

9. Amputation is the removal of a body extremity by trauma or surgery.

10. Munchausen Syndrome is a psychiatric disorder where a person inflicts an injury upon themselves for the purpose of

receiving medical attention.

SERIOUS BODILY INJURY is any injury or injuries to the body that substantially risks death of the victim.

39

Procedure: Trial court dismissed the charges upon motion for directed verdict by defendant.

Affirmed.

Law or Rule: When a person has reasonable grounds for believing that danger of his being killed

or receiving great bodily harm is imminent (this means that if the aggressor is leaving away, the

victim cannot, for instance, fire him), he may act and defend himself to the extent of taking human

life when necessary, even if the appearances were false, or he was mistaken about the real or actual

danger.

Court Rationale: The defendant was a stranger to all four occupants of the car. He was peacably

on his way home. Under the facts and the law, defendant had the right to defend himself against the

threatened assault of those whose lawlessness and utter disregard of his rights resulted in the

justifiable killing of one of their number.

Plaintiff’s Argument: The victims’ did not intend to actually harm the defendant, they were only

drunk and joking.

Defendant’s Argument: Defendant’s belief that serious harm or death would result was

reasonably sufficient to warrant defense with deadly force.

STATE V. LEIDHOLM. Battered wife syndrome case, stabs husband while asleep. During

argument while she was being pushed down she could not lawfully stab him because she was not in

fear of her life. In this case there was a problem with the jury instruction b/c jury was given an

object reasonableness standard where they should have been given a subjective standard of

reasonableness.

Leidholm pled guilty to manslaughter.

PEOPLE V. GOETZ (1986). Bernhard Goetz boarded the train in Manhattan, and sat near the

four men. He was carrying an unlicensed .38 caliber pistol on a waistband holster, which was

loaded with five rounds of ammunition.

Canty approached Goetz and told him to give them five dollars. At this point, Goetz stood up,

unholstered his pistol, and quickly fired four shots. Three of the men were hit, while Cabey was not

struck. Goetz then fired another shot at Cabey, severing his spinal cord.

Goetz fled the scene and on December 31 surrendered himself to the police in New Hampshire. He

gave two lengthy statements to the police. Goetz admitted to carrying an unlicensed pistol in New

York since 1981, which he purchased after he was injured during a mugging. Goetz stated that

when he was approached by the men on December 22, he could tell that they wanted to "play with

me". Although he did not believe any of the men were armed, he stated that he feared that he would

be "maimed". Goetz established a "pattern of fire," firing from left to right. He admitted to shooting

Cabey with his last bullet after the initial barrage.

The case, defended by Barry Slotnick, was presented to a Grand Jury, which returned an indictment

on January 25, 1985, charging Goetz with one count of Criminal Possession of a Weapon in the

Third Degree, and two counts of Criminal Possession of a Weapon in the Fourth Degree. The Grand

Jury dismissed charges of Attempted Murder, Assault, and Reckless Endangerment.

The prosecutor later sought permission from the court to resubmit the case to another Grand Jury

with additional evidence. On March 27, 1985, the second Grand Jury returned an indictment

charging Goetz with four counts of Attempted Murder, four counts of Assault, one count of

Reckless Endangerment, and one count of Criminal Possession of a Weapon in the Third Degree.

This indictment was consolidated with the prior indictment.

On October 14, 1985, Goetz moved to dismiss the second indictment, claiming that the prosecutor's

instructions with respect to the issue of justification were erroneous and prejudicial. While the motion

was pending, a columnist with the New York Daily News interviewed Cabey in the hospital. Cabey

told the columnist that the men had approached Goetz with the intention of robbing him. The

following day, one of the first police officers on the scene informed the prosecutor that Canty had

admitted to him that the men intended to rob Goetz. The prosecutor informed the court and

defendant about this communication. Goetz then expanded his motion to dismiss to include the

claim that Ramseur and Canty, who had testified before the Grand Jury, must have committed perjury.

On January 21, 1986, the Criminal Term court granted the defendant's motion to dismiss with

respect to all counts except for the Reckless Endangerment charge, with leave to represent to a

third Grand Jury. The reasoning by the court was that the prosecutor, when charging the Grand Jury

with respect to the justification defense, incorrectly told the Grand Jury that they must consider with

Goetz's actions were those of a "reasonable man in [Goetz's] situation". The court held that this

charge created an objective test of Goetz's beliefs. The court held that the test for whether the use of

40

deadly force is justified should be ENTIRELY SUBJECTIVE, focused on the defendant's state of

mind at the time of the incident. An additional reason given by the court for dismissal was that it

was extremely likely that the Grand Jury based their decision on perjured testimony, pursuant to the

Daily News article and the subsequent statement by the police officer.

On April 17, 1986, the Appellate Division affirmed the decision of the lower court, prompting the

appeal to the New York Court of Appeals.

Opinion of the Court: Judge Sol Wachtler wrote for a unanimous court. The Court held that to use

an entirely subjective test to determine whether a defendant appropriately used deadly physical force

would be very dangerous, in that it would permit a jury to acquit every defendant who believed that

his actions were reasonable, regardless of how bizarre the rationale. The Court explained that the

justification statute requires an objective element, in that deadly physical force is only permissible

if a (definition of JUSTIFIABLE HOMICIDE:) reasonable person would believe that he is in

imminent fear of serious physical injury or death. This would prevent the slippery slope of a

different reasonable test necessary for every single defendant claiming justification.

With respect to the lower court's alternate theory for dismissal, the perjury issue, the Court held that

there was no basis for the lower court to suspect perjury, and that there was no basis in statute or case

law permitting a dismissal merely because new information comes to light which may lead a

defendant's acquittal.

Therefore, the Court reversed the lower court on both grounds, and reinstated all counts of the

indictment.

Standard for justification: The standard for justification shifted after rulings in the case. Jurors are

now told to CONSIDER A DEFENDANT'S BACKGROUND and to consider whether a

reasonable person would feel imperiled if that reasonable person was the defendant.

TENNESSEE V. GARNER (1985). A Tennessee statute provides that, if, after a police officer has

given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, "the

officer may use all the necessary means to effect the arrest." Acting under the authority of this

statute, a Memphis police officer shot and killed appellee-respondent Garner's son as, after being

told to halt, the son fled over a fence at night in the backyard of a house he was suspected of

burglarizing. The officer used deadly force despite being "reasonably sure" the suspect was

unarmed and thinking that he was 17 or 18 years old, and of slight build. The father subsequently

brought an action in Federal District Court, seeking damages under 42 U.S.C. § 1983 for asserted

violations of his son's constitutional rights. The District Court held that the statute and the officer's

actions were constitutional. The Court of Appeals reversed.

Held: The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force

against, as in this case, an apparently unarmed, nondangerous fleeing suspect; SUCH FORCE

may not be used unless necessary to prevent the escape and the officer has probable cause to

believe that the suspect poses a significant threat of death or serious physical injury to the officer or

others. B. CHOICE OF EVILS: NECESSITY

Definition: Pressure from forces of nature that make defendant reasonably believe that conduct at

issue was necessary (must be imminent) to avoid harm to society which would exceed the harm

caused by the defendant’s conduct.

Common Law Elements (Majority Rule):

o  1. Reasonable belief;

 2. Imminent danger;

 3. Only way to prevent harm = violate law

 3. Δ didn’t create emergency situation

 4. Harm caused = less than harm avoided

MPC version is the Choice of Evils – Δ’s action was chosen as the lesser of the two evils in

o order to avoid harm either to themselves or to others is justified when:

 1. The harm or evil sought to be avoided is greater than that caused by the Δ’s conduct.

 2. Neither the Code nor other law defining the offense provides exceptions or defenses

dealing with specific situation involved, and

 3. A legislative purpose to exclude the justification claimed does not otherwise appear.

THE QUEEN V. DUDLEY & STEPHENS (1884) Δs were lost at sea, with no food or water.

They ended up killing one of the crew members, and ate him to survive. They were picked up and

saved 4 days after this by another vessel. If they hadn't killed the boy, they would not have

41

survived, and the boy was very weak, he would have probably died too.

Holding: This is murder unless it can be justified. Court says that killing out of necessity (self-

defense) of another person to save your own life only is justified when the victim was threatening

the Δs life, not if the victim is innocent. But Court also talks about extreme necessity, and discusses

whether it can be justified. But there is no absolute or unqualified necessity to preserve one's life.

Can't take innocent life to save 3. Rejects the utilitarian view of giving one life to save others.

o More retributive - it's just wrong, you can't murder.

Court ultimately says - we don’t care. From retributivist perspective, just wrong to take an

o innocent life.

Distinction of this case with case of mountaineer cutting rope of the other that lost his grip

o Imminent - harm to Δ / inevitable death of victim

• Choice of victim - if they had pulled straws it would be more sympathetic because

• there was equal risk; all consented

Notes: Lesser Evils / Choice of Evils

o The harm caused by the justified behavior remains a legally recognized harm that is to

• be avoided whenever possible. However, that harm may be outweighed by the need to

avoid an even greater harm or to further a greater societal interest.

Ex.: Raging forest fire is coming towards a town of 10,000 ppl. Δ burns a corn

 field located between forest & town, which serves as a firebreak and saves the

town. This is arson, but he has a complete defense; his action was justified.

MPC § 3.02. Justification Generally: Choice of Evils.

• (1) Conduct that the actor believes to be necessary to avoid harm or evil to

 himself or to another is justifiable, provided that:

(a) the harm or evil sought to be avoided by such conduct is greater than

o that sought to be prevented by the law defining the offense charged; and

(b) neither the Code nor other law defining the offense provides

o exceptions or defenses dealing with the specific situation involved; and

(c) a legislative purpose to exclude the justification claimed does not

o otherwise plainly appear.

