Criminal Law - Week 3 | Quizlet

inchoate offenses

offenses that are committed even if substantive offense envisaged by perpetrator was no completed
ex: attempt, conspiracy, solicitation, facilitation

Subjectivist Approach

(culpability centered)

justification of attempt liability - dangerous or culpability of the actor
----- act is not important, must prove culpability/ dangerousness of person

attempt is constituted in early stage, focus on what has already been done
---- emphasis on crime prevention

Is the act clear evidence of the defendant's intent to commit the crime?

Objectivist Approach

(harmed centered)

justification of attempt liability - committing an act that is dangerous to legal interest
---- focus on dangerousness/wrongfulness of conduct
attempt is constituted in a late stage, focus on what still remains to be done

Is there an act of manifest criminality? How many more steps need to be taken?

manifest criminality

emphasis on wrongful conduct that occurred, not on intention
- objectivist approach

Do England and the Netherlands practice an objectivist or subjectivist approach?

England
- practices objective approach
- attempt liability can only be established if one acts with intention of committing complete offense
- if full offense can be committed recklessly then no liability
- intention of committing the complete offense is required (direct or indirect intent)

NL
- practices a mixed approach
--- objective approach (perpetrator must have initiated the offense)
---- subjective (conduct must manifest perpetrator's intentions)
- lowest form of intention (dolus eventualis) is enough to trigger attempt liability

impossible attempt
imaginary attempt
legally impossible attempt

impossible attempt (killing already dead person)

imaginary ('killing' someone by stabbing a voodoo doll)

legally impossible attempt (committing 'adultery' when it is not an offense)

complete attempt
incomplete attempt
failed attempt

complete attempt: defendant does everything he intended to do in order to affect the criminal project but this fails to bring about the intended consequence

incomplete attempt: defendant does not get to the point of executing the offense

failed attempt: defendant can no longer achieve the intended goal because of external circumstances

Voluntary Withdrawal

- no voluntary withdrawal in English law
- no voluntary withdrawal without an attempt*
---- one can only withdraw from a preparation or attempt (not just thinking of offense)

- Would the reason for withdrawal lead a 'reasonable criminal' to abandon criminal act?
---- Remorse? Realizing an act is morally wrong? No, so voluntary withdrawal applied
---- Fear of getting caught by police? Realizing that you did not bring the right tools to break into the house? Yes, so no voluntary withdrawal applied

perpetrator

person whose liability is primary, direct and not derived from another's wrongdoing (principal offender)

accomplice

person whose liability is derived from the wrongdoing of the perpetrator
- liability is deemed secondary or accessory

What are the different forms of participation?

co-perpetration
- needs to have a common plan or exchangeability of roles to establish sufficiently close cooperation
- neither physical contribution or presence at commission of crime necessary
- role in prep phase or after offense must be significant to justify liability as perp

perpetration by means

instigation
- requires double intention (intent to induce commission of offense and intend offense to be committed)

aiding
- requires double intention (intend to assist act of perpetrator and know the essential matters that constitute objective elements of offense)
--- aider must know general type of crime being committed but not necessarily the details of the respective plan

ordering/actually controlling offense corporation

Perpetrator by Means Criteria

1. derivative liability
--- factual perpetrator is not liable for whatever reason
2. causing factual perpetrator to commit the offense
3. intent to perpetrate by means
4. intent with respect to offense in question

Functional Perpetrator Criteria

functional perpetrator: person controlling the offense, although not acting in a physical way

Actus Reus:
- did A have power to control the criminal
act?
- did A violate a duty of care with regard
to preventing the criminal act?

