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 Chapter 8 Group Criminality Criminal Law Summer 2011 TA Session Slides.

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Presentation on theme: " Chapter 8 Group Criminality Criminal Law Summer 2011 TA Session Slides."— Presentation transcript:

1  Chapter 8 Group Criminality Criminal Law Summer 2011 TA Session Slides

2 Group Criminality  Complicity  Conspiracy  Solicitation

3 Complicity  When several people can be held liable for conduct they commit, or at least plan, together  Accessory, accomplice, co-conspirator – a party to whom liability is imputed  Complicity is not an offense  An accomplice is not convicted of complicity, but the offense he aided or abetted.

4 Complicity  Any sort of facilitation or encouragement – with or without an agreement – suffices.  Complicity imputes the conduct of one person (the principal) to another (the accomplice)

5 Standefer v. U.S.  Four Distinct Categories of Parties to a Crime:  Principals in 1 st Degree: Actually perpetrated the offense.  Principal in 2 nd Degree: Present (actually or constructively) and aided and assisted in commission of the crime.  Accessory Before the Fact: Aided and assisted but not present at scene of crime  Accessory after the Fact: Assisting after the crime is complete

6 State v. Talley  Presence need not be actual; may be constructive.  It is enough for presence for the principal in the 2 nd degree to be in a position to aid the commission of the crime by others.  To be present is to be in a position to aid in the commission of the crime by others.  It is enough to stand guard, to serve as a look-out, or to be in a position to warn.  In this case to be 30 or 40 miles away was to be constructively present.

7 Conspiracy  Agreement between two or more persons to commit an unlawful act or series of unlawful acts.  Separate offense from its object offense.  Conspiracies can be punished more harshly than their object.  Unlike attempt and solicitation, offense of conspiracy does NOT merge into the attempted or completed offense that was the object of the conspiracy.

8 Conspiracy  Common law  Complete upon formation of the unlawful agreement  No act in furtherance of the conspiracy need be proved.  Many jurisdictions require the commission of an overt act in furtherance of the conspiracy  Overt act need not be illegal

9 Pinkerton Rule  An overt act of one partner may be the act of all without any new agreement specifically directed to that act.  The acts of the partner imputed to the other.  A conspirator will be criminally liable for all offenses committed in furtherance of the conspiracy, unless he couldn’t have reasonably foreseen that they would be committed.  Must be in furtherance of conspiracy AND reasonably foreseeable

10 People v. McGee  Ds proposed an arrangement whereby police officers would be paid to prevent the arrest of the Ds’ gambling associates while enforcing the law against competitors. D McGee was later brought into the operation.  No evidence of McGee’s complicity in the bribery.  Court refused to follow “Pinkerton Rule”.  Liability for the substantive offense may not be independently predicated upon D’s participation in the underlying conspiracy.  Participation in a conspiracy does not make one guilty of the substantive crime in which he did not participate.

11 People v. McGee Cont.  Crime of conspiracy is an offense separate from the crime that is the object of the conspiracy  Once a conspiracy (agreement) is shown, the overt act of any conspirator may be attributed to other conspirators to establish the offense of conspiracy and that act may be the object of the crime.  A conviction of conspiracy may stand on the overt act committed by another, for the act provides corroboration of the existence of the agreement.

12 People v. Berkowitz Agreement  D was convicted of conspiring with Alvarez to commit certain drug related felonies. D met with a detective and with his own accomplice, Alvarez, for a transaction of drugs. Alvarez conducted the actual sale, however the details of the transaction lead to the conclusion that the D was involved.  When 2 or more person have entered into an agreement to commit a crime, each of them to some extent may be deemed to speak as an agent for the others.  Once an illicit agreement is shown, the over act of any conspirator may be attributed to other conspirators to establish the offense of conspiracy.  Court adopted unilateral theory : A D may be convicted of conspiracy even though all other parties to the agreement are not criminally liable due to age, lack of intent,, or some similar impediment.

13 People v. Berkowitz Cont.  Doctrine of collateral estoppel may be used only against a party who has had a full and fair opportunity to previously litigate that same issue.  A D whose own interests were not put directly in issue at the prior trial may not utilize the doctrine of collateral estoppel as a bar to his own prosecution.  No one can be convicted of conspiracy if there exists no illicit agreement.  In a joint trial of only 2 persons to conspiracy, acquittal of one requires the dismissal of the other.  In separate trials – Acquittal of one does not automatically require relief to the other, so long as proof shows illicit agreement between 2 or more.

14 Wharton’s Rule  An agreement by two people to commit an offense that by definition requires the voluntary concerted criminal participation of two persons – e.g. adultery, bigamy, incest – cannot be prosecuted as a conspiracy.  Does not apply if more than the minimum number of persons necessary to commit an offense agree to commit the crime.  MPC does not recognize Wharton’s Rule.

15 Solicitation  Occurs when a person intentionally invites, requests, commands, hires, or encourages another to commit a crime with the specific intent that the other person consummate the solicited crime.  Complete upon communication of the solicitation to another.  Neither the solicitor nor the solicited party needs to perform any act in furtherance of the substantive crime.  MPC establishes “renunciation” as a defense to solicitation.

16 Solicitation  Solicitation needs agreement to merge.  Refusal still holds solicitor liable.  Where an actor solicits another to commit an offense and the other does so, the solicitor is liable as an accomplice.  Soliciting another to commit an offense is a form of complicity.  Solicitation can be simply an “attempt to conspire.”  An agreement is reached and a conspiracy formed only if the solicitation is successful. The solicitor then becomes a conspirator.  An actor cannot be liable for both solicitation and conspiracy or for any two inchoate offenses toward the same offense.

