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CRIMINAL LAW OUTLINE
Professor Garlock
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THEORIES OF PUNISHMENT
Seek to Answer Three Main Questions:
- What is the general justifying aim of punishment? a. Why, ever, may the state punish offenders?
- How should punishment be distributed? a. Who may be punished? What are the conditions of punishment in particular cases?
- How severely may the offender be punished in the particular case?
Utilitarianism:
The moral worth of actions should be determined by whether they promote social utility or happiness. Punishment can only be justified if the pain inflicted on the criminal is outweighed by the greater pain of law violation that it may prevent in the future. (future-oriented) Deterrence is the principal utilitarian justification of punishment. o Specific (“individual”) deterrence : The imposition of punishment on one who has already offended will prevent the offender from doing so again, out of fear of further punishment. o General deterrence: The actual use or threatened use of punishment will deter those who are presently law-abiding, but who may be tempted to commit crime, because of the fear of punishment. Punishment can promote “norm reinforcement,” the process by which people come to understand that certain conduct is wrong. Punishment can help people “internalize” society’s norms, and thus can have a “moralizing” or “educational” effect. Indeed, the criminal law has a role to play in actually creating social norms, as long as it is seen to punish “only that which deserves moral condemnation.” o The deterrent effect may depend on the interaction of two variables, (1) the probability of arrest and conviction and (2) the severity of punishment. Social scientists tend to think the former is the more critical variable. o Most ethicists do not believe “vengeance” is a retributivist position at all. Rather, if the purpose of state-inflicted punishment is to satisfy and deflect private anger at offenders and thus prevent people from seeking private vengeance, it is being imposed in order to prevent violence in the future and is basically a utilitarian, deterrence argument. Degree of punishment: Only that amount necessary to outweigh the benefits of the crime, i.e., its marginal utility. (concurrence in U.S. v. Jackson )
Retributivism:
Punishment is justified because people DESERVE it o There is a moral balance and they put that balance out of whack, so they have to receive the punishment to bring the balance back
Focus on past actions (backward oriented) and moral blameworthiness o Because we are beings with moral agency, we are punished when we use our free will to do something wrong Moral desert – often founded on the idea of free will (the person acted from free will, so he gets what he morally deserves Degree of punishment: That which is proportionate (“equal in kind”) to the severity of the offense, or possibly the moral culpability of the offender.
Mixed Theory :
In one version of this view, the main justification for punishment is utilitarian—to prevent crime in the future—but considerations of fairness (don’t punish the innocent, punishment proportional to the severity of the crime) drawn from principles of retribution serve to limit the distribution of punishment, i.e., the conditions and severity of punishment in particular cases. The insistence on the actor’s culpability or blameworthiness embodied in the basic culpability requirements of an actus reus and mens rea is grounded in traditional retributivism and is reflected in the mixed theory of punishment. US v. Jackson (1987)
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CIVIL VS. CRIMINAL APPROACH
CIVIL CRIMINAL
Regulation Punishment Preponderance of evidence Beyond a reasonable doubt Leads to loss of liberty for indefinite period Limited by degree of fault
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ACTUS REUS – CULPABLE CONDUCT
Element of an offense – Such conduct, attendant circumstances, or result of conduct as (a) is included in the description of the forbidden conduct in the definition of the offense; or (b) establishes the required kind of culpability; or (c) negatives an excuse or justification for such conduct; or (d) negatives a defense under the statute of limitations; or (e) establishes jurisdiction or venue. o “Conduct” Elements Describe the acts or omissions required to commit an offense Some crimes prohibit specific conduct, whether or not tangible harm results thereby, such as offenses that prohibit drunk driving. o “Attendant Circumstance” Elements Consist of external facts that must exist in order for the crime to be committed A “result” or “conduct” is not an offense unless certain “attendant circumstances” exist. An “attendant circumstance” is a fact that exists at the time