Mens Rea
- functional perp required to have intent to commit offense in question

Co-perpetration Criteria

1. derivative liability
--- both defendants are liable as co-perpetrators
2. actus reus of co-perpetration
--- Elements of offense definition can be attributed to each other
--- intellectual or material contribution of significant weight
physical presence not required
3. intent to co-perpetrate
4. intent with respect to offense in question

Instigation Criteria

1. derivative liability
2. causing factual perpetrator to commit the offense (psychological causation)
3. means listed in Art 47(1) DCC
---- gifts, promises, abuse of authority, violence, threat, deception, providing opportunity, means or info
4. intent to instigate
5. intent with respect to offense in question

Aiding Criteria

1. derivative liability
2. actus reus of aiding
--- assist during commission of crime
providing opportunity, means or info necessary to commit the crime
3. intent to aid
4. intent with respect to offense in question

Attempt to Instigate Criteria

1. person targeted by attempter did not yet commit a complete or attempted crime
--- no derivative liability
2. means listed in Art 47(1) DCC
3. intent to instigate
4. intent with respect to offense in question

A wants to extort B. He writes him a threatening letter, which says that B's wife will be killed if he does not pay a large sum of money. B does not pay and goes to the police. A is charged with attempted extortion.
"Whosoever, with the object of obtaining unlawful gain for himself or another, compels a person by an act of violence or by threat of violence to surrender any property belonging to that person, is guilty of extortion and liable to ..."
Question: Is A liable for attempted extortion? Make use of the subjectivist and objectivist approach.

subjectivist
- is the act clear evidence of the defendant's intent to commit the crime? yes, sending a threatening letter is very clear evidence of an intent to commit extortion
- complete attempt - A did everything they could possibly do to commit offense

objectivist
- is there an act of manifest criminality? what else remains to be done? nothing else remains to be done so it is a complete offense

A wants to rob a bank. He enters the bank while being armed, in disguise and holding an empty overnight bag. He points the gun at the cashier and yells: "Hands up. Your life or your money!" At that moment the police, who were tipped off by A's wife, intervene.
Question: Is A liable for attempted robbery? Make use of the subjectivist and objectivist approach.

complete attempt - did everything A could possibly do, only stopped bc of police intervention
- so clear that both subjectivist and objectivist criterion are fulfilled

A wants to rob a bank. He walks to the bank while being armed, in disguise and holding an empty overnight bag. He is a few meters away from the bank when the police, who were tipped off by A's wife, intervene.
Question: Is A liable for attempted robbery? Make use of the subjectivist and objectivist approach.

not a complete offense

subjectivist
- is the act clear evidence of intent?
- yes, he is walking to the bank in disguise, armed with an empty bag which is clear evidence of robbery

objectivist
- is there an act of manifest criminality? what else remains to be done?
- has not explicitly manifested robbing a bank as he has not entered the bank, lots of steps that still needs to be fulfilled
- objectively most likely not an attempt

A wants to rob a bank. He buys a gun, a disguise and an overnight bag. He tells his wife that he is going to rob the bank tomorrow. While feeding his Venezuelan piranhas, he is apprehended by the police, who were tipped off by A's wife.
Question: Is A liable for attempted robbery? Make use of the subjectivist and objectivist approach.

subjectivist
- is the act clear evidence of intent?
- probably not constitute an attempt bc items are not necessarily designed for unlawful purpose
- must have taken 'substantive steps' and these steps may not be substantial enough

objectivist
- no, act is too far removed from the offense to be a clear act of manifest criminality

Explain whether the following acts are attempts according to English law:
a. A, intending to kill B, shoots B through the heart. Unknown to A B had died 8 minutes earlier.
b. A, intending to kill B fires a gun at what he takes to be his sleeping form. Unknown to A, B was sleeping in the next room.
c. A who believes in voodoo and intending to kill B, sticks pins in a wax dummy of B in the erroneous belief that this will kill B.
d. A mistakenly believes that adultery is an offense. He has consensual intercourse with B, a married woman

a. This would be considered an attempt because he believed he was alive and acted with this knowledge and intent. This is a case factual impossibility as the offender tried to kill someone who is already dead, but this act is more than merely preparatory

b. This would be considered an attempt under English law as A acted with full intention and virtual certainty that he would shoot and kill B. If the sleeping form had not been mistaken, then his intended act would have manifested

c. While A is acting with full intent to kill B, this would be considered an 'imaginary offense' under English law because the act can in no way lead to the envisaged result.

d. This would be considered a 'legal impossibility' under English law as while A fully believes adultery is illegal and commits the offense with this knowledge, it is not actually an offense and thus cannot be committed or even attempted.