(2) when the actor was reckless or negligent in bringing about the situation

 requiring a choice of harms or evils or in appraising the necessity for his

conduct, the justification afforded by this Section is unavailable in a

prosecution for any offense for which recklessness or negligence, as the case

may be, suffices to establish culpability.

Commentary. MPC accepts the view that a principle of necessity, properly

 conceived, afford a general justification for conduct that would otherwise

constitute an offense.

C. MENTAL ILLNESS

This type of defense serves as an excuse by presenting situations in which the Δ may possess the

required mens rea, but nevertheless merits exculpation because of a mental illness.

- Insanity is a term made up by lawyers (Doctors say Illness of the mind or disease).

- Federal Law on Insanity – changed after John Hinckley (who shooted President Reagan) to

eliminate volitional prong of ALI and pretty much go to M’Naghten (Insanity Defense Reform Act

of 1984)

insanity = more than mere mental illness;

o  have to lack capacity;

 insanity is an affirmative defense.

- OK Insanity – 21 O.S. §152(4)

Ganzer Syndrome – Faking insanity;

o Tests:

o 1. M’NAGHTEN TEST (Majority – 75%) – Defect of reason from disease of the mind as

to not know the nature and quality of act or wrongfulness of conduct:

a) Mental disease or defect (cause);

b) Lack substantial capacity (effect) to;

c) Know wrongfulness of conduct OR nature and quality of act

Factor weighed in persons ability to distinguish right from wrong:

o 42

 Deific Decree – situations in which a person commits a criminal act,

knowing it is illegal and morally wrong according to society’s standards

but, because of a mental defect, believes God has decreed the act.

The M'Naghten Rules (1843) (pronounced McNaughton) were the first serious

attempt to codify and rationalize the attitude of the criminal law towards mentally

incompetent defendants. They arise from the attempted assassination of the British

Prime Minister, Robert Peel, in 1843 by Daniel McNaghten. In fact, M'Naghten fired

a pistol at the back of Peel's secretary, Edward Drummond. Drummond would die five

days later. The House of Lords asked a panel of judges, presided over by Sir Nicolas

Conyngham Tindal, Chief Justice of the Common Pleas, to set down guidance for

juries in considering cases where a defendant pleads insanity. The rules so formulated

as M'Naghten's Case, have been a STANDARD TEST FOR CRIMINAL

LIABILITY in relation to mentally disordered defendants in common law jurisdictions

ever since, with some minor adjustments. When the tests set out by the Rules are

satisfied, the accused may be adjudged "not guilty by reason of insanity" and the

sentence may be a mandatory or discretionary (but usually indeterminate) period of

treatment in a secure hospital facility, or otherwise at the discretion of the court

(depending on the country and the offence charged) instead of a punitive disposal.

The insanity defense is recognized in Australia, Canada, England and Wales, New

Zealand, the Republic of Ireland, and most U.S. states with the exception of Montana,

Idaho, and Utah. Not all of these jurisdictions still use the M'Naghten Rules.

M'Naghten Rules: "the jurors ought to be told in all cases that every man is presumed

to be sane, and to possess a sufficient degree of reason to be responsible for his crimes,

until the contrary be proved to their satisfaction; and that to establish a defence on the

ground of insanity, it must be clearly proved that, at the time of the committing of the

act, the party accused was labouring under such a defect of reason, from disease of the

mind, as not to know the nature and quality of the act he was doing; or, if he did know

it, that he did not know he was doing what was wrong"

2. Irresistible Impulse – Mental disease affecting a person in that they know their conduct

is wrong but cannot stop themselves from doing it.

a) Not followed in many jurisdictions.

3. MPC (ALI Rule – produces Codes) – Not criminally responsible if, as a result of a

mental disease or defect, you lack substantial capacity to appreciate the criminality of

your conduct or conform it to the law.

a) Hybrid of M’Naghten and Irresistible Impulse;

b) eliminates nature and quality prong and substitutes it with irresistible impulse.

Timing: Must be mentally ill at the time the crime is committed:

o 1. Incompetent to Stand Trial – If at the time of trial they cannot:

a) adequately assist their lawyer in their defense OR;

b) cannot rationally understand the charges against them, they will be deemed

incompetent to stand trial.

2. Inability of Execution – If at the time of their execution they are found to be insane,

they cannot be executed.

Burden of Proof:

o 1. Initially DEFENDANT has burden of showing that their sanity is brought into question

by showing some evidence (more than a mere scintilla);

2. After showing some evidence, burden shifts to PROSECUTION to prove that beyond a

reasonable doubt, Δ was sane at the time the act was committed.

Proof:

o 1. Expert General Rule: You are only entitled to an expert if you are required to prove

something that isn’t within the juries common understanding

2. Usually Insanity cases will come down to a Battle of Experts. Why?

a) Testimony based on examination more credible than testimony based on hypothesis.

b) Best experts usually testify for both sides or one that usually would testify for one

side but is not in this case.

c) Juries look at: Experts resume and likeability

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Result: If found insane, they are entitled to an acquittal but are nevertheless diverted into an

o institution for the mentally ill.

1. It is possible to be institutionalized longer than the jail sentence would have been.

2. Temporary Insanity – If a person was found to be temporarily insane at the time of the

crime, they are entitled to an acquittal. If they are no longer insane, they are free to go.

DEFINITIONS:

 Psychotics: A mental state caused by psychiatric or organic illness, characterized by a loss of

contact with reality and an inability to think rationally. A psychotic person often behaves

inappropriately and is incapable of normal social functioning;

 Psychopath: a person with a mental disorder characterized by an extreme antisocial personality

that often leads to aggressive behavior, perverted or criminal behavior. ( not eligible for insanity

defense).

PEOPLE V. SERRAVO (1992). Serravo thought that he had gone to heaven and been with God,

and that God had inspired him to establish a multi-million dollar sports complex called "Purely

Professionals" which would enable him to achieve his goal of teaching people the path to

perfection. Some friends supported him, but some inner (intimi) "evil spirits" kept raising some

questions about how he would deal with his unsupporting wife. After coming home one night and

reading the bible, Serravo stabbed his sleeping wife in the back and then told the police that it was

an intruder. Later, his wife found letters written by Serravo indicating that he stabbed her to "sever

the marriage."

Procedural Posture: Serravo was charged with attempted murder, etc. At trial concerning the issue

of his insanity, the trial judge gave an instruction that a person "incapable of distinguishing right

from wrong" includes a person who appreciates that his conduct is legally wrong, but nevertheless

thinks that it is morally right. The jury acquitted, and the prosecution appealed claiming that the

instruction was improper because it was cast in terms of moral wrong rather than legal wrong. The

court of appeals affirmed.

Issue: Whether the phrase "incapable of distinguishing right from wrong" should be measured by

legal wrong or by moral wrong, and if moral wrong, whether that should be a subjective personal

moral standard or an objective societal standard.

Holding: Objective societal standard or moral wrong.

Reasoning: The correct standard is moral wrong because a person who is in an extremely

psychotic state might be aware that an act is illegal, yet be utterly without the capacity to

comprehend that it is immoral. Such a person should not be convicted. Conversely, a mentally ill

person who knows something to be immoral, but does not know that it is illegal, should not escape

conviction simply due to ignorance of the law. This is supported by Cardozo's view in Schmidt,

when he interpreted M'Naughten as referring to the moral right and wrong test. However, the

particular instruction given was cast in so general of terms that a jury could interpret it to mean that

the standard of moral wrong to be applied was a purely subjective personal standard. A correct

instruction would indicate that it is the objective morality of society that is the correct standard.

Also, the concept of "deific decree" used by the court of appeals is not so much an exception to the

right/wrong test as it is another factor in assessing a person's ability to distinguish right from wrong.

A person is not responsible for criminal conduct if a the time of such conduct as a result of mental

disease or defect he lacks the capacity either to appreciate the criminality of his conduct or to conform

his conduct to the requirements of the law.

SMITH V. STATE: also decide under ALI standard this is the case where Smith is an army

private, driving a vehicle and starts shooting other officers in his attempt to get away. Smith’s

conviction is affirmed Court felt that at the time Smith did have the capacity to appreciate the

criminality of his conduct and could conform his conduct according to law b/c of psychiatric

testimony.

Smith was said to have Ganzer syndrome, a syndrome in which one attempts to appear insane or

less sane than one is for the advantages of being thought insane.

Only one ground to win on appeal is the determination that the evidence was insufficient

(extraordinarly rare). Is not winning and if the case is remanded to the trial court in not a violation

of the Double jeopardy Clause.

- Quasi-Insanity Defenses –

1. PTSD ( ) (a.k.a. ( ) Battle Fatigue, Shell Shock) –

post-traumatic stress disorder Also Known As

combat veteran believes they are back in combat when they commit the crime.

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2. Gambling – not accepted as insanity yet.

3. Multiple Personality Disorder – could be insanity depending on diagnosis.

4. Post-Partum Depression – aftermath of childbirth when woman goes into extreme

depression.

5. PMS – accepted in Britain as diminished capacity (charge reduced) and accepted in France as

temporary insanity (Acquittal).

6. Note: Δ will not escape criminal responsibility if Δ voluntarily took drugs or alcohol and

psychosis was triggered because of this.

INCHOATE OFFENSES:

Definition – (precursor crimes) offenses not completed, but are still crimes.