2.01(3): Criminal liability for failure to act; only when a duty to perform the omitted act is otherwise imposed by law General Rule: Ordinarily, a person is not guilty of a crime for failing to act, even if such failure permits harm to occur to another, and even if the person could act at no risk to personal safety. 5 situations where omission may constitute breach of a legal duty: o By statute o By special relationship o By contract o Voluntary assumption of care by D No need to act IF under a moral obligation o Creation of peril by D (D put P in a dangerous position) Good Samaritan Statutes o Impose a general duty to render aid on the general public o Criticisms: General duty could impose mass liability Does not distinguish easy rescues from hard rescues Hard to draw a line of when someone has a duty or not o Utilitarian view: the statute is good because it forces people to help each other o Retributivist view: you aren’t doing anything morally blameworthy by doing nothing Possession as an “Act” Jones v. United States (1962) Pope v. State (1979)
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MENS REA – CULPABLE MENTAL STATES
To be guilty of a crime, you must have the requisite mens rea to ever material element (actus reus) of the crime o Broad (“culpability”) meaning – a person has acted with “mens rea” in the broad sense of the term is she committed the actus reus of an offense with the “vicious will,” “evil mind,” or “moral blameworthy” or “culpable” state of mind. o Narrow (“elemental”) meaning – “mens rea” exists in the narrow sense of the term if, but only if, a person commits the actus reus of an offense with the particular mental state set out expressly in the definition of that offense. Helps distinguish between inadvertent/accidental acts and acts performed by one with a “guilty mind” MPC Levels of Culpability: o Purposely (2.02(2)(a)) Conscious objective to cause the result If material element involved the nature of D’s conduct or a result thereof, it is D’s conscious objective to engage in conduct of that nature or to cause such a result If material element involved the attendant circumstance(s), D is aware of the existence of such circumstances or he believes/hopes they exist o Knowingly (2.02(2)(b))
Aware that the result is practically certain to result from conduct (result) Aware that the circumstances exist; or aware of a high probability of its existence, unless he actually believes it does not exist (attendant circumstance) “If the element involved the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist AND if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.” o Recklessly (2.02(2)(c)) D consciously disregards substantial (subjective) AND unjustifiable (objective) risk A gross deviation from the standard of conduct Considers the nature of the conduct and circumstances known to him o Negligently (2.02(2)(d)) D should be aware of substantial and unjustifiable risk A gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation 2.02(5): Each higher level of culpability satisfies the lower ones o When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly, or recklessly. o When recklessness suffices to establish an element, such element is also established if a person acts purposely or knowingly. o When acting knowingly suffices to establish an element, such element also is established if a person acts purposely. What if the mens rea is unclear? o 2.02(3): Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly, or recklessly with respect thereto. o 2.02(4): Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears. Culp. Level Conduct Attendant Circumstance Result Purposely D’s conscious object is to engage in such conduct. D is aware/hopes/believes that circumstance exists D’s conscious object is to cause this result Knowingly D is aware his conduct is of this nature D is aware the circumstances exist D is aware that the result is practically certain Recklessly D consciously disregards a substantial and unjustifiable risk that he is engaging in the proscribed conduct D consciously disregards a substantial and unjustifiable risk that the proscribed circumstances exist D consciously disregards a substantial and unjustifiable risk that the result will occur
Does not matter whether the mistake of fact is reasonable or unreasonable (must only be an honest or good faith mistake) D is not guilty of a specific-intent crime if her mistake of fact negates the specific-intent element of the offense. o General-Intent Offenses General Rule: D is not guilty of a general-intent offense if her mistake of fact was reasonable. (Must be honest AND reasonable) Exception: “Moral Wrong” Doctrine – there should be no exculpation for a mistake where, if the facts had been as the actor believed them to be, her conduct would be immoral, albeit legal. By knowingly committing a morally wrong act, an actor assumes the risk that the facts are not as she believed them to be (i.e., that her actions are not just morally wrong, but also legally wrong). “Legal Wrong” Doctrine – a person is guilty of criminal offense X, despite a reasonable mistake of fact, if she would be guilty of a different, albeit lesser, crime Y, if the factual situation were as she supposed. o Strict Liability Offenses A mistake of fact, whether reasonable or unreasonable, is NEVER a defense Requires no proof of mens rea, therefore there is no mens rea to negate D’s mistake of fact is legally irrelevant Under the MPC, ignorance or mistake as to a matter of fact is a defense IF it negates a mental state required to establish a material element of the crime. o 2.04(2): Ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed. o 213.6(1): imposes strict liability on statutory rape of 10 (or less) years old Regina v. Prince (1875) People v. Olsen (1984) B (a minor) v. Director of Public Prosecutions (2000) Garnett v. State (1993)
