Possession as a Criminal Act

I. Possession as a criminal act

a. Possession is a passive state, not a positive act

b. Legal fiction makes it an act for good policy reasons

i. Nip crime in the bud

ii. Many times possession is the result of a voluntary act

c. Two aspects of possession

i. Control of items and substances

1. Actual (substance or item on the person)

2. Constructive (control the stuff but not on the person)

ii. Awareness of control

1. Knowing possession (you know you possess the stuff)

2. Mere possession (the stuff is physically on you, but you don’t know it)

d. Kinds of possession

i. Control: actual and constructive

ii. Awareness: knowing and mere

The Principle of Causation

I. The principle of causation

A. Applies only to crimes of criminal conduct causing criminal harm

B. Two kinds of causation

1. Factual (“but for” or “except for”) cause

a. Boils down to an empirical question of fact

b. “Except for” or “but for” an act by the defendant that triggered a chain of events, would this criminal harm have occurred?

c. A necessary but not sufficient cause for proving causation

2. Legal (proximate) cause

a. Based on a subjective question of fairness: Should the defendant be blamed and punished for this injury or death?

b. Two types of intervening acts in the chain between the triggering act of defendants and the end result of criminal harm

(1) Coincidental intervening acts break the causal chain unless they’re foreseeable (predictable)

(2) Responsive intervening acts only break the causal chain if

(a) They’re abnormal

(b) They’re not foreseeable

Parties to the Crime

I. Two types of liability for someone else’s crimes

A. Parties to crime (complicity) establishes when you can be held liable for others’ crimes

B. Vicarious liability establishes which types of relationships can create criminal liability

II. Parties to crime

A. Four types of parties to crime at common law

1. Principals in the first degree actually commit the crime

2. Principles in the second degree are present when the crimes are committed

3. Accessories before the fact

a. Help before the crime is committed

b. Are not present when the crime is committed

4. Accessories after the fact help after the crime is committed

B. Participation before and during crime (accomplices)

1. Are prosecuted for committing the crime itself (helping a murderer is murder)

2. Accomplice actus reus

a. Core idea—accomplice took some positive act to help commit a crime

b. Words can be accomplice actus reus

c. Presence at the crime scene isn’t enough unless there’s a duty (parent to minor child)

d. Actions after the crime can be relevant to prove actus reus

3. Accomplice mens rea

a. Purposely clearly qualifies

b. Jurisdictions vary and sometimes are confused as to whether knowledge, recklessness, or negligence qualify

C. Participation after the commission of a crime (accessory)

1. Is a separate lesser offense than accomplice liability

2. Elements of accessory after the fact

a. Accessory personally helped the person who committed the felony (actus reus element)

b. Accessory knew a felony was committed (mens rea element)

c. Accessory helped for the purpose of hindering prosecution (mens rea element)

d. Someone other than the accessory actually committed a felony (circumstance element)

III. Vicarious liability

A. Vicarious liability bases liability on a relationship between a person who commits the crime and someone else

B. Corporate vicarious liability

1. Pinpointing responsibility is difficult because of the complexity of organizations and the number of people making decisions

2. Constitutional and policy questions

a. Due process issues

(1) Liability is based on relationship and not acts and/or intent

(2) Fairness to shareholders, who usually pay the fines

b. Policy question—is there a deterrent effect?

C. Individual vicarious liability

1. Traffic violation

a. Difficulty proving who parked the vehicle

b. Prima facie case—presumes driver was the operator and is responsible

2. Parental responsibility

a. Constitutional question—due process of holding parents responsibility solely on the parent-child relationship

b. Policy goals

(1) Protect public from violent juveniles

(2) Get parents to control their kids

Inchoate Crimes

I. Inchoate crimes

A. Inchoate comes from the Latin verb “to begin”

B. Inchoate crimes are separate crimes of starting but not finishing any other crime

C. Whether to make it a crime to start but not finish committing a crime poses a dilemma

1. Is the law punishing someone who’s done no harm or setting free someone who’s determined to do harm?

2. Dilemma of criminal attempt law is resolved through three requirements

a. Requiring specific intent

b. Requiring some action

c. Punishing inchoate crimes less severely than completed crimes

D. Inchoate offenses include

1. Attempt—trying to commit a crime

2. Conspiracy—agreeing to commit a crime

3. Solicitation—trying to get someone else to commit a crime

E. All inchoate offenses are crimes of purpose (specific intent)

II. Attempt

A. Attempt is the crime of trying but failing to commit a crime

B. Rationales for criminal attempt law

1. Prevent harm from dangerous conduct (focuses on how close to completion the crime is)

2. Neutralize dangerous people (focuses on how developed the criminal purpose is)

3. Both (1) and (2) look at actions taken to measure the danger

C. Mens rea of attempt

1. Purpose or specific intent always present

2. No knowing, reckless, or negligent attempts

D. Actus reus of attempt

1. How much action is enough?

a. Preparation isn’t enough to qualify as the actus reus of attempt

b. Toughest problem in criminal attempt: drawing line between preparation and attempt actus reus

2. Tests to help draw the line between preparation and the act of attempt

a. Physical proximity test

(1) Focus

(a) Dangerous conduct, not dangerous people

(b) What’s left to do, not what’s already done

(2) Completion of all but the last act needed to accomplish the crime is surely enough but so are acts falling short of this point, including

(a) Indispensable element test—defendants who’ve gotten control of everything they need to complete the crime