− Inchoate Offenses:

− (1) Attempt;

− (2) Solicitation;

− (3) Conspiracy.

Six Steps in Crime

− (1) conception of idea

− (2) evaluation

− (3) fully form the intent

− (4) preparation

− (5) commence commission

− (6) complete actions

- MERGER Doctrine – This is the concept that upon actual completion of the crime, attempt and

solicitation merge into the completed crime – accused can be charged of both.

1. Can only be convicted of one;

2. Conspiracy does NOT merge into the completed crime;

ATTEMPT

Definition: “an act done for the purpose to commit a crime”, and for some reason the crime is not

committed.

1. Two Elements:

1. INTENT (Mens Rea - state of mind) – specific intent to perform an act and cause a

result, which, if achieved, would constitute a crime.

Attempt to commit negligent or reckless crimes is impossible.

o  You cannot specifically intend to be negligent or reckless

2. OVERT ACT (Actus Reus) – some overt act that goes beyond mere preparation to

commit the crime (only preparation is not attempt).

a) Could be an omission if there is a duty;

b) Tests of Overt Act (Beyond Mere Preparation):

CL Last Step Proximity >> act that's dangerously close to success

o CL Indispensable Element >> anything indispensable that actor doesn't have

o control over (= acquittal)

CL But For Interference >> but for outside factor, crime would be completed

o CL Normal Step >> Defendant crossed some boundary normal person wouldn't

o CL Unequivocality Test >> attempt committed when actor's conduct manifests

o an intent to commit a crime

MPC – Substantial Step >> act or omission which constitutes a substantial step

o in the course of conduct planned to commit a crime:

 This is the modern trend

 At CL, only punishing for the actual harm, but now, trend to is to deter,

and to catch dangerous people before they can cause harm. If they

attempt a crime, very likely they are dangerous, etc.

o

- Policy – We don’t want to reward criminals for plans that don’t come to fruition and attempts

violate public security.

1. Better to stop crime before it happens and it still serves purpose of deterrence and

denunciation. th

- Punishment – Punishment must fit the crime and be proportional (8 Amendment):

1. MPC >> Attempt, generally, treated/punished as fully completed crime:

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1. Except attempted capital murder.

OK Penal Code: :Homicide is murder in the second degree in the following cases:

1. When perpetrated by an act imminently dangerous to another person and evincing a depraved mind,

regardless of human life, although without any premeditated design to effect the death of any particular

individual; or

2. When perpetrated by a person engaged in the commission of any felony other than the unlawful acts set

out in Section 1, subsection B, of this act.

South Dakota Penal Code:

Homicide is murder in the second degree when perpetrated by any act imminently dangerous to others and

evincing a depraved mind, regardless of human life, although without any premeditated (not intentional

killing by statute, only by CL can be intentional) design to effect the death of any particular individual

STATE V. LYERLA (The Mens rea for Attempt) Δ driving on highway, and some girls in a truck

won't let him pass - they were "trying to play games" (at this point we can have only reckless

driving). Δ says they were harassing him to such an extent that he feared for his life, and fired shots

(.357 magnum pistol) to disable their truck. One of the bullets kills a girl (17 years, Jensen). Δ

convicted of second degree murder and 2 counts of attempted second degree murder.

Holding: The jury only found him guilty of second degree murder, so impliedly they believed that

he didn’t have the specific intent to kill them (or else it would have been first degree). To attempt

second degree murder one must have a criminally reckless state of mind. So, attempted reckless

homicide is a logical impossibility - it requires that the Δ intended to perpetrate an unintended

killing. You cannot attempt to be negligent or reckless.

Dissent: the conduct of risking death was intentional even though there was no intent to cause death

Class Notes

Mens rea – recklessness

• In this state, murder 1 was intent to kill; murder 2 was recklessness:

o For the actual death, convicted of murder 2 - so we can assume jury did not find

• the intent, just recklessness

So can he be convicted of attempted murder for the other 2 who didn’t

 die? Not in this state - an attempt ALWAYS requires purpose.

• Logically impossible to have purpose if it was an unintentional

homicide (recklessness)

Even though some forms of murder don’t need intent, attempt ALWAYS

• requires intent.

So no such thing as attempted second degree murder (in this state only)

Purpose is required for attempt (no such thing as an attempted accidental homicide)

Notes: [pp. 666-670]

Attempt and circumstance elements:

• MPC § 5.01. Criminal Attempt

o (1) Definition of Attempt. A person is guilty of an attempt to commit a crime

• if, acting with the kind of culpability otherwise required for commission of the

crime, he:

(a) purposely engages in conduct that would constitute the crime if

 the attendant circumstances were as he believes them to be; or

(b) when causing a particular result is an element of the crime, does

 or omits to do anything with the purpose of causing or with the belief

that it will cause such result, without further conduct on his part; or

(c) purposely does or omits to do anything that, under the circumstances

 as he believes them to be, is an act or omission constituting a

substantial step in a course of conduct planned to culminate in his

commission of the crime.

Subsection (a) addresses the mens rea required with respect to the conduct of

• the actor or the attendant circumstances of the event. Subsection (b)

concerns the mens rea required for the results of the action taken.

Thus, as with the CL, attempt liability would require that the Δ exhibit

 purpose with respect to any conduct elements of the crime and

purpose or possibly knowledge with respect to any result element.

But for the circumstances elements, a lower mens rea would be

 sufficient if recklessness or negligence were otherwise sufficient in the

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statutory definition of the completed crime.

Specific intent & attempt:

• United States v. Morales-Tovar (1999) - Δ was convicted of a felony drug offense,

o served his sentence (scontata la condanna) and was deported to Mexico. Statute

makes it a crime for any deported person to re-enter or attempt to re-enter the U.S.

without express permission of the Attorney General. Δ had lived in the U.S. for 38

yrs, and had a family in the U.S. He missed his family, and went to the border port of

entry and told immigration authorities that he wanted to replace his resident alien card

which was lost - but he didn’t tell them he was deported. When a computer check

revealed this, they arrested Δ. Δ never have a false name nor gave false docs.

Court here says must be a specific intent to attempt a criminal act, and

• acquitted the Δ. Otherwise, the statute would be contradictory. A deportee

can seek permission to apply for re-entry. Without requiring a specific

intent to violate the law, any attempt to follow the legal procedure to do so

would be an illegal "attempt" to re-enter.

However, in United States v. Gracidas-Ulibarry, court says attempt under the same

o statute is a general intent crime.

Court notes that most attempts are and should be specific intent crimes,

• whether or not the crime attempted includes an element of specific intent.

However, most crimes are malum in se (Evil in itself) (CL crimes); this statute

• is a regulatory statute enacted to assist in the control of unlawful immigration

by aliens (mala prohibita = wrong because prohibited).

HIV exposure

o State v. Smith - jail inmate who knew he was HIV+ bit an officer. Convicted

• for attempted murder and aggravated assault - court held there was

sufficient evidence that it's possible to get HIV that way, and Δ knew it.

Smallwood v. State - Δ, aware he was HIV+ virus that could be deadly,

• committed rape. Court held not attempted murder because it required proof

of Δ's specific intent to kill the victim.

Reckless Endangerment:

• MPC recognizes a gap between a (1) purpose-bound attempt law, and the great

o (2) number of crimes that permit conviction on a lesser mens rea.

So MPC has a reckless endangerment provision:

• § 211.2: "A person commits a misdemeanor if he recklessly engages

 in conduct which places or may place another person in danger of

death or serious bodily injury."

This may result in a conviction when attempted murder wouldn’t have worked.

• Also, because the term "reckless endangerment" is less condemnatory than

"attempted murder" a jury may be more likely to convict.

Problem with reckless endangerment approach - it's a misdemeanor, but

• attempt to commit a first degree felony is a 2nd degree felony. There's a big

difference here.

PEOPLE V. MURRAY (The Actus reus for Attempt - Preparation vs. Attempt) Δ is charged with

attempt to contract an incestuous marriage. He elopes with his niece, and requests one of his

witnesses to get magistrate to perform the ceremony.

Holding: Court says although there's definitely an intent, you need more than this to show

attempt. There's a big difference between preparation for the attempt and the attempt itself. The

preparation consists in devising (concepire) or arranging the means or measures necessary for the

commission of the offense; the attempt is the direct movement toward the commission after the

preparations are made. The attempt contemplated by the statute must be manifested by acts which

would end in the consummation of the particular offense, but for the intervention of circumstances

independent of the will of the party.

Notes: The preparation/attempt boundary - generally, the individual who has engaged only in

• "preparatory activity" is not criminally liable, while the individual who has gone "beyond

mere preparation" may be charged with an attempt. So where do we draw the line between

preparation and attempt? The MPC rejected these approaches:

47

The physical proximity doctrine - the overt act required for an attempt must be

o proximate to the completed crime, or directly tending toward the completion of the

crime, or must amount to the commencement of the consummation.

The dangerous proximity doctrine - the greater the gravity and probability of the

o offense, and the nearer the act to the crime, the stronger is the case for calling the act

an attempt

The indispensable element test - a variation of the proximity test which emphasizes

o any indispensable aspect of the criminal endeavor over which the actor has not yet

acquired control

The probable desistance test - the conduct constitutes an attempt if, in the ordinary

o and natural course of events, without interruption from an outside source, it will

result in the crime intended

The abnormal step approach - an attempt is a step toward crime which goes beyond

o the point where the normal citizen would think better of his conduct and desist

The unequivocality test - an attempt is committed when the actor's conduct manifests

o an intent to commit a crime

MPC - in addition to requiring criminal purpose, attempt would require an act that

o was a substantial step in a course of conduct designed to accomplish a criminal

result, and in order to be substantial such an act must strongly corroborate criminal.

