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Criminal Law
Charleston School of Law
Phillips, Kimberly D.


Criminal Law

Fall 2013

1. The requirement of a voluntary act

a. Acus Reus + Mens Rea = Crime

b. Bad thoughts

c. Criminal act

i. Act or omission

ii. Voluntary

iii. Must be act or omission that the definition of the crime requires

d. Voluntary Act

i. Model Penal Code § 2.01

1. Does not punish “involuntary movements”

2. Defines involuntary acts as

a. Reflex of convulsion

b. Bodily movement during unconsciousness or sleep

c. Conduct during hypnosis or resulting from hypnotic suggestion

d. Catch all – bodily movement that is not a product of effort of the actor

e. Omissions

i. Ommission: Legal Duty to act > imposed by law

1. Statue of C/L imposes a duty to care for another;

a. On stands in a certain status relationship to another;

b. One has assumed a contractual duty (express or implied) to care for another; and/or

c. One has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.

ii. Definition

1. Omission to act where there is a duty to act

2. Omission pertains to the voluntary act requirement necessary to impose criminal liability.

3. MPC § 2.01

a. Omission as a basis for liability

i. Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:

1. The omission is expressly made sufficient by the law defining the offense; or

2. The duty to perform the omitted act is otherwise imposed by law.

2. Causation

a. Link between the D’s act and the harmful result

i. Cause in fact – actual cause

ii. Legal (Proximate) Cause

b. Causation In Fact Test

i. But, for or substantial factor test

1. But for D’s voluntary conduct, would the social harm have occurred when it did?

a. If the answer is no, D is the actual cause of the result

2. Or was the D a substantial factor in causing the prohibited harm

ii. Actual cause (cause in fact) serves only to eliminate candidates for responsibility

iii. Cause in Fact Example

1. D shoots V, but only grazes him, leaving V with a flesh wound. X, who has always wanted to kill V, finds and shoots V in the heart, killing him instantly.

c. Legal Proximate Cause

i. Legal cause is a policy question

1. Is the connection between the act and the resulting harm so stretched that it is unfair to hold the D liable for the harm?

2. MPC: D’s act will be the legal cause of the harmful result if the result is “not too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of his offense.” § 2.03(2)(b)

ii. Formula:

1. D’s act > V’s response > +- intervening act > D’s criminal liability for result

a. Is the V’s response an interving act, or the result to remote or accidental?

b. Whether the V’s response or the intervening party’s acts are reasonably foreseeable; responses and intervening acts that are too remote or accidental are not reasonably foreseeable.

iii. Look for V’s response and or intervening act

1. V’s response to D’s act and whether D is responsible for the harm resulting from V’s response to D’s actions.

2. Does the V’s response and/or intervening act break the chain of causation?

iv. Unintended Victim

1. Situations where the type of harm intended occurred, and occurred in roughly the same manner intended, but the victim was not the intended one.

v. Unintended Manner

1. Cases where the general type of harm intended did occur and occurred to the intended victim, but occurred in an unintended manner (look at the V’s response and/or “intervening factors” – factors that intrude between the D’s act and the death of the V).

2. Pre-existing weakness

a. D beats V up, with the intent to kill him. V runs away before many blows have fallen, and a person in ordinary health would not have been severely hurt by D’s blows. However, unbeknownst to D, V is a hemophiliac and bleeds to death from one slight wound. D is guilty of murder.

3. Medical Treatement

a. Medical treatment performed in a negligent manner is usually considered foreseeable; D is liable for V’s death that results from negligent medical treatment.

b. Medical treatment performed in a reckless or grossly negligent manner, may be a superseding intervening act [too remote or accidental].

d. Intervening Act

i. An independent force that operates in producing social harm, but only comes into play after the D has committed his voluntary act or omission

1. Wrongdoing by third party

2. V’s own negligence or suicidal act

3. Act of god

ii. Legal issue

1. When is the intervening act of a third party, the V, or an act of God sufficiently too remote and accidental or so highly abnormal or bizarre that it no longer seems fair to say that the social harm was caused by the D’s conduct?

e. Unintended Victim

i. Tranferred intent

1. D, intending to kill X, shoots at X. Because of D’s bad aim, D hits and kills V instead. D is guilty of the murder of V, because his intent is said to transfer from X to V.

ii. Mistaken ID

1. D shoots a V, mistakenly thinking that V is really X, D’s enemy. D is guilty of murder if V dies; murder requires and intent to kill but not a correct belief as to the V’s identity.

f. Multiple Legal Causes

i. A bad result may have multiple legal causes

ii. The presence of other contributing causes may help the jury determine that the D’s act is too far removed to be the legal cause

1. It would not be fair to find that D’s act was the legal cause because the act was too far remote to have a bearing on the D’s criminal liability

g. Year-and-a-day rule

i. Common law rule in homicide

ii. Refers to legal cause

iii. D cannot be convicted if the victim does not

C/L the accomplice could not be convicted on accomplice liability unless the prosecution showed that the person being aided or encouraged – the principle – was in fact guilty of the underlying crime.

1. A and P agree that P will break into a particular home at night to steal a computer in the home. A will drive P to the home and will serve as P’s lookout. P gets out of the car and goes around to the back of the house to break in the back sliding glass door. P has second thoughts and never breaks into the house. Is A guilty of burglary based on accomplice liability?

ii. Modern: a few courts have ruled that an accomplice can be held liable even if the principal has been previously acquitted.

iii. C/L, Rule for the Exam: If the principle is acquitted, most jurisdictions require that the accomplice be acquitted as well.

iv. Remember:

1. An accomplice might be guilty of attempt.

2. The principal’s trial/conviction is not necessary; the accomplice may be tried and convicted even if the principal has not been tried.

j. Withdrawal of the Accoplice

i. Withdrawal is generally a defense to accomplice liability.

ii. One who has aided or encouraged prior to a crime may withdraw and avoid accomplice liability.

iii. The effect of D’s aid must be undone.

1. D’s subjective change of heart is not enough. D must, at the very least make it clear to the other party that he is repudiating his past aid or encouragement.

iv. Verbal withdrawal is not always enough.

1. If D’s assistance has merely been verbal, he may be able to withdraw merely by stating to the P that he now withdraws and disapproves of the project.

2. If D’s assistance has been more tangible, he probably has to take an affirmative action to undo his effects (aid).

v. A’s warning to authorities can qualify as a withdrawal if done prior to the commission of the crime.

vi. It is not necessary that A actually thwart the crime.

k. Post-Crime Assistance: Accessory After the Fact

i. One who knowingly gives assistance to a felon, for the purpose of helping him avoid apprehension following his crime, is an accessory after the fact

ii. An accessory after fact is not liable for the felony itself

iii. An accessory after the fact has committed a distint crime based upon obstruction of justice, and his punishment does not depend n the punishment for the underlying felony