3. MISTAKE OF LAW
A mistake of law can involve three distinct type:
Mens Rea Determined by
the Court
Mistake of Fact Defense
Strict Liability NO mistake (even if reasonable) Negligence Only a REASONABLE mistake Purpose Reasonable OR unreasonable mistake Knowledge Reasonable OR unreasonable mistake
o Mistake of “governing” (same) law, based on D’s own misconception of the meaning or application of the law defining the offense. ( People v. Marrero ) o Mistake of “governing” (same) law, which mistake is induced by D’s reasonable reliance on an official statement of the law, afterward determined to be invalid or erroneous. ( U.S. v. Albertini ) o Mistake of “non-governing” (different or collateral) law, i.e., a mistake about a “legal element” in the definition of the crime, which element derives its meaning from some legal rule external to (or other than, or collateral to) the law defining the offense. ( Smith (David) , Weiss ) Such mistake will be a defense IF it negates the mens rea required to establish the element in question General Rule: Knowledge of the law is not an element of an offense. Thus, a mistake of law, even a reasonable one, does not ordinarily relieve an actor of liability for the commission of a criminal offense. o Exceptions: D is not guilty of an offense if his mistake of law, whether reasonable or unreasonable, negates an element of the crime charged Reasonable Reliance Doctrine – D is not guilty of an offense if, at the time of the offense, he reasonably relied on an official statement of the law, later determines to be erroneous, obtained from a person or public body with responsibility for the interpretation, administration, or enforcement of the law defining the offense 2.04(1): Ignorance or mistake as to a matter of fact or law is a defense if it negatives the purpose, belief, recklessness, or negligence required to establish a material element of the offense. 2.02(9): Neither knowledge nor recklessness or negligence as to whether conduct constitutes a crime or as to the existence, meaning, or application of the law determining the elements of an offense is an element of such offense. Justifications: o Certainty of the law o If recognized as a defense, it would invite fraud. Every D would assert ignorance or mistake o Promote knowledge of the law People v. Marrero (1987) Lambert v. California (1957)
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HOMICIDE
Two kinds of questions about any category of crime: o What distinguishes criminal from non-criminal behavior? (question of criminality) The distinction between criminal and non-criminal homicide usually turns on such issues as causation, self-defense, insanity, etc. o What factors warrant greater or lesser punishment when behavior qualifies as criminal? (question of grading)
o Approaches MPC No premeditation at all Reject premeditation and deliberation as a way of dividing murder into degrees Carroll Any amount of time if sufficient to establish premeditation Premeditation can be found an instant before or even at the time of the homicide/killing Guthrie Must have premeditation & deliberation AND intent to kill Premeditation needs a significant amount of time to think about what you’re going to do (distinguished from the mere intent to kill) o Evidence of premeditation ( People v. Anderson ): (1) Planning activity – facts regarding D’s behavior prior to the killing which might indicate a design to take a life (2) Motive – facts about D’s prior relationship with the victim which might indicate a reason to kill (3) Nature or manner – evidence that the manner of killing was so particular and exacting that D must have intentionally killed according to a ‘preconceived design’ No specific combination of these classes of evidence is essential and that other types of evidence may also suffice. Commonwealth v. Carroll (while premeditation is an element of 1st^ degree murder, where a killing is willful, deliberate, and intentional, no time is too short for the necessary premeditation to occur; premeditation is the intent to kill (all you need for 1st^ degree murder is an intent to kill, the two are the same thing) State v. Guthrie (there must be some period between formation of the intent to kill and the actual killing which indicates the killing is by prior design) Young v. State (no appreciable space of time between formation of the intention to kill and the act of killing was required. Premeditation and deliberation may be formed while the killer is pressing the trigger and fired the fatal shot.) People v. Anderson (there was no evidence that D planned the killing; shows problem with premeditation requirement as sometimes an impassioned decision to kill is more culpable than a dispassionate planned murder) State v. Forrest (D convicted of premeditated first-degree murder after shooting terminally ill father while sobbing with emotion) Provocation (Common Law Approach) o The prevailing view that “words cannot suffice,” has been softened in many jurisdictions to allow an exception when the words provoke, not simply because they are insulting, but because they disclose facts that could be sufficient if D had observed them directly. o Traditional Classes of Provocation: Extreme assault or battery of D Sudden mutual combat