MCQUIRTER V. STATE (1953): Defendant, a black man, was convicted of an attempt to commit

an assault with intent to rape. The prosecutrix, a white woman, testified that defendant followed

her home, and that he only went away when she went into the house of a male neighbor. The police

testified that defendant admitted that he wanted to rape the prosecutrix. Defendant denied that he

tried to follow or rape the prosecutrix, that he made any statements to the police, and testified that he

had stopped in town on his way back home and was walking towards the colored section of town

when the prosecutrix thought he was following her.

Rule of Law and Holding: "...To justify a conviction for an attempt to commit an assault with intent

to rape the jury must be satisfied beyond a reasonable doubt that defendant intended to have

sexual intercourse with prosecutrix against her will, by force, or by putting in fear ... In determining

the question of intention the jury may consider social conditions and customs founded uupon racial

differences, such as that the prosecutrix was a white woman and defendant was a Negro man."

PEOPLE V. RIZZO (1927) (The Actus reus for Attempt - Preparation vs. Attempt) Δs planned to

rob this guy who was carrying $1200 in pay roll (libro paga). 2 of the Δs carried firearms. Δs drove

around looking for the guy to rob - they drove by the bank and other places where the guy was

supposed to be. They were being watched and followed by police, and they were arrested before

they could commit the robbery, and before they even found the guy they were supposed to rob

(who wasn’t around).

Holding: The statute says "An act, done with intent to commit a crime, and tending but failing to

effect its commission, is "an attempt to commit that crime." Any act in preparation to commit a

crime may be said to have a tendency towards its accomplishment. However, the court notes that

many acts in the way of preparation are too remote to constitute attempt.

 So, the Court says it must consider those acts only as tending to the commission of the

crime that are so near to its accomplishment that in all reasonable probability the crime

itself would have been committed, but for TIMELY INTERFERENCE (test).

 Court holds that since the Δs had not found or reached the presence of the person they

intended to rob, they are not guilty of attempt.

Class Notes:

Court uses last step test - focus not that rizzo drove around looking for victim, it was mere

1. preparation.

a) Under MPC, this would be sufficient to find him guilty

 A jury should decide whether or not there is a substantial step that is strongly

corroborative. Then gives examples that "shall not be held insufficient as a matter of

law"

We want police to interfere before crime has been committed, so we do need a test like the

2. MPC to get them ahead of time.

Before you even look at attempt, first by looking at substantive definition of the offense - if

3. a theft statute says "concealing property of another with intent to keep it," and someone puts a

48

sweater in their bag, but gets caught at the door, this is not attempt, but theft. On the other

hand, if theft defined as "taking someone else’s property," then this would only be an attempt.

Abandonment:

- Majority Rule – Abandonment will not generally be a defense when there has been intent and an

act beyond mere preparation – No defense when attempt already been committed.

- Minority Rule – You may use abandonment as a defense.

- MPC – It may constitute a defense but only if it is fully voluntary and benevolent and is

complete (renounced criminal purpose).

- Policy reason to allow?

1. Incentive for aware people to change their mind;

2. Deterrence;

3. Kidnapping >> keep from killing/harming victims.

PEOPLE V. STAPLES (1970) [Actus Reus: Abandonment]: Δ rents a room above a bank vault

(sotteraneo), and starts prepping it in order to rob the bank. He went so far as to drill holes in the

floor too. The landlord saw this, and goes to the police. Δ said he had abandoned his attempt to

commit burglary before he was arrested. Δ sais that as time went on, he realized how absurd

becoming a bank robber was, and decided not to do it anymore. It wasn’t clear if Δ abandoned the

crime before or after landlord found the equipment.

Holding: Court holds that there was enough substantial evidence entitling a finding that the Δ's acts

had gone beyond mere preparation. Court says that the DRILLING was clearly an unequivocal

and direct step toward the completion of the burglary. Although it wasn’t clear as to when Δ

abandoned it, it was reasonably inferred by the trial judge that he abandoned it after the landlord

found out - this is the equivalent of interception, and the Δ involuntarily abandoned because he

knew he got caught. Although the court would look at the reason for abandonment - whether it was

voluntary or involuntary - this is not controlling. Court says the relevant factor is the

determination of whether the acts of the perpetrator have reached such a stage of advancement

that they can be classified as an attempt. Once that attempt is found, there can be no exculpatory

abandonment.

Notes [pp. 686-689]

The MPC's Renunciation Rule

• The MPC permits a limited defense of abandonment (unlike Staples). MPC § 5.01(4)

o requires:

"a complete and voluntary renunciation of his criminal purpose….

• Renunciation is not voluntary if it is motivated in whole or in part, by

circumstances, not present or apparent at the inception of the actor's course of

conduct, which increase the probability of detection or apprehension or which

make more difficult the accomplishment of the criminal purpose. Renunciation

is not complete if it is motivated by a decision to postpone the criminal

conduct until a more advantageous time or to transfer the criminal effort to

another but similar objective or victim."

MPC allows the defense of voluntary abandonment, explaining that the individual

o who abandons of his own volition early on in the course of an attempt lacks

dangerousness of character, and also that permitting the defense for this will

encourage would-be criminals to desist from their unlawful plans.

Abandonment Doctrine Today - the defense is applied very stringently, and very few cases

• where Δ has prevailed. Sometimes, courts will not even talk about abandonment, and hold

that Δ never crossed the line from preparation to attempt.

SOLICITATION (istigazione):

Insight, counsel, advise, induce, urge, command someone else another to commit a felony or crime (if

jurisdictions recognize misdemeanors);

- Similar to attempt with re to merger:

1. Actus Reus – Speaking, writing, communicating;

2. Mens Rea – Purpose to urge the person to do the act.

gen, at CL >> approving/agreeing someone should commit IS NOT enough.

- Note: It is possible to attempt to solicit. 49

- Solicitation vs. Conspiracy – Solicitation is dependent only upon the actions and intent of the

solicitor, the response of the solicitee is irrelevant to the crime. If the solicitee does accept the

solicitation, then a conspiracy has been formed.

PEOPLE V. LUBOW [Actus Reus: Solicitation] Δ owed Silverman $30k for diamonds purchased

on credit. When Silverman went to the Δ, and demanded his money, because he was being forced into

bankruptcy, Δ responded by inviting Silverman to participate in a scheme to defraud creditors. They

would basically buy diamonds on credit, then declare bankruptcy. Silverman told the police, and

he had a tape recorder put on him to record later conversations eluding to the same crime.

Holding: Court holds that there was sufficient evidence in the record to find the Δ intended

Silverman to engage in conduct constituting a felony by defrauding creditors.

Notes [pp. 691-694]

MPC § 5.02. Criminal Solicitation:

• (1) Definition of solicitation. A person is guilty of solicitation to commit a crime if

o with the purpose of promoting or facilitating its commission he commands,

encourages, or requests another person to engage in specific conduct that would

constitute such crime or an attempt to commit such crime or that would establish his

complicity in its commission or attempted commission.

(2) Uncommunicated solicitation. It is immaterial under Subsection (1) of this

o Section that the actor fails to communicate with the person he solicits to commit a

crime if his conduct was designed to effect such communication.

(3) Renunciation of criminal purpose. It is an affirmative defense that the actor,

o after soliciting another person to commit a crime, persuaded him not to do so or

otherwise prevented the commission of the crime under circumstances manifesting a

renunciation of his criminal purpose.

Solicitation vs. Attempt:

• For grading - MPC treats solicitation same as attempt.

o MPC § 5.05 (3) - says a Δ can be punished for either solicitation or attempt,

• but not both.

Some states impose a lesser punishment for solicitation that for attempt, so the

o relationship between them becomes important.

People v. Superior Court (2007) - Δ (Decker) wanted to kill his sister (Donna

• Decker) & her friend (Hermine Bafiera), but out of fear that he would be the

prime suspect and would make a mistake, he sought to hire an assassin

(Holston). He gave the assassin a lot of detailed information about his sister,

and agreed on a price. The assassin was actually a police detective, and before

Δ gave him the money, the detective asked Δ if he was sure, and Δ said he was

very sure. Δ argues that he's only guilty of solicitation of murder, not attempt.

Court said that although Δ did not aim the gun, he aimed a professional

• who agreed to commit the murder (in some ways, may be worse,

because professional will def do it, while Δ may not be able to).

Solicitation requires only that a person invite another to

• commit or join in an enumerated crime with the intent that

the crime be committed. Solicitation is complete once request

is made, and is punishable irrespective of the response of the

person solicited.

Here, court said solicitation was complete early on,

• when Δ first asked assassin to kill.

The court asks whether a solicitation to commit murder, combined with

• a completed agreement to hire a professional killer and the making of a

down payment under that agreement, can establish probable cause to

believe Δ attempted to murder the victims. Court says the mere fact of

the down payment ($5,000) ( an initial payment made when buying on

) doesn’t make it more likely of the consummation (although

credit

prosecution points out that it evidences the solicitor's seriousness of

purpose).

People v. Davis (1928) - Δ wants to kill his lover's husband and hires a guy

• to arrange for someone to do it, but he instead goes to the police. Court said

50

not attempted murder because no last step toward killing. Court says Δ was

only a coward, had no criminal record - they can't put in jail every person

that has a criminal impulse.

Uncommunicated Solicitation:

• People v. Saephanh (2001) - Δ was in jail, and sent a letter to a friend asking him to

o attack victim (Cassandra) who was pregnant with Δ's child, in order to end the

pregnancy. An officer intercepted the letter instead, and it was never delivered.

