Criminal : Week of November 5

November 6

Review

• Felony Murder: Strict liability murder. Someone dies while you are committing a felony. First plan for limiting it: fact driven-- was this actually dangerous conduct? Second plan: rule driven-- just limit it to specific felonies. This is a common dichotomy: fact-based fairness vs. bright-line rules. Note that it can happen during an attempted felony, you don't have to have a successful felony for it to count.
• Homicide by OWI: Another strict liability homicide. Simplifies prosecution, because there's no need to prove recklessness or negligence. Two standards:
  • Actually impaired: swaying or un-sober when pulled over
  • PAC: no need to prove impairment
  There was actually a grant to film drunk drivers, in the expectation that they'd do drunky things and then plead guilty when they saw the tapes. Ironically, they just sat there. Still the point is that the state does not have to show any actual bad driving, under PAC: they just have to prove "operation" and "caused death" and PAC. The drunken-ness doesn't have to be the cause of death, even. Note that the level for PAC is different for prior offenders, and for commercial drivers. It is 0 for minors.

  Another surprise: if you are found to be impaired, you can be found guilty here even with lower alcohol content (this is common in drug interactions, etc).

  "Implied consent law:" for the privilege of driving, you've basically agreed to provide a sample (blood, urine, etc.) if there's probable cause. You can double-lose: refuse the test and get the penalty for that, and then get taken to the hospital anyway for testing.

• Causation: "substantial factor" is pretty much all the guidance we get-- it's down to the common sense of the fact finder. There can be more than one cause, of course, and an intervening or supplemental cause may not be sufficient to save you (medical malpractice, e.g.). The year-and-a-day rule is gone.
• Omissions or Failure to Act: Includes involuntary acts. Two ways in which this can invoke criminal law:
  • Statute explicity defines failure to do something as a crime (e.g. file a tax return); we see this with protected groups like old folks, etc.
  • General duties for care, whose omission amounts to recklessness
  Unless you have one of those two situations, we don't have a general affirmative duty to stop crimes or care for strangers.

November 6

• Attempt: why punish incompleted crimes? Because they create a risk of harm, and they carry similar moral weight to successful crimes. Also, for every burglar that gets caught, they've probably committed other burglaries.
• The MPC is strangely written. But it recognizes three types of attempts:
  1. Would have been a crime if the circumstances were as the actor thought (e.g., sting operation)
  2. Actor has completed his part of the crime, but other folks screw it up
  3. Actor has not completed his part of the crime
• People v. Miller
  Commentary in class
  The court says it's impossible to formulate a general rule, and then proceeds to give one:
  • Specific intent to do the crime
  • Direct act done towards the commission
  Just intent is insufficient. Also, just preparation is insufficient. It's hard to say where preparation ends and direct movement starts. They want an "appreciable fragment" of the crime committed, but that seems quite a hard standard to define, let alone apply.
• People v. Rizzo
  Commentary in class
  Talk about your direct and ineffectual acts... Sufficiency of the evidence. Interesting question; why did the officers stop Rizzo & company? Did they know them or something?

  Here, you needed to have an act tending, but failing, to effect the commission of the crime. They had not managed this-- all they did was preparation. The "danger of success" must be very great.

• Note also Hyde v. United States (not briefed because all we got was one paragraph): attempt requires a "dangerous proximity to success."
• State v. Judge
  Commentary in class
  Was going to break his friends out of jail, put hacksaw blades in candy bars, put them in a bag under a truck, and then told law enforcement. Holy crap.

  So there's preparation galore. It was a direct and ineffectual act, for sure. And here we've got proximity to success. At what point did he become an attempter instead of a preparer? Not when he accepted the money, or when he prepped the candy bars, but when he left the goods behind the truck.

• State v. Damms
  Commentary in class
  Factual impossibility does not preclude conviction: that is not an element of the attempt.

  The second question (does he know the gun is unloaded) was not in our book. They actually say something quite strange. The jury believed the cops' statement that Damms said he thought it was loaded. But the gun itself was a strong piece of evidence that he would know: it was a semi-auto, and so it would be visually obvious that it was not loaded. At the same time, the jury examined the gun, and they must therefore have concluded that Damms must have been just very excited.

  There was dissent in this case: the legislative history shows that impossibility is a defense, and anyway it is also clear that he would have known the gun wasn't loaded.

• State v. Kordas
  Commentary in class
  Another impossibility case, but not physical impossibility. This is legal impossibility.

  Also, note that this was a completed act.

• State v. Berry
  Commentary in class
  Is failure an essential element of attempt? No.