The tennis player Braasch wants to kill his fellow tennis player Karbacher. Braasch believes that the best way to kill Karbacher is to hit him on the back of his head with a tennis racket. When he is practicing with Karbacher the next day, he tells him that he needs a break to consume some cola. Karbacher uses the break to go to the bathroom and leaves the court. Braasch takes a sip of his cola and opens his bag to retrieve the Prince Thunderstick. While he grabs hold of the racket handle he collapses due to a massive heart attack. A combination of anxiety and the cola's caffeine made his heart explode. Fortunately, Braasch makes a full recovery, but he never executes his plan to kill Karbacher.
Question: Is Braasch liable for attempted murder or preparation of murder according to Dutch law?

is there an act of manifest criminality?
- to an outside observer, it would not appear to look like attempted murder so no manifest criminality

not attempt, so it would appear to be preparation as he bought a tennis racket intended for the commission of the crime

The tennis player Braasch wants to kill his fellow tennis player Karbacher. Braasch believes that the best way to kill Karbacher is to hit him on the back of his head with a tennis racket. When he is practicing with Karbacher the next day, he tells him that he needs a break to consume some cola. Karbacher uses the break to go to the bathroom and leaves the court.
Karbacher gets back from the bathroom and is looking down into his bag in order to retrieve some Pocari Sweat. Braasch grabs the intended murder weapon, raises it above Karbacher's head, but just before he was to smash Karbacher's head like a water melon he hears the sound of a little baby who is crying. Suddenly, he thinks about Karbacher's little baby boy (Karly) and decides not to go through with his plan.
Question: Discuss whether or not Braasch is liable according to Dutch law.

first examine whether this is attempt or preparation
- yes, attempt bc clear act of manifest criminality (standing with racket about his head to hit)

Would the reason for withdrawal lead a 'reasonable criminal' to abandon criminal act? Remorse? Realizing an act is morally wrong? No, so voluntary withdrawal applied

A promises B a 1000 euro reward if she commits a burglary in C's house. B is enticed by the idea and decides to commit the offense. Coming near C's house, B sees a policeman on patrol. B decides not to go through with her plan and returns home.

a. Is A liable as an instigator (art. 47 1(2) DCC) to burglary?
b. Is there another way to hold A liable?
c. Suppose B is already trying to force open a door with a crowbar, but when she sees the policeman, she flees. Is A liable as an instigator (art. 47 1(2) DCC) to burglary?

Article 47(1)(2) DCC (instigation)
(1) The following are liable as perpetrators:
----- 2. those who, by means of gifts, promises, abuse of authority, use of violence, threat or deception or providing the opportunity, means or information, intentionally solicit the commission of the crime.

a. Must establish if there is a base offense and since the burglary wasn't committed, there is no offense to derive liability from and thus can not be held liable as an instigator!

b. A could be held liable for attempt to instigate an offense.
1. person targeted by attempter did not yet commit a complete or attempted crime (no derivative liability) - yes this is the case
2. means listed in art 47(1) DCC - yes, use of promise, 100 euros
3. intent to instigate - clear from text they want B to commit offense
4. intent with respect to offense in question - yes

c. 1. base offense - attempted burglary, and since there is a base offense there is derivative liability
2. causing factual perp to act (psych causation) - A caused B to want it, quote text, "enticed by the idea"
3. means listed - yes, promises
4. intent to instigate
5. intent with respect to offense in question
- Yes so can be held liable!

A wants B to assault C. At first, B refuses. However, after A kneels on the floor and begs B to do it ("do this for me, pleaseeeeeeeeeee!") B gives in. B assaults C by hitting him on the head with a tennis racket.
Question: Is A liable as an instigator (art. 47 1(2) DCC) to assault?