Court held that such uncommunicated solicitations do not constitute the crime of

soliciting another. But the court held that it was attempted solicitation.

Solicitation and Free Speech:

• Brandenburg v. Ohio (1969) - speech calling for violation of law may be punished

o only when it is directed to inciting or producing imminent lawless action and is

likely to incite or produce such action.

Class Notes

MPC § 5.02 (1)

• Attempt using substantial step test - if you solicit - so if guilty of solicitation, then may also be

• guilty of attempt (but see People v. Superior Court, pg 692).

IMPOSSIBILITY

An accused cannot be convicted of an attempt to commit a crime unless he could have been

convicted of the crime itself if his attempt had been successful.

- LEGAL Impossibility – where an act, if completed, would not be a crime.

- FACTUAL Impossibility – where an act, impossible to complete because of some fact unknown

to the Δ.

- Both modernly prohibited;

- Inherent – traditionally a defense:

1. employs method of committing crime the reasonable person believe inherently impossible

2. entirely inappropriate to commit crime:

1. ex: voodoo doll.

BOOTH V. STATE: in this case for the crime of receiving stolen property, the Def. was found guilty

of the lesser crime of attempt to receive stolen property and sentenced of two years in the Oklahoma

State penitentiary and a fine of $150.00.

Burglary a car constitutes a dwelling even though normally it does not. The breaking occurred when

he reached into the car to grab the coat. However booth was acquitted of receivning stolen property

and attempt to receive stolen property b/c the coat had lost its character of being stolen. Case raises

the issue of:

 LEGAL IMPOSSIBILITY (GOOD defence) where the act if completed would not

constitute a crime, examples:

 Accepting goods believing that are stolen goods: no guilty;

 Offering a bribe to a juror, but is not a juror: no guilty;

 Shooting a stuffed deer believing it was alive: no guilty.

 FACTUAL impossibility (NO defence), the accused can be convicted of an attempt.

Examples:

 Picking of an empty pocket: may be found guilty;

 Shooting into the intended victim’s bed but it is empy: may be found guilty;

 Shooting the the intended victim’s head, but the gun is unloaded: may be found guilty.

In the Booth case, the stolen coat had been recovered by the police for the owner and consequently

had, according to the well-established law in this country, lost its character as stolen property.

Therefore, a legal impossibility precluded defendant from being prosecuted for the crime of

Knowingly Receiving Stolen Property.

Common law explanation of the distinction between legal impossibility and factual impossibility,

made “heroically” by the Court:

“Where the act if completed would not be criminal, a situation which is usually described a a

“LEGAL IMPOSSIBILITY”, and where the basic or substantive crime is impossible of completions,

simply because of some physical of factual condition unknown to the defendant, a situation which is

usually described as a “FACTUAL IMPOSSIBILITY”.

B. COMPLICITY

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General - Complicity is not a crime per se, but it is rather a means by which criminal liability is

established through substantive crime.

1. Modern approach : is that a person is legally accountable for the conduct of another when he

is an accomplice of the other person in the commission of the crime (State v. Ochoa);

2. Accomplices – persons held liable for aiding or encouraging the offense of another.

a) Complicity always depends upon some other offense, whether or not another person is

punished for that offense. (conspiracy, attempt, and solicitation can all occur without an

offense) The crime is the substantive offense that was committed.

o

b) The accomplice should manifest the same mens rea as the principal. (MPC requires

purpose)

a) Accomplice must act with

(1) knowledge of the criminal purpose of the perpetrator and with a

o (2) purpose to commit crime or aid in commission of crime.

o

c) Accomplices are generally punished same as P1 except AAF punished less severely.

d) Accomplices can be convicted without the conviction of the principal and the

principal does not have to be alive.

Causation IS NOT a basis for liability

o don't have to cause, just have to aid criminal

o

Types of Accomplices:

• Principle, First Degree:

• actual presence when crime committed;

• actor committing crime with requisite state of mind.

Principle, Second Degree

• actual presence when crime committed (constructive enough)

• person who aids, counsels, commands, encourages the commission of a crime

Accessory Before the Fact

• not present at time crime committed

• person who aids, counsels, commands, encourages commission of crime

Accessory After the Fact

• not present at time crime committed

• person who relieves, receives, comforts and assists another knowing they've

• committed a felony and do so for the purpose of helping them escape, avoid

arrest, trial or conviction

3. Actus Reus – assistance can be in the form of physical or psychological aid which can

include actual assistance or an omission where there is a legal duty to act.

a) Ex. Police officer watching and doing nothing as a crime is committed.

4. Mens Rea – Purpose or knowledge.

a) Simply knowing does not make you a P or A, you must have the actus reus.

b) Misprision of Felony – 18 U.S.C. §4 – Person who knows of a felony committed or being

committed that doesn’t tell an officer is guilty of this.

5. Withdrawal – You can withdraw from complicity:

a) Before the crime is completed and

b) if you provided material aid, you must try and neutralize assistance by getting material or

calling authorities.

c) If you encourage, you must repudiate encouragement and if you gave tools, you must do

all you can to retrieve them.

6. Scope of Liability:

a) Responsible for crimes they commit, counsel, encourage and any other crimes committed

during crimes that are probable / foreseeable

STATE V. OCHOA: Leandro Velarde, Manuel Avitia and Juan Ochoa were convicted of murder in

the second degree. Victim was the sheriff of McKinley county Carmichael, killed at 9.30 a.m.,

April 4 1935. Few days before, Navarro, Campos and Mrs. Lovato had been arrested for breaking

and entering of a certain house, occupied by former employees of a coal mining company.

Riot occurs, someone said “we want Navarro”, un unknown grab the prisoner as if to take him from

the custody of the officers, and deputy Boggess has been struck from a tear gas bomb. Boggess,

blown from someone in the crowd, lost his piston on the pavement (later never recovered) and

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defendant Avitia and Ochoa were seen beating and kicking him.

Sheriff was shot, Velarde and Esquibel, were killed, deputy Wilson was seriously wounded, and

Avitia ran away with the pistol in his hand.

The pistol that lost by deputy Boggess was of the same caliber and make of the pistol that killed

Carmicael and wounded Wilson.

Ten were accused of the murder of Sheriff, seven acquitted, the three defendant appealed.

In New Mexico, every person concerned in the commission, must be prosecuted as principal (even

mere presence and mental approbation, are insufficient). To render one an aider or abettor and, as

consequence, guilty like degree with the principal in the commission of a crime, there should be

evidence of his (STATUS OF MIND) knowledge of the intention or purpose of the principal

commit the assault. There must have been the common purpose. Beating Boggess and preventing

help has been the ACTUS REUS. We have even to consider that without the second degree murder,

we can even have the felony murder for attempt escaping, assaulting.

Velarde had no evidence which sufficiently connects him with the unlawful design. Avitia and Ochoa

are differently situated. Even if it be assumed that these two defendants were without previous

knowledge, the evidence supports the inference that with the firing of the first shot they became

apprised (consci) of that purpose. The intent to kill may be formed at the scene of the crime.

It was unnecessary for the State to show who actually fired the fatal shot, because the defendant

haided and abetted him who did.

If the crime would have occurred after sheriff was shot they would not be liable as P2s b/c they did

not contribute to causation. Approach here is that accomplicies and principles are equally liable.

"Misprision of felony" is still an offense under United States federal law after being codified in 1909

under 18 U.S.C. § 4: “Whoever, having knowledge of the actual commission of a felony cognizable

by a court of the United States, conceals and does not as soon as possible make known the same to

some judge or other person in civil or military authority under the United States, shall be fined under

this title or imprisoned not more than three years, or both”.

This offense, however, requires active concealment of a known felony rather than merely failing to

report it. This is an example of modern view of complicity.

STATE V. TALLY: Judge Tally is accused of assisting his brothers-in-law to kill Ross, a man who

had carnal knowledge of their sister. Judge Tally staked out the telegraph station to make sure no

one tried to send a telegram that might warn Ross of the impending attack. The brothers-in-law had no

knowledge of Tally's help.

Three questions the court addresses:

(a) Did Tally commit an act or forbearance in furtherance of a common design?

(b) If so, must it act actually assist the principals in order for Tally to be convicted?

(c) Did the act actually assist the brothers- in-law?

Tally is not an accessory before the fact because he had no knowledge of the criminal intent prior to

the commission.

The court concluded that Tally was constructively present at the scene of the crime because he

acted as an effective lookout by staking out the telegraph station.

An incredibly trivial assistance is all that is required. The court found that Tally's message to

the telegraph operator on the other end of the link to delay delivery of the warning telegram to

Ross decreased Ross's chances of survival, if only minutely. No but for cause is needed to adjudge

Tally's conduct to be culpable. (Accessory liability circumvents but for cause

problems)

Because of his assisting act, TALLY WAS CONVICTED OF [1ST DEGREE] MURDER.

Suppose the Skeltons attempted to kill Ross but failed:

a) Skeltons: Attempted murder

b) Tally: Attempted murder as an A&A

Suppose the Skeltons desisted before the attempt:

a) Skeltons: Not guilty of anything

b) Tally:

1. At CL, since the principals were not convicted, Tally could not be convicted as an A&A.

(Majority rule: derivative liability);

2. Under the MPC, he is guilty of attempted murder because he has the mens rea and has

committed an overt act aimed at bringing the intended result to pass. Fortuity is rejected

under the MPC. (Minority rule: independent liability).