17 Solicitation  MPC §5.02  With the purpose of promoting a crime, a person encourages or requests another to engage in such conduct which would constitute the crime.  Complete and voluntary renunciation is an affirmative defense.

18 Benson v. People  Dept. of Welfare conducts an investigation of adoption practices in LA county. D told the investigator (who was at the time acting as a victim) that there were ways of getting around the law in regards to adoption of legitimate children. The solicited act could not be completed since the D’s client was an investigator.  The act solicited must be criminal.  It is immaterial that the crime solicited is not possible of fulfillment, if the solicitor believes that the act can be committed.

19  Chapter 9 Rape Criminal Law Summer 2011 TA Session Slides

20 Rape  Common law – “The carnal knowledge of a woman forcibly and against her will.”  “Carnal knowledge” was penetration of the female sex organ by the male organ  Commission of this act was “forcibly,” which required resort to force or threat of force above and beyond that inherent in the penetration.  The penetration also had to be against the will of the victim.  Consent was conclusively presumed when a man engaged in intercourse with his wife  No manifestation of refusal of consent was necessary when the female was under 10 years of age and thus deemed incapable of consent as a matter of law.

21 Rape  Supreme court has held that the death penalty is unconstitutional in rape cases (Furman v. Georgia)  Rape shield laws have been enacted and bar admission of the complainant’s prior sexual conduct in many instances.  MPC §213.1  Code imposes strict liability where the victim is under 10 – Thus no mistake as to the victim’s age will provide a defense.  Code continues the common law’s spousal exception (many states have dropped the spousal exception)  Exclusion applies also to persons living as man & wife (213.6)  No requirement that the victim physically resist the attack.

22 MPC Rape Cont.  Prompt complaint required (3 months) [213.6]  Requires corroboration of complainant’s testimony (213.6)  Follows the common law rule of limiting liability to males who victimize females.  Decriminalizes deviate sexual conduct – extramarital (adultery, fornication) and “same sex” sexual intercourse.

23 Varieties of “Coercive” Sex  Force or fear of violence  Nonconsensual sex  Sex without affirmative consent  Fraud  Incapacity to consent.

24 Commonwealth v. Berkowitz  Facts: V went to the dorm room of a friend and discovered an individual that she thought was her male friend but realized later it wasn’t. D touched the V on her chest area then moved her to the bed where he penetrated V.  Rape statute required forcible compulsion or threat of forcible compulsion.  No showing of force or threat of force.  Saying “no” is relevant to the issue of consent, but not relevant to issue of force.  Evidence supports conviction of indecent assault (without consent), but not rape (forcible compulsion/threat of forcible compulsion).

25 State in the Interest of M.T.S.  Facts: D (17) engaged in consensual kissing and heavy petting with 15 year old girl and thereafter engaged in actual sexual penetration of the victim to which she had not consented.  Court found that there was no consent to sexual penetration; therefore, did not need to determine whether the consent would have been freely given.  Sexual assault statute required sexual penetration and physical force or coercion (separate and distinct elements).  Consent/permission to engage in sexual penetration must be affirmative and must be given freely.  Victim not required to resist and need not to have said or done anything for the penetration to be unlawful.  The burden is not on the victim to show non-consent, denied permission, resistance, or protest.

26 Commonwealth v. Mlinarich  Facts: Threats were made by adult guardian to 14 year old girl that she would be recommitted to a juvenile detention facility unless she agreed to sexual intercourse.  Rape statute required forcible compulsion or threat of forcible compulsion.  Compulsion means to “overcome the will” of the victim in contrast to a situation where the victim can make a deliberate choice, even though the alternative may be undesirable.  Forcible compulsion means the result must be non-voluntary, rather than to describe the character of the force itself.  Victim had a deliberate choice, therefore the submission was a result of a deliberate choice and was not an involuntary act.  Deliberate choice is a product of reason and not an involuntary act.

27 State v. Hilton  D demanded that his 17 year old adopted stepdaughter have sex with him in exchange for “permission to go places, to do things, or to get things.”  Court held this was not threat of coercion. It was sex for the price of getting things she wanted.

28 Suliveres v. Commonwealth*  Facts: D had sexual intercourse with the complainant by impersonating her long time boyfriend. V believed that the D was her boyfriend but once realizing he wasn’t stated that she would never have slept with him had she known.  Intercourse where consent is achieved by fraud does not constitute rape.  Fraud in the factum : where there has been fraud as to the essential nature of a legal instrument or as an essential element of it (pg. 722 example)  Fraud in the inducement : when a misrepresentation leads another to enter into a transaction with a false impression of the risks, duties, or obligations involved.

29 Boro v. People P. 772, note 1  Fraud in the factum : If deception as to the fact itself leads to consent, the consent is not recognized as valid because what happened is not that to which consent was given.  Fraud in the inducement : consent induced by fraud/misrepresentation is valid consent so far as legal consequences are concerned.

30 Incapacity to Resist  Sleeping  Unconscious  Otherwise Incapacitated

31 McKinney v. State  Facts: Female was on a road trip with the D and some friends and was subsequently sexually assaulted by them.  Rule: A sexual assault is without the consent of the other person if: the other person has not consented and the actor knows the other person is unconscious or physically unable to resist.  Victim was able to talk, move her body, and by her own admission resist.  Judgment reversed and D acquitted because no reasonable jury could find from the facts that the victim was unconscious or unable to resist.


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