(b) Dangerous proximity test—defendants have gotten dangerously close to completing the crime

b. Unequivocality (probable desistance) test

(1) Focus

(a) Dangerous persons, not dangerous conduct

(b) What’s already done, not what’s left to do

(2) Unequivocality test asks whether an ordinary person observing defendants’ actions without knowing their intent would guess they were determined to commit the crime

c. “Substantial steps” (Model Penal Code) test

(1) Purpose—clarify and simplify other tests

(2) Focus

(a) Dangerous persons

(b) What’s already done, not what’s left to do

(3) Definition—substantial steps that “strongly corroborate” defendants’ criminal purpose

E. Impossibility of completing the crime

1. Legal impossibility is a defense to criminal attempt; factual impossibility isn’t

2. Legal impossibility

a. Defendants intend to commit crimes, do everything they can to complete the crime, but what they intend and do isn’t a crime (intending to smuggle antique books into the country without paying customs; they don’t know it but there’s an exception in the law for antique books)

b. You can’t punish someone for a crime that doesn’t exist

3. Factual impossibility

a. Defendants’ intend to commit a crime and take all the steps necessary to complete it, but a fact makes it impossible (standing over a victim pulling the trigger of a gun the defendant believes is loaded but it’s not)

b. People bent on committing crimes shouldn’t benefit from a stroke of luck

F. Abandonment of attempts

1. Complete and voluntary abandonment of attempts is an affirmative defense in about half the states

2. Arguments in favor of the abandonment defense

a. People who voluntarily and completely give up their criminal attempts aren’t dangerous

b. We want to encourage people who are just about to hurt someone or their property to give up their plans

3. Argument against defense of abandonment—it encourages bad people to take the early steps in committing crimes because they know they won’t be punished

III. Conspiracy

A. Agreeing to commit crimes (criminal conspiracy) is further removed from completed crimes than trying to commit them (criminal attempt)

B. Justifications for conspiracy law

1. Works hand in hand with attempt to nip criminal purpose in the bud

2. Strikes at the special danger of group criminal activity

C. Conspiracy actus reus

1. Agreement to commit a crime is the heart of the crime of conspiracy

a. Doesn’t have to be in writing

b. An unspoken understanding inferred from facts and circumstances is good enough to prove agreement

2. Half the states require an “overt act” in addition to the act of agreement

a. Purpose—verify the firmness of the agreement

b. Act doesn’t have to amount to much; it can be of “very small significance”

D. Conspiracy mens rea

1. Crime of purpose (specific intent)

2. Can mean intent to make the agreement or intent to achieve the criminal objective

E. Parties to conspiracy

1. Traditional—two or more individuals agreeing to commit crimes

2. Unilateral approach—not all the conspirators had to agree to commit a crime as long as the defendant believes they did

F. Large-scale conspiracies

1. Wheel conspiracies

a. Hub—conspirators who participate in all transactions

b. Spokes—conspirators who only participate in one transaction

2. Chain conspiracies—participants at one end of the chain don’t know anything of participants at the other end, but they all handle the same illegal commodity at different points (manufacture, distribution, sale)

G. Criminal objective of conspiracy

1. Traditionally included everything from treason to disturbing the peace

2. Some effort to limit the reach of conspiracy

a. Requires an overt act in addition to an act of agreement

b. Applies to criminal objectives only

IV. Solicitation

A. Definition—the crime of trying to get someone else to commit a crime

B. Arguments against criminal solicitation law

1. The act of soliciting isn’t dangerous enough to punish because an independent moral force (the person solicited) stands between the solicitation and its objective

2. Solicitors aren’t dangerous enough people, and they prove it by needing someone else to do their dirty work

C. Arguments for criminal solicitation law

1. Solicitation is another form of the danger of group criminality

2. Solicitors are smart masters at manipulating others to do their dirty work

D. Solicitation actus reus requires words that actually try to get someone to commit a crime (not just approve the commission of the crime)

E. Solicitation mens rea requires purpose or specific intent to get someone to commit a specific crime

F. The objective of criminal solicitation varies from limiting it to violent felonies in some jurisdictions to including all crimes in other jurisdictions

Defenses

I. Defenses to criminal liability

A. Three legitimate types

1. Alibi—individual proves it was impossible for him to have committed the crime

2. Justification—she’s responsible, but the act was justified

3. Excuse—he committed the wrong but isn’t responsible for his action

B. Affirmative defense

1. Defendants have some responsibility to prove their defenses

2. Government has some responsibility to disprove defenses

C. Results of defendants’ successful proof of defense

1. Perfect defenses—an acquittal results

2. Imperfect defenses—reduce the crime to a lesser offense

3. Mitigating circumstances—reduce the penalty for the crime

D. Motive can influence punishment and sometimes liability

II. Justifications based on necessity

A. Necessity and the rule of law

1. Government has the monopoly on force under the rule of law

2. Necessity justifies violating the rule of law by allowing individuals to take the law into their own hands

3. Strictly limited to situations that meet three conditions

a. The necessity is great

b. The danger of harm is imminent

c. For prevention only

B. Five types of justification defenses

1. Self-defense

2. Defense of others

3. Defense of home and property

4. Choice-of-evils defense

5. Defense of consent

III. Self-defense

A. The elements of self-defense

1. Unprovoked attack (total withdrawal by attackers an exception)

2. Honest and reasonable belief in imminent (not present) danger of death or serious bodily injury

3. Honest and reasonable belief in the need to defend against attack right now—present danger

4. Reasonable (not excessive) force to repel attack

B. The retreat doctrine

1. Two rules

a. You have to retreat if escape is reasonable (most states)

b. If you didn’t start the fight, you can stand your ground even if you could escape by retreating (a few states)

2. Castle exception—retreat from home not required; you can stand your ground