D’s illegal arret Injury of serious abuse of D’s close relatives Sudden discovery of spouse’s adultery (must see it happen) o Flexible Approach Provocation does not need to fit within the traditional classifications; anything the natural tendency of which would be to produce such a state of mind in an ordinary man (leave it to the jury) Words alone are almost never enough There might be an exception for words that inform D of conduct that if D personally observed would constitute adequate provocation o Cooling time The CL view is that a significant lapse of time between the provocation and the act of killing renders the provocation inadequate “as a matter of law” and therefore deprives D of the right to an instruction of voluntary manslaughter. U.S. v. Bordeaux (because the revelation of the rape had occurred much earlier in the day, and because the fatal act was committed “well after” the beating of White Bear had ended, there was no rational basis for the jury to find that D killed White Bear in the heat of passion) Many [modern] courts are unwilling to allow “rekindling” of prior provocation State v. Gounagias (held that the legally sufficient provoking event had occurred two weeks before the killing and that the interval constituted adequate cooling time as a matter of law) Commonwealth v. LeClair (D’s prior suspicions provided adequate cooling time, and therefore no manslaughter instructions were required) Some courts permit the jury to make the judgment whether sufficient cooling time has elapsed People v. Berry (D was entitled to a manslaughter instruction because the jury could find that D’s heat of passion resulted from a long-smoldering prior course of provocative conduct by the victim, the passage of time serving to aggravate rather than cool D’s agitation) o Rationale of provocation defense: Partial excuse (majority view) – the killer’s inflamed emotional state so comprised his ability to conform his conduct to the demands of reason and law as to render him substantially less blameworthy for his conduct The defense is rationalized because a person with normal self-control when provoked could lose their ability to compose their normal disposition Culpability – the actor has committed a crime but is forgiven because of the concession to the frailty of human nature Partial justification (minority view) – the provoked is less wrongful than is an unprovoked killing The victim did something wrong and D is justified in punishing the victim The victim is in some sense blameworthy Actor has some sort of right to get back at the victim
o Objectivity and Individualization in the Concept of Criminal Negligence General prevailing rule: Do not impose manslaughter liability in cases involving ordinary negligence The Felony-Murder Rule [controversial rule] o Rule: Imposes strict liability for killings that result from the commission of a felony, regardless of whether the felons knew or should have known that their conduct was endangering life BARRK (acronym of felony crimes this rule applies to) Burglary Arson Robbery Rape Kidnapping o Eliminates the MR requirement, but it still MUST be shown that D’s conduct “caused” a person’s death o Limitations: Actual and Proximate Cause—defendant’s conduct must be the actual cause of the death death would not have occurred but for/in the absence of the defendant’s conduct death must be a foreseeable result of the felony (resulting death must be attributable to defendant’s actions) Example—defendant pilot was transporting marijuana, drove through fog and plane crashed (crash not foreseeable result of transporting the drug— no felony murder) Inherently Dangerous Felony Limitation— the predicate felony must be inherently dangerous (robbery, rape, burglary, arson, kidnapping, malum in se) in the abstract; OR look to see if the particular felony was committed dangerously Independent Felony (Merger) Limitation— felonies that merger with homicide Other types of homicide, example manslaughter, is already homicide so they cannot be bumped up to murder homicide A felony does not merge with a homicide where the act causing death was committed with an independent purpose other than the purpose to cause death (arson’s purpose is not to cause death) Killings Must Be in Furtherance of the Felony— a felony continues to be perpetrated during the defendant’s effort to escape Example—State v Amaro, defendant and co-felons were arrested and the police officer searching the house was shot and killed by a co-felon The co-felon’s act was foreseeable and in furtherance of the common design BUT a look out for a burglary who rapes and kills a woman is not in furtherance of original crime o Killings by Non-Felons Agency Theory—felons are liable for felony-murder only if the killing is done by the defendant or by a co-felon (the identity of the killer is a central issue)