53

c) Tally himself might have committed attempted murder in his own right based on an

independent analysis of the elements (solicitation, procurement, facilitating, acquiring).

The MPC is structured around culpability. Culpability is what makes the MPC tick.

1. Suppose Western Union's lines went down, and Tally did not incite, encourage, or aid the

principals. Is he guilty as an A&A?

a) CL: No, Tally would not be an A&A. He would be acquitted even if he had the mens

rea.

b) MPC: Yes, he would be guilty as an A&A. He did have the requisite mens rea, and

attempt to aid is sufficient under the MPC to obtain a conviction.

2. Suppose the Skeltons desist before killing Ross.

a) CL: No, Tally would not be an A&A because the principals could not be convicted of

any crime, and A&A is derivative liability.

b) MPC: Yes, Tally would be guilty of attempted murder via A&A.

3. Suppose Tally encourages the Skeltons to pursue Ross and kill him, but everything is

stopped in the preparation stage. No one took any substantial step corroborative of criminal

intent towards completion of the crime.

a) CL: Tally is not guilty of A&A.

b) MPC: Tally is guilty of attempted murder via A&A (See MPC 5.01(3))

Tally was found guilty.

PEOPLE V BEEMAN (1984): Gray and Burk had been telling Beeman about getting ready to rob

Beeman's sister-in-law. Testimonies differ, but somehow Beeman drew floor plans, described cars,

and gave clothes to Gray and Burk, and the latter two robbed the victim and took the goods back to

Beeman, who later claimed to keep them only until he could return them to the victim.

Defendant at issue was found guilty under the theory he aided and abetted the crimes. Three days

prior to the commission Gray stated Defendant and Burke discussed robbing the jewelry of a relative

of the Defendant. Defendant did not want to participate. Some time earlier Defendant had given

floor plans of the victim’s house to Gray, for the purpose of comparing it with the layout of another.

Issue: Whether the instructions to jury adequately informed the jury that the criminal intent

required to convict as an aider and abettor is separate from the actual crimes of robbery, burglary,

etc.?

Holding: No the instructions were not adequate and they were erroneous. Defendant must not only

have 1) knowledge of the perpetrator's intent and 2) the required actions of assistance, he must also

have 3) an intent that those actions will commit, encourage, or facilitate commission of the crime.

CALJIC No. 3.01, which requires only that defendant have knowledge of the perpetrator's intent,

is therefore erroneous. (The intent to share in the fruits of the crime or to actually do the crime should

the perpetrator fail is not needed.) (The liability of the aider and abettor extends to the "natural and

reasonable consequences" of the aided acts.)

Rule: An aider (aiuta) and abetter (favorisce) must act with knowledge of the criminal purpose of

the perpetrator AND with the intent or purpose either of committing or of encouraging or

facilitating commission of the offense.

Ct Rationale: The jury was allowed to convict the Defendant of the same offenses as the perpetrators

without finding that the Defendant had the same criminal intent. Aiding and abetting requires proof of

intent to aid. Proof that the aider and abetter act with knowledge of the criminal purpose of the

perpetrator AND with the intent or purpose either of committing or of encouraging or facilitating

commission of the offense must be provided to support a conviction under the law. The

instruction inadequately defines aiding and abetting b/c it fails to insure that an aider and abettor

will be found to have the required mental state with regard to his own act.

C. CONSPIRACY

- Stand alone, substantive offense (reato autonomo), unlike attempt and solicitation

- Conspiracy doesn’t merge into a complete crime;

- All the co-conspirators are guilty of the same offence;

- CL – An agreement between 2 or more persons to accomplish a criminal purpose or to

accomplish a criminal or an lawful purpose by illegal means (minority).

1. Wharton Rule – no conspiracy unless more parties participate in agreement than are

necessary for the crime: Wharton rule include: dueling, bigamy, adultery, incest, gambling,

givin and receiving a bribes.

- ELEMENTS: (Majority of jurisdictions, OK included):

54

1. Agreement between 2 or more persons to accomplish criminal or unlawful purpose. From

Griffin case, there can be no knowledge among the co-conspirators.

2. Intent to agree these two mens rea

3. Intent to achieve objective;

4. OVERT ACT in furtherance (appoggio) of the conspiracy (majority of jurisdictions):

 can be mere preparation, so no substantial step required.

PINKERTON Rule:

• Co-conspirators can be charged with whatever happens in furtherance of the crime, even if

it is not their doing. (It’s VICARIOUS LIABILITITY and one instrument to the

prosecutor: if you plea guilty, I will drop off the conspiracy charge…)

1. Proof – Must show beyond reasonable doubt that there was a conspiracy and the

Pinkerton offense was done in furtherance of the conspiracy.

2. Limitations:

a) Pinkerton offense must be in furtherance of the conspiracy (underlying crime).

b) Must have a conspiracy conviction or Pinkerton offense thrown out.

c) Foreseeability – Pinkerton crime must be reasonable foreseeable but this usually

weighs in the prosecutions favor.

- Hearsay Doctrine – Forbids the admission of evidence even by a witness on the stand as to what

someone said off the stand when the probative value of that evidence depends on the credibility of

the out of court declarant (person witness is repeating).

1. Conspiracy exception – An out of court statement made by one co-conspirator in

furtherance of the conspiracy may be admissible against another co-conspirator.

- Defense:

1. Impossibility: No defence;

2. Withdrawal:

a) CL: non valid defense;

b) MPC: may be a valid defense.

- Corrupt Motive Doctrine (minority) – says that Δ should have evil motive to be guilty of

conspiracy.

a) Exception to the rule that ignorance of the law is no excuse.

b) Majority is consistent with the doctrine that ignorance of the law is no excuse.

PEOPLE V. LAURIA (1967). Defendant owned a phone answering company and 3 of his clients

were well known prostitutes. The defendant was aware of the prostitutes and knew that they were

using his answering service to take messages from potential customers. Defendant and the

prostitutes were charged with conspiracy to commit prostitution. The trial court set aside the

indictment and People appeal.

Issue: Was the defendant guilty of conspiracy under the given facts?

Holding: No

Rationale: In order to establish criminal liability for a supplier, both the elements of (1) knowledge

of the illegal use of the goods or services and the element of (2) intent to further that use must be

present. Intent to further that use has been established is some cases: e.g. 1 case where hotel owner

charged higher prices to prostitutes, 1 case where there was no legitimate use of the goods and

only possible use was for illegal matters, 1 case where the illegal customers of a business

outnumbered the legal customers. In the current case, no such facts are available. Defendant

treated the 3 prostitutes just like his other customers. Furthermore, prostitution is not a severe

crime (it’s a misdemeanor) that requires Defendant to report it to the police. Therefore,

Defendant can’t be held liable for conspiracy to commit prostitution.

:

Rule NEW RULE! To establish the mens rea necessary to convict a supplier of conspiracy, you

need either direct evidence that he plans to participate in the criminal activity of another or you

need to be able to draw an inference that he has a SPECIAL INTEREST in the activity or show

that the crime is of an aggravated nature.

UNITED STATES V. DIAZ: (1988) Reynaldo Diaz was convicted of conspiracy to distribuite

cocaine, possession and distribution of cocaine and use of a firearm (this is the main point of the

case on the ground of the Pinkerton Rule) in relation to the commission of a drug trafficking crime.

Dea agent purchased cocaine from Carmen Diaz (not relation) and there was no testimony that Diaz

was involved in this sale. Perez, after selling cocaine to a Dea agent, testified that he obtained these

drugs form Mr. Diaz (nevertheless Diaz was still not present). Perez and Rodriguez testified that

55

dropped the money off at Mr. Diaz’s house after the second sale. At the meeting point to sell 1 kg of

cocaine to agent Collins, Mr. Diaz was still not present. Five minutes after Mr. Diaz arrived and

Peirallo had brought the kg of cocaine. Peirallo, impatient, leave the scene, just before the arriving of

agent Collins. Perez Joined agent Collins in her car, counted the money, and only then met with Mr.

Diaz. When Peirallo arrived , Mr. Diaz and Rodriguez moved to Mr. Diaz’ car and Mr. Diaz

opened the hood (cofano) of his car. Mr. Diaz claims that the hood of the car was opened because he

was having a car trouble. Peirallo told Perez that he had a gun which he intended to use if anyone

tried to steal the drugs, took the drugs to agent Collins who gave the arrest signal.

Mr. Diaz was convicted of using and carrying a firearm during and in relation to the commission of

drug trafficking crime and was sentenced to an additional five years in prison, but the government did

not submit evidence at trial that Mr. Diaz was armed, because of their join membership in the

conspiracy, under the Pinkerton rule.

In Pinkerton, the SC held that a party to a continuing conspiracy may be responsible “when the

substantive (FORESEEABLE) offence is committed by one of the conspirators in furtherance of

the conspiracy”, event though he does not participate in the substantive offence or have any

knowledge of it.

The Pinkerton liability rule was pronounced in Pinkerton v. United States, a case in the Supreme

Court of the United States. Walter and Daniel Pinkerton were brothers who were charged with

violations of the Internal Revenue Code. The indictment alleged the Pinkertons committed one

conspiracy count and the ten substantive counts. A jury found each of them guilty of the conspiracy

and several of the substantive counts. The main issue arose from the facts that there was no evidence

to show Daniel Pinkerton participated directly in the commission of the substantive offenses although

there was evidence showing these substantive offenses were in fact committed by Walter Pinkerton in

furtherance of the unlawful agreement or conspiracy existing between the brothers.