  Note here that even the Supreme Court has to equivocate somewhat. The statute says "would have committed [...] except for." How can they get around the fact that the statute pretty much explicitly says that the crime was not completed?

  Well, they basically say that it just sounds that way when you read it, but really there are just two elements: intent and unequivocal act(s) in furtherance of the crime.

• Very hard to get a jury during hunting season. Sometimes you can get sentencing delayed or incarceration postponed until after hunting season.
• Hamiel v. State
  Commentary in class
  You have two types of rules: ones that mean what they say, and then ones that require a lot of case law and glossing in order to interpret. Note that the case law may not mean what it says also, so you have to wait for the next case.

  When is an attempt a completed crime? Since an attempt is basically an incomplete other crime. Basically, at what point does it still help you to repent and say you want out? Sometime before you're in the back of the squad car.

  This case introduces a lot of reasoning not directly connected to the statute. This is one reason a case will be granted cert: to clarify some point of reasoning or a point of law that needs helping.

• State v. Stewart
  Commentary in class
  Usually, for defense, you'd rather have a jury than just a judge. On technical legal defense strategies, though, it might be worth going to bench trial, or if the state is waiving some other charges in consideration of this.

  So here's more about repentance: if you repent after you've been attempting, it's too late-- you've already attempted. Once it's unequivocat, it's an attempt.

  Note that the film analogy in cited is in a part of Hamiel we didn't get.

  This case is the reason (in the jury instructions) that the language about voluntary abandonment has been deleted.

November 8

• PTAC: It's not the kind of party you might think. Sometimes there's more than one person involved in an offense. Advice to criminals: try to mostly do it on your own. Any single actor may not engage in all of the conduct. This is the way we prosecute the getaway driver for the murder committed in the bank robbery.
• ALI: Someone accountable for another by law, someone who solicits it, or someone who is an accomplice.
• Look up #5 for extra credit: legally impossible to commit a crime.
• Three kinds of PTAC in WI
  1. Committing the crime (a party of one!)
  2. Aiding and abetting
     • Assist;
     • Or ready and willing to assist (and the other knows it)
     • Knows that other person is going to commit, and has purpose to assist
  3. Being part of a conspiracy
     • Joins with another for the purpose of committing a crime
     • Mutual understanding to accomplish a common criminal objectivs
  If any member of the conspiracy commits the crime, then all members are guilty.
• The jurors don't have to agree on which PTAC theory you were on.
• State v. Nutley
  Commentary in class
  Nowadays it would be suspicious if the car did NOT have Illinois plates.

  A shoot-off. That's what they had.

  So they start with the statute: the aiding & abetting type and the conspiracy type. Aiders/abettors don't need an agreement to assist-- they just need a stake in the outcome.

  Then they apply the facts to the potentially liable parties. Welter is a party of one: he's the guy who did the shooting.

  Nutley & Nikl were aiders/abettors on Janzt's death: their conduct assisted the crime (by preventing Jantz from being able to protect himself).

  They're conspirators in the attempted murder of Kohl: they intended to commit the crime of resisting arrest (and the killing is a natural and probable consequence of resistance in this case).

• If the police ask you to be a witness, you can say nothing. You can not lie (must be truthful, or it's obstruction), but just like a suspect, you do not have to say anything.
• Conspiracy. The statute says:
  • Agreement of two or more people towards some sort of crime
  • Each member must (individually and consciously) intend the crime
  But actually the jury instructions differ. They say
  1. Intended the crime
  2. Was a member of a conspiracy to commit the crime
     • With intent that the crime occur
     • Agrees/joins with one or more others for the purpose of committing the crime
     • (can be an informal/implied agreement)
  3. Some member of the conspiracy takes a step towards committing the crime
• Unilateral conspiracy: one person thinks he's in a conspiracy to commit a crime, but the other parties may not actually intend to commit the crime (i.e., they are insincere or something).
• State v. Sample
  Commentary in class
  They define an ambiguous statute as one about the meaning of which reasonable people could disagree. The use of "whoever" calls into question whether plural is required. This is a rare case where the statute takes precedence over the jury instructions: questions of interpreting the statute rest on statutory language.

  They distinguish Nutley: PTAC conspiracy requires an actual crime to occur; pure conspiracy does not require a completed crime.

• Conspiracy withdrawal
  • Voluntarily withdraw, no longer desire the crime
  • Notify other conspirators in time for them to withdraw
  This is an affirmative defense, so the defense needs to produce evidence; then the prosecution must disprove it beyond a reasonable doubt.

  This is something that'll come up more with pure conspiracy, as opposed to PTAC.