1. yes base offense so can derive liability
2. A pleading B did psychologically persuade him to commit the offense, causing the factual perpetrator to act
3. not done by means listed in art 47(1) though so not liable

A promises B a sum of money if he commits a burglary in C's house. B agrees, but while driving to C's house, he changes the plan; B does not commit the burglary, but sets C's house on fire.
Question: Is A liable as an instigator (art. 47 1(2) DCC) to arson?

1. yes base offense is arson so can derive liability
2. causing factual perp to act - yes
3. means listed - yes, promise
4. intent to instigate - yes
5. intent with respect to offense - no, A wanted burglary not intent for arson and thus did not instigate this offense but could be liable for attempt to instigate!

A gives B, an alpaca lover, three alpaca's so that he will kill C. B accepts the offer, but when he enters C's house with a golf club and runs into C's cute son, he changes his mind. He does not want to make C's son an orphan. He decides that just causing severe bodily injury will do. B hits C on the knee with a Callaway Big Bertha fairway wood and thereby causes severe bodily injury.
Question: Is A liable as an instigator (art. 47 1(2) DCC)?

Art. 287 DCC (voluntary homicide):"Whosoever intentionally takes the life of another person..."
Art. 302 DCC (causing severe bodily injury)"Whosoever intentionally causes severe bodily injury to another person..."

instigation of voluntary homicide
1. voluntary homicide did not take place so no base offense and no derivative liability

instigation of severe bodily injury
1. base offense - yes so liability can be derived
2. causing factual perp to act - yes
3. means listed - gift, alpacas
4. intent to instigate - yes
5. intent to respect to offense in question - if you intend for someone to be killed, you must also intend for them to be severely harmed. so yes there is intent!

Thus can be held criminally liable for instigation of causing severe bodily harm

A promises B a sum of money if he causes severe bodily injury to C. A makes B promise him that he will not kill C. When B is hitting C on the head with a hockey stick, C fights back and presses his thumb into B's eye. This enrages B so much that he decides to kill C. B does indeed kill C. When A hears that C has died, he is shocked: he was sure B would keep his promise.
a. Is A liable as an instigator (art. 47 1(2) DCC)?
b. Does your answer change if A makes B promise him that he will not kill C, but A knows that B is a homicidal maniac with serious aggression regulation issues?

Art. 287 DCC (voluntary homicide):"Whosoever intentionally takes the life of another person..."
Art. 302 DCC (causing severe bodily injury)"Whosoever intentionally causes severe bodily injury to another person..."

a. instigation of voluntary homicide
1. derivative liability - yes, base offense
2. causing factual perp to act - yes
3. means listed - yes, promise
4. intent to instigate - yes
5. no intent with respect to offense in question bc they explicitly stated no murder and made a promise

instigation of causing severe bodily injury
1. derivative liability - by causing homicide, they are causing severe bodily harm so there is a base offense to derive liability from
2. causing factual perp to act - yes
3. means listed - yes, promise
4. intent to instigate - yes
5. yes intent to respect to offense in question

b. instigation of voluntary homicide
1. derivative liability - yes, base offense
2. causing factual perp to act - yes
3. means listed - yes, promise
4. intent to instigate - yes
5. while they made B promise not to murder, there is conditional intent as they could reasonably foresee the murder occurring, as opposed to the original story of A being completely shocked, they did possess some conditional intent as they were aware of the possible consequences and accepted it

A gives B a new bicycle so that he will prank C. B has to pretend to shoot C. A will give B a fake gun. B has to aim the gun at C and pull the trigger. According to A, C will be shocked, but eventually he should appreciate the prank. However, A does not give B a fake gun, but a real gun. A is fully aware of this; B does not suspect at all that it might be a real gun. B aims the gun at C's head, pulls the trigger and C's head explodes like a melon. B tries to save C, but this is to no avail. C dies as a result of the shot wound.
Question: Is A liable as an instigator or a perpetrator by means with respect to voluntary homicide?
Art. 287 DCC (voluntary homicide): "Whosoever intentionally takes the life of another person..."