Three kinds of Vicarious Liability:

1. Pinkerton Rule;

2. Aiding and abetting;

3. Felony Murder. THEFT OFFENSES

Umbrella term where someone improperly deprived another of property:

1. Not all theft is prosecuted;

2. De minimis requirement – property must be worth some minimum amount:

a) Ex. stealing professors pen.

3. Prosecutorial and Judicial Discretion - operate as the primary means of dispensing with

trivial violations without prosecution.

Commonwealth v. Mitchneck (1938): The appellant was convicted of the offence of fraudulently

st nd

converting money (Elements - 1 : take control or possession, 2 : cash or property; 3st converting:

using property, changing and using from own purpose) of another person to his own use. Mitchneck

operated a coal mine in Beaver township, Columbia county. His workers dealt at the store of A.

Vagnoni and signed orders directing their employer to deduct from their wages (stipendio) the

amounts of their respective store bills and pay the same to Vagnoni, but he failed and neglected to

do so (an aggregate of 259.26$).

There is no sufficient evidence su support a conviction under the Fraudulent Conversion Act of

1917. Mitchneck had not received, nor did he have in his possession, any money belonging to his

employees. His deduction from their wages of the amounts of the store bills which they had assigned

to Vagnoni did not change the title and ownership of the money thus withheld, nor did his

agreement to pay to Vagnoni the amounts thus deducted constitute the latter the owner of the

money. A novation ( ) has been effected. The defendant

Novation is a substitution of a new for an old debt.

has been discharged of his liability to his employees by contracting a new obligation in favor of

Vagnoni. The failure to pay the amount due the new creditor was not fraudulent conversion within the

Act of 1917. Defendant’s liability was civil, not criminal.

Carrier's Case (1473) was a landmark English court case in property crime law decided in the

Star Chamber (also called Anonymous v. The Sheriff of London). The English court adopted the

"breaking bulk" doctrine. If someone transporting merchandise on behalf of someone else (being a

bailee) and keeps the property by breaking it open and misappropriating the contents, it

constitutes a crime of larceny.

A "carrier" was hired by a Flemish merchant to transport bales of wool to the port in Southampton.

56

He opened the bales and took the goods for himself. Some of it came into possession of the Sheriff of

London. The sheriff gave it to the King (forfeited as "waif" (oggetto smarrito), a word to signify

runaways or stolen goods). The merchant sued the sheriff to return the goods. He argued that the

goods were not stolen, that the carrier only had temporary property rights and so the goods could

not be given to the King. The Sheriff argued that the goods were stolen, that it was a felony and

therefore properly forfeited to the King as waif.

The legal relationship between the carrier and the merchant, as now, would have been seen as one of

bailee and bailor, so bailee's have a duty of reasonable care for others' property in their possession.

The merchant had royal safe conduct covering his goods. This meant that if the goods were stolen

they would not be given to the Crown by the use of a waif. This happened in medieval times when a

good was stolen. When the stolen goods were found, they became property of the King.

The judges all agreed that the actions of the carrier constituted larceny but they could not agree on a

rationale. The prevailing reason was provided by Lord Chokke who concluded that the carrier had

lawful possession of the bales only. The merchant retained constructive possession of the contents.

Therefore, when the carrier broke open the bales and removed the contents, he committed the

crime of larceny because he had taken the contents from the possession of the merchant. The

merchant had a royal safe conduct covering his goods. The merchant argued that this protection

meant that even if his goods were stolen, as the court had determined, they would not be forfeited

to the King as waif. The court agreed with the merchant on this second point and the Sheriff was

required to return the goods to the merchant.

Despite the fact that the carrier had temporary possession of the goods with permission of the

merchant, he had 'broken bulk', i.e., he had broken up the bails and then sold them. The fact that he

broke bulk shows the intention to commit felony. He was therefore guilty and hence the goods were

forfeited to the king. However, due to the royal safe conduct that the merchant had, he got his

goods back anyway.

The King V Pear (1779) Defendant hired a horse to go to Sutton and back. Defendant stated that he

lived on King street, no 25 and he would return around 8 pm. That night. He did not return and he

sold the horse that very day. Defendant also did not live at the address he claimed.

Issue: Whether the delivery of the horse to the defendant changed the possession of the property,

and rendered it a conversion as a breach of trust or larceny?

Holding: Larceny

Procedure: Jury found guilty larceny. Affirmed.

Rule: If by fraud a person induced another to part with the possession of goods and converted them

for his own use is larceny.

Ct. Rationale: By misstating (falsando) his address, time of return, constituted fraud, and with the

sale of the horse displayed intent to deprive the owner of his goods equaled larceny.

PL A: The use of fraud to obtain possession over the property with the intent to deprive is larceny.

Def A: Owner granted possession of the property to the defendant for his use.

FRAUD

To obtain stuff from another person by false pretences is theft by false pretences. A “false pretence” is

a false representation (written, oral, or misleading conduct) of an existing fact. At common law,

making false promises about future events is not false pretences.

PEOPLE V. SATTLEKAU

Pretends to be a hotel owner (Uncle Sam hotel, Millville) seeking marriage. He cons (truffa) the

woman out of a $1000. He was convicted of FALSE PRETENCES for his representations about

owning a hotel. He could not be convicted based on his promises to marry her. There was no Uncle

Sam Hotel in Millville. The deliberate intention to defraud, the falsity of the pretenses made, and the

reliance by the complaining witness thereon were fully established.

MPC expressly immunized puffin, if the statement would not deceive an ordinary listener.

 Is issue that defendant didn't make misrepresentations, or is there some other element that's

missing?

 Not only need to make misrepresentation of present fact, but needs to be of material fact,

and victim needs to act on reliance on fact. Defendant claims victim did not rely on

misrepresentation.

 What if post-dated check were given for COD payment? Is this fraud/misrepresentation of

material fact, relied on in case of delivery?

 Concern that jury will interpret post-dated check as a promise rather than a

57

misrepresentation of material fact. Model Penal Code § 223.3 says that deception will not

be found on basis that defendant did not follow through on promise alone.

LARCENY

Taking (caption) and carrying away (asportation) of tangible personal property (the requirement that

personal property be tangible excludes debt, trade secrets, patents, promissory notes etc.) of another by

trespass (no consent or authority, An unlawful act committed with violence) with the intent to

permanently deprive them of that property.

1. Asportation:

a) require some movement, however slight;

b) larceny satisfied when this – doesn't have to be successful.

2. Actus Reus: Taking and carrying away;

3. Attempted Larceny: may be charged where the defendant has not done enough to complete

the crime;

4. Mere preparation: does not constitute attempt;

5. Robbery: is assault for the purpose of larceny;

6. Burglary: is the slightest intrusion into a building for the purpose of larceny;

7. By trespass and Without Consent: owner’s possession must have been disturbed without his

consent;

8. Custody v. Possession: at common law, servants only had custody. Masters retained

possession;

9. At CL, jointly owned property NOT larceny when one owners takes it;

10. LARCENY BY TRICK – Δ somehow persuades person to consent to Δ’s taking by

misrepresentation (inducing consent by misrepresentation):

a) Possession obtained.

11. FALSE PRETENSES – Obtaining title to property of another by purposeful or knowing

false statement of fact with intent to defraud another:

a) Obtaining title;

b) To the property of another;

c) By an intentional (or knowing) false statement of past or existing fact;

d) With intent to defraud the other.

12. Fraudulent Conversion – Δ received into his possession the money or property of another

person, firm or corp. and fraudulently withholds, converts or applies the same to or for his own

use and benefit or to the use and benefit of any person other than the one to whom the money

or property belonged.

13. Lost or Abandoned property: different rules apply:

a) Lost property:

 The finder knows or has reason to believe he can find out the identity of the

owner and

 The finder must. At the moment the taker possession of the lost property, have

the intent necessary for larceny.

b) Abandoned property: has been discarded by the owner with the intent of giving up all

rights to it. Thus, it ca not be the subject of larceny;

14. Unknowing and innocent larceny: is a legal impossibility;

15. Mens Rea inquiries:

a) Purpose to appropriate?

b) Claim of right?

c) Permanence of intended deprivation?

16. Time frame of intent: Must have the requisite intent at the time of the taking;

17. Intent to borrow: generally insufficient for larceny as long as the defendant intended to return

the property within a reasonable time.

18. Unreasonable Borrowing: example given in the casebook is where someone borrow a

harvesting device intending to return it after the harvest season. Interference is substantial;

economic value of device is lost. Larceny results;

19. Dist Criminal Borrowing: larceny occurs if the taker has only a conditional intent o return the

property. For example: “I’ll return the property only if the owner pays a reward”.

58

20. Joyriding Status: may status make it a crime to borrow a motor vehicle, even if the borrower

intend to return int. Rational: joyriding creates a high risk of damage to the property and injury

or death. EMBEZZLEMENT

(Appropriazione indebita): Generally, misappropriation of the property of another when that property

is already in the possession of the embezzler.

1. Elements of Embezzlement:

a) The fraudulent;

b) Conversion;

c) Of property;

d) Of another;

e) By a person in lawful possession of that property.

2. Misappropriation - Actus Reus (using property of another for own purposes inconsistent

with owners purpose)

3. Property of another:

a) Personal property;

b) Real property;

c) Negotiable instruments

d) Securities;

e) Tangible physical goods.