Defendant cannot be liable if some third-party causes the death Shield Cases Exception—if the defendant or a co-felon uses the victim as a human shield and the victim is shot and killed by some third-party, then the defendant is liable Proximate Cause Theory One—a felon is liable only if the person killed is an innocent party (identity of the deceased is a central issue) Defendant is not liable for the death of a co-felon by a third party Proximate Cause Theory Two—a felon is liable for the death of any person proximately caused by the felon’s conduct (any killer/any victim) MPC—implied malice; where the killing occurs during a highly dangerous felony, the felon may be held liable for implied malice instead of the felony- murder since the actions were taken with a conscious disregard for human life State v. Canola Misdemeanor-Manslaughter Rule —minority; a misdemeanor resulting in death is an involuntary manslaughter conviction without proof of recklessness or negligence o Limitations: proximate cause (expired driver’s license has no connection to the accident caused by another driver’s negligence) regulatory offenses; dangerousness (misdemeanor must have been dangerous to life under the circumstances)
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CAUSATION
FORESEEABILITY AND COINCIDENCE
Actual cause – the actor’s conduct is an actual cause if BUT FOR the conduct the death would not have occurred; the harm would not have occurred in the absence of the defendant’s act Proximate cause – the actor’s conduct must bear a sufficiently close relationship to the resulting harm; the harm must be closely enough related to the defendant’s conduct such that it is fair and just to impose criminal liability (foreseeability) Omissions as Causes: court uniformly treat omissions as the legal cause of a result in situations where there is a duty to act Transferred intent o A person is liable for crimes committed against X, even when they intended to commit them against Y. o §2.03(2)(a): where the crime requires that D intentionally cause a particular result, that element of the crime is satisfied if D accidentally inflicts that injury on one person while intentionally trying to injure another.
SUBSEQUENT HUMAN ACTIONS
SUBSEQUENT ACTIONS INTENDED TO PRODUCE THE RESULT
o MPC – supports convicting a person of criminal homicide for causing another to kill themselves but only if the defendant purposefully causes the death by force, duress, or deception § 210.5 (1) o Reckless or Negligent Aid Exception – one who recklessly or negligently makes such means available to a person who is intoxicated and despondent or agitated can sometimes be convicted of a lesser degree of homicide such as involuntary manslaughter o People v. Campbell (D angry at victim for having sex with D’s wife; D encouraged victim to commit suicide and gave victim his gun) Hoping someone will kill themselves is not enough intent for murder Providing the means of suicide is not a proximate cause of death The victim’s actual act of killing is a superseding cause Encouraging another person to kill himself and creating conditions to more readily facilitate that person in taking his life, does not rise to the level of intentional murder o People v. Kevorkian (A conviction of murder is proper if the defendant participates in the final overt act that causes death [firing a gun or pushing a needle] but not where the defendant is involved in the events leading up to the act such as furnishing the means) Simply providing the means for suicide does not cause the death SUBSEQUENT ACTIONS THAT RECKLESSLY RISK THE RESULT The voluntary-actor doctrine in the setting of reckless subsequent action reflects a fully voluntary choice o People v. Kern (white Ds chased black victim with bats threatening to kill him when he was fatally struck by a car while running away; upheld conviction of second-degree manslaughter because they were the DIRECT cause) o People v. Matos (police officer fatally fell down an air shaft while chasing D after he committed armed robbery; upheld conviction for felony murder as the cop’s death was FORESEEABLE) Commonwealth v. Root (D accepted victim’s challenge to drag race; victim swerved into oncoming traffic and died; involuntary manslaughter requires both reckless conduct on the part of D and that such recklessness was the direct cause of the resulting death; the victim’s acts were voluntary and knew of the danger but chose to swerve into oncoming traffic) State v. McFadden (D and victim drag-raced; victim swerved into oncoming traffic; a D may be held criminally liable for the death of another where there is evidence that D’s conduct was a proximate cause of the resulting death) Commonwealth v. Atencio (D and decedent played Russian roulette together and when it was the decedent’s turn, the gun went off, killing him; A person is criminally liable for the death of another where he cooperates in a reckless activity that brings about the death of another participant) MPC §2.03: holds an actor responsible for a result when his action is a but-for antecedent, if it involves the same kind of harm he intended or risked, so long as it 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.”