instigation
1. no derivative liability bc B can not be liable for a crime they were not aware of nor chose to commit. Since B can not be liable for homicide, A can not be liable for instigation of homicide

perpetrator by means
1. derivative liability - yes, there is a base offense (homicide) to derive liability. There is no mens rea as B did not want to kill B but A did
2. causing factual perp to commit offense - yes
3. intent to perpetrate by means - yes, supplying the loaded gun
4. intent with respect to offense in question - yes A intended to kill C

A needs money and B tells A of an old lady who hides all her money in a sock. A talks to his friends C, D and E and asks them if they would be interested in robbing her. C is not interested, but does promise to drive D and E to the house in exchange for beer. D and E agree to rob the old lady if they split the loot equally. A tells D and E exactly how to proceed with the robbery. C drives D and E to the house and C waits outside. Just when D finds the sock in the sock drawer, the old lady becomes aware of what is happening but they manage to escape with the money. C drives D and E back to A's house.
a. Discuss D and E's liability with respect to either co-perpetration or aiding
b. Discuss A's liability with respect to either co-perpetration or aiding
c. Discuss B's liability with respect to either co-perpetration or aiding
d. Discuss C's liability with respect to either co-perpetration or aiding

a. D and E = yes, coperpetration
1. derivative liability - there is a base offense that is completed (theft) to derive liability from
2. actus reus - elements of offense can be attributed to each other = yes
- intellectual/material contribution of sufficient weight = yes, both looked for sock, deceived grandma, etc
- both fulfil actus reus of offense and thus co-perpetration
3. intent to coperpetrate - conscious, yes
4. intent with respect to offense in question

b. A = yes, co-perpetration
1. derivative liability - there is a base offense to derive liability
2. actus reus - intellectual contribution of sufficient weight - yes, planned entire offense, important role in preparatory phase- physical presence not required
3. intent to coperpetrate
4. intent with respect to offense in question

c. B = aiding
co-perpetration
1. derivative liability - yes there is base offense to derive criminal liability
2. actus reus - did not provide material or intellectual contribution of sufficient weight

aiding
1. derivative liability - yes there is base offense to derive criminal liability
2. actus reus - yes assisted by providing information
3. intent to aid - yes
4. intent with respect to offense in question - yes

d. C = aiding
co-perpetration
1. derivative liability - yes there is base offense to derive criminal liability
2. actus reus - did not provide material or intellectual contribution of enough sufficient weight

aiding
1. derivative liability - yes there is base offense to derive criminal liability
2. actus reus - yes assisted by driving
3. intent to aid - yes
4. intent with respect to offense in question - yes

Arkansas parents are set to be charged after they enlisted the help of their three children to steal jewelry from a store northwest of Little Rock Wednesday. Authorities reveal at least $30,000 worth of jewelry was stolen from Bella Jeweler's in Rogers. The couple were caught on a surveillance video urging their young children to break into a case at the shop. In the video, that the store has released, the woman is seen pointing at items in the display case that her young son allegedly steals from later on. 'The woman kind of kept a look out while her youngest son went around to steal the jewelry,' Martinez said. 'As she realized that nobody was there, and she got more confident, she started directing him to go back multiple times, and steal more and more jewelry.
Question: In what way can the parents be held liable for this incident under Dutch law. You may assume that the children are not criminally liable.

not factual perps bc did not physically steal/commit theft, the kids fulfilled the actus reus

functional perp - controlled the offense
1. did a have power to control criminal act? yes, could have told children not to steal
2. did a violate duty of care? yes, they are the parents so there is a duty of care, not only accepting offense but ordering it
- thus act can be attributed to parents and functionally committed offense
- mens rea - funct perp is required to have intention to commit offense. yes, appears parents intend for children to steal the jewelry

perp by means
1. kids not liable bc they can not be liable under dutch law, excuse, no mens rea
2. causing fact perp to commit offense
3. intent to perpetrate by means
4. intent with respect to offense in question