4. Intention and Motives: unauthorized "borrowing" may be embezzlement. No express

requirement that the defendant intends to permanently deprive the owner;

5. False Pretenses and Fraud: dist larceny and embezzlement: those involve takings and

appropriations without the consent of the owner. False pretenses and fraud involve consent

which was improperly obtained;

6. False Representation: the original false pretense statutes required obtaining money or

property by means of a knowingly false and fraudulent misrepresentation of fact;

7. Misleading Omissions: were originally not actionable. Silence held to not be a

misrepresentation, even where it is obvious that the other party labors under a

misunderstanding;

8. Modem Trend: affirmative disclosure may be considered a duty enforced by penal law. See

Blue Sky Laws, Securities Act of 1933;

9. Opinions and Promises: opinions were generally not punished absent clear proof that the

seller did not hold that opinion. Penalizing false promises, on the other hand, was viewed as

perilously close to using the criminal law to enforce debts and contracts;

10. Materiality of Misrepresentation: "by means of' misrepresentation requires a causal relation

between the swindler's deception and the victim's loss;

11. Receiving Stolen Goods: fences, or professional receivers of stolen property, are punished

where the proof shows that they know they are dealing with property that does not belong to

the person who brings it to them;

12. Grading of Theft Offenses: one possible way is to grade the offense according to the value of

the object stolen:

13. No requirement for intent to permanently deprive;

14. Possible to embezzle personal property, real property, negotiable instruments, other tangible

goods. ROBBERY

Assault plus larceny: Taking of personal property of another from the other’s person or presence by

force or intimidation with the intent to permanently deprive him of it.

See the case Lear v. State.

1. Common Law: required that the harmful or threatening behavior occur during the actual

taking; also that the taking be successfully completed.

2. MPC Dist: force or intimidation may occur during an attempted theft or during flight from

a completed or attempted crime.

3. Failure to Take Property: under the MPC, a person may commit robbery even ifhe fails to

take the property of the victim.

4. Imminence Requirement: most state statutes require that the force or intimidation be

immediate or imminent with respect to the completed or attempted larceny.

59

5. Threats of Future Harm: more appropriately charged as extortion.

6. Fear or Harm: either is sufficient for robbery. Threat of harm must be such as to arouse

in a victim a reasonable fear of harm or induce a reasonable person to part with his

property. BURGLARY

CL – breaking and entering of a dwelling of another at night with intent to commit a felony therein

(dentro).

Modern – breaking and entering of an occupied structure (business or dwelling) with intent to commit

a felony therein.

a) Breaking – “breaking the close” – invisible barrier of a premises you cannot be in.

b) Entering – going in after breaking the close.

MPC – no longer requires it to be a dwelling and it doesn’t have to be a felony (just crime).

a) Breaking and entering must exist at the same time as the intent to commit the felony

therein.

b) The target offense (felony) must be different than the breaking and entering offense

c) Abandoned structure – affirmative defense to Burglary (still trespass).

EXTORTION

Definition: (1) obtaining property (2) from another (3) by means of oral or written threats.

1. Modern = more like “blackmail”

a) Ex. Ransom for kidnapping; Money to keep from telling of adultery; etc.

b) Threats

a) No requirement that the threats be illegal (or immediate or physical harm).

b) Threats do not have to be express or illegal.

c) Threats could be of economic harm and threats to reveal secrets might be sufficient.

c) Different from Robbery because the property does not need to be on the person or in

immediate vicinity and it does not require threat of immediate harm (could be threat

of future harm).

a) Robbery = imminent harm; and Extortion = future harm.

2. Differing Treatment: some state statutes provide that extortion is completed when the threats

are made with the intent to obtain money or something of value. Under other state statutes, the

money or property must actually be obtained by means of the threats.

3. Nature of Threats Required: the threats required for extortion need not be to do immediate

harm nor to do physical harm.

4. Difference Extortion v. Robbery: threats for robbery generally must be to do immediate

harm;

5. Location of Property: it is not generally necessary that the property extorted be obtained from

the victim's presence or person;

6. Dist Robbery: property usually must be on the victim's person or taken from the victim's

presence.

People v. Dioguardi (1960): Defendant was convicted of extortion and conspiracy to commit

extortion. In addition to the conspiracy count, the indictment charge defendants with extorting

$4,700 from the officers of two corporations.

The appearance of the picket line, which truck drivers from two companies refused to cross,

alarmed Kerin officers because of the extremely competitive business, the cessation of incoming

or outgoing truck deliveries for as short a period as two weeks would effectively force them out of

business.

Their attorney, filed a petition with the NLRB for a stop picketing and a halt to the “ridiculous”

situation of two teamster locals competing with each other. During a meeting, McNamara suggested

privately to Coogan “that something might be done, but that it would be expensive…”. Coogan

vetoed and McNamara made several phone calls. Then, McNamara, at the presence and the help of a

“bogus” attorney, said “this looks to me to be the kind of a situation which Equitable can help

you.” After the meeting, Coogan reported to the Kerin officers that with a payment of $10,000 to

McNamara the whole matter could be settled immediately, but Kerin “furiously” rejected this

proposal. McNamara made another proposal to Kerin, but even this went rejected because of $3,500

of extraordinary charge that sounded like a hold-up. McNamara answered that without payment they

cannot stop the picketing. Part of the deal was paying $200 per month and Kerin did it until July,

1956, when they were instructed by the District Attorney’s office to discontinue the payments, after a

60

total of $4,700 had been paid to Equitable, which was the amount defendants were charged in the

indictment with extorting. The jury could properly infer that the substance of McNamara proposal

was: “ you have got to pay Equitable $3,500 and $200 a month to have the picket removed and labor

peace guaranteed”, McNamara have not only “the pretense of control” but clear evidence of “actual

control”. The orders appealed from should be reversed, the indictments reinstated, and a new trial

ordered. SODOMY

Common Law Sodomy Crimes:

1. Cunnalingus – oral stimulation of female sex organ.

2. Fellatio – oral stimulation of the male sex organ.

3. Buggery – Anal intercourse by a man of a man or a woman.

a) Pederasty – Buggery of little boys (age varies from jurisdiction to jurisdiction).

4. Bestiality – Carnal copulation of an animal by a human (intercourse with animal).

21 O.S. §888 – Sodomy in OK statute – very vague.

61

RAPE

CL definition: Unlawful carnal knowledge of a woman by a man, not her husband, without her

effective consent.

1. Absolute Defense – married to victim; woman and victim = man

2. Actus Reus – penetration of the male sex organ in female sex organ.

3. Lord Hale Instruction – Husband cannot be guilty of a rape of wife because marriage is

perpetual consent to have sex with husband whenever he wants.

a) Irrevocable implied consent (Rape requires 2 people and marital unity is 1).

23

MODERN definition: Sexual intercourse achieved through force or threat of force which is either

against the will of the victim or without effective consent.

1. Issue most litigated = CONSENT;

2. LACK OF CONSENT is all that is needed rather than a showing of some degree of

resistance:

a) Verbal resistance is adequate (No means no);

b) Consent can be ineffective consent (consent in face of threat of force):

a) People may be incapable of consent (drugged up, unconscious, mentally ill);

b) Consent obtained by Fraud – fraud as to whether the act is sex (medical procedure):

Fraud as to whether Δ is husband of victim (guy goes in at night).

o

c) You can withdraw consent up to the point of penetration;

d) Withdrawal of consent after penetration might lead to a sexual assault.

3. Men can be raped (by men and women);

4. Husbands can rape wives and women can be charged with rape;

5. No longer punishable by death (Coker v. Georgia).

- Oklahoma Statute 21 O.S. § 1111:

1. In 1993, Oklahoma took out part of statute that said a man couldn’t rape his wife.

- Statistics of Rape:

1. 500,000 rapes a year; 100,000 complaints of rape a year

2. 35,000 arrests: 99% were male that were arrested;

3. 1/1400 women forcibly raped;

4. 1/5 of actual rapes are reported;

5. 65% tried get acquittal;

6. 15% a year increase in prison population of rapists or sexual assaulters.

- Rape by Instrumentation:

1. Unconsented to penetration of female sex organ by anything other than the male sex organ

(finger, flute, etc.).

- Progression of Rape:

1. Utmost Resistance (Brown v. State);

2. Reasonable / Earnest (seria) Resistance (People v. Dorsey);

3. ...certain type resistance not required:

a) Frozen Fright – response that can resemble cooperative behavior but is not consent:

 Women react differently to rapes and these dissociate themselves with the situation

but it is still not consent;

 Key to FF – fear must be reasonable.

b) Passive Resistance >> suggests lack of consent when looking at the facts;

c) Controlled Resistance >> may cause jurors to think victim did consent.

- Rape Shield Laws – limit use of victim's sexual history in prosecution.

BROWN V. STATE (1906): (UTMOST RESISTANCE) the Wisconsin Supreme Court reversed a

rape conviction on the grounds that the woman had not resisted enough, although she both

struggled and screamed. The court’s reasoning was that “there must be the most vehement

exercise of every physical means or faculty within the woman’s power to resist the penetration of

her person, and this must be shown to persist until the offense is consummated”.

PEOPLE V. DORSEY (1980): (REASONABLE OR EARNEST RESISTANCE) Facts:

 Victim is on elevator with 15 year old defendant male, much heavier and larger than she, he

23 Sexual intercourse is a legal term for 'any act of sexual gratification involving the sex organs of one person and the

mouth or anus of another, anus to mouth or involving invasion of the anus or vagina of one person by a foreign object

manipulated by another person


PAGINE

68

PESO

1.10 MB

AUTORE

luca d.

PUBBLICATO

+1 anno fa


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
A.A.: 2009-2010

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher luca d. di informazioni apprese con la frequenza delle lezioni di Inglese giuridico e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università La Sapienza - Uniroma1 o del prof Scienze giuridiche Prof.

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