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ATTEMPT
If a person acting with criminal intent takes significant steps toward the commission of a crime but fails to commit that offense, that individual may be guilty of criminal attempt. MPC o The punishment is the same as the completed crime o §5.01(1): 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 which 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 which, 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. o Punishes equally because: The mens rea is the same as one who complete the crime The failure may just be a matter of luck The deterrent effect will be the same, so there is no reason to punish attempts less severely o Rationale for punishing attempt Utilitarian: deterrent (prevent people from even attempting crimes) Retributivist: someone who tries and fails to commit a crime is equally morally culpable Common Law o Same mens rea as target crime o Intent to case target crime/harmful result o Intent for necessary circumstances to exist
It must be proved beyond a reasonable doubt that the accused intended to commit the crime and that he did some act toward committing it Intent + remote act = attempt o Substantial step (MPC) Mens rea + actus reus [must have taken a substantial step toward the completion of the crime; must corroborate with the criminal purpose. Substantial step requirement will impose liability only when criminal purpose is shown, but no finding is required as to whether the actor would probably have desisted prior to completing the crime [focus on what the actor already did rather than what remains to be done] o Equivocality test The act must be criminal intent on its face Just the act, no testimony or confessions
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ACCOMPLICE LIABILITY
People who are closely associated with the commission of a crime, but do not actually commit the crime o Accomplices and principals are guilty of the same crime and punished the same o Principal – actually commits the crime o Accomplice – aids the principal Accessory – a person who is not the chief actor in the offense, is not present at its performance, but in some way is concerned either before or after the act Conspiracy – criminal conspiracy is an agreement or combination by two or more persons to commit a crime o Carries its own penalty o Sometimes has the further consequence making each of the co-conspirators criminally responsible for the acts of conspirators committed in furtherance of the planned criminal activity, whether or not those acts were planned as long as they were reasonably foreseeable Criminal Facilitation – a person is guilty of criminal facilitation when he believes it is probably that he is rendering aid to a person who intends to commit a crime, he engages in conduct which provides such a person with the means or opportunity for the commission and in fact aids such a person to commit a felony
o Compromise between mens rea of knowledge and mens rea of purpose o Aid without purpose = a separate crime with a lesser penalty than the crime aided MENS REA Natural and Probable Consequences Test o An accessory is liable for any criminal activity which in the ordinary course of things was the natural and probable consequence of the crime that he advised and commanded although such consequence was not intended by the accessory o Reasonably foreseeable doctrine ( People v. Luparello ) No intent to facilitate murder Guilty of any reasonably foreseeable offense committed by person he aids and abets Very broad Rejected by most jurisdictions Aiding/abetting felony murder permits felony murder charge No mens rea required Any probable consequences to felony your aid, you’re on the hook for o MPC One who solicits an end, or aids/agrees to aid in its achievement, is accomplice if envisaged offense, but not liable for wholly different crime REJECTS natural/probable of Luparello ACTUS REUS Need agreement to help the person – not liable if just stand by and do nothing to stop them (omission acceptable ( Hicks v. U.S. )) Threshold is low: o Encouragement ( Wilcox v. Jeffrey ) o When multiple parts to offense, need just to have facilitated part of it Do not need but-for cause ( State ex rel. Attorney General v. Talley, Judge ) Complicity by omission o MPC: A person can be an accomplice if he has a legal duty to prevent the offense and he fails to do so with the purpose of promoting or facilitating the crime o Omission = legal duty + purpose ATTEMPTED COMPLICITY Common law o Attempt to counsel does NOT equal counseling if you do not actually counsel Cannot be guilty of attempted aiding and abetting MPC o A person acting with the required mens rea is an accomplice whether the person aids or attempts to aid another person in planning or committing the offense If the principal commits the crime = both guilty If the principal attempts to commit the crime = both guilty of attempt
