Criminal Law - Post-Midterm

What are the elements of larceny?

1. Trespassory taking and carrying away

   1. Trespassory

      1. Nonconsensual/without privilege

   2. Taking (caption)

      1. Assertion of control and dominion over property

      2. SATISFIED BY

         1. any trespassory removal of the property from the owner’s possession into another’s control

         2. Including if D uses an agent (even one who is unaware of the D’s criminal intent) to remove the property from the owner’s possession

      3. NOT SATISFIED BY

         1. destruction (i.e. breaking) of property while it is in the owner’s possession

   3. Carrying away (asportation)

      1. Movement

         1. Satisfied by a very minimal amount of movement

         2. Satisfied if D causes someone else to take it away

      2. A carrying away motion

         1. Movement away from the point of caption

         2. Not just an act in furtherance of the process of taking possession

2. Of tangible personal property

   1. Common Law

      1. Chattel, no pets, no services

   2. Modern Common Law

      1. Personal property; anything that can be moved/is not afixed. Includes pets, services, documents representing intangible rights, utilities

   3. Abandoned & Lost Property

      1. Abandoned = in no one’s possession and cannot be “taken”

      2. Lost = can be taken b/c law considers it to be in the “constructive possession” of the owner

3. From another with possession

   1. Common Law

      1. Not larceny to take property that D jointly owned with co-owner

   2. Modern Common Law

      1. D not entitled to infringe despite D’s ownership interest

4. W/ the intent to permanently deprive that person of their interest in the property

   1. Intent to

      1. Steal

   2. Permanently

      1. Where there is an intent to return → no liability for larceny

         1. D's belief that they will be able to return the item has to be reasonable

   3. Deprive

      1. Looks at the loss to the possessor

What is the mens rea of larceny?

1. 2 parts

   1. Intent to do the act

      1. Take and carry away property to which he knows he’s not entitled

   2. Specific intent

      1. Intent to deprive the rightful owner of possession permanently

What are the elements of Larceny by Trick?

1. D obtains custody of a thing through deceit

2. D takes custody with the specific intent to permanently deprive the owner of it

3. D → violates the owner’s (constructive) possession, commits a trespassory taking → commits “larceny by trick.”

Define breaking bulk. What are the elements of the breaking bulk doctrine?

1. Generally, bailee has possession and may be guilty of embezzlement if she takes the property

   1. Bailor

      1. Person who transfers possession of property, but not ownership

   2. Bailee

      1. Person who receives possession of the property, but not ownership

      2. Has a legal responsibility to take care of the property

      3. Must return the property when the purpose of the bailment is complete

   3. Relationship b/w bailor and bailee

      1. Bailment

      2. Ex. Secure delivery service, customer's car at a valet parking service; bank's safe deposit box, etc.

2. Elements

   1. Where bailee opens closed containers in which the property has been placed by the bailor (i.e. they break bulk)

      1. Possession returns to the bailor → bailee may be guilty of larceny if they take that property

What are the elements of Embezzlement?

1. Fraudulent conversion

   1. Conversion

      1. the inappropriate use of property, held pursuant to a trust agreement, which causes a serious interference with the owner’s rights to the property

      2. Any act that seriously interference with the owner’s right to use it

         1. Ex. Selling property, damaging/ destroying it, unreasonably withholding possession, spending it, giving it as a gift, using it as collateral on loan, consuming it, donating, discarding it, etc

      3. It does not have to be for the benefit of the D

2. of personal property of another 

   1. Property

      1. broader meaning of property than under larceny

      2. stocks, bonds, real property (some states)

   2. Of another

      1. doesn't belong to D

3. by a person who is already in lawful possession of the property

   1. Lawful possession

      1. D has lawful possession before conversion

      2. D has been entrusted with the property by its owner, owing to a fiduciary relationship b/w them

      3. Ex: corporate employee lawfully possesses corporate property

What is the mens rea for Embezzlement? Examples?

1. Intent to do the underlying act

2. Intent to defraud the owner

   1. D must intend to defraud the owner of the property/deprive the owner of the property

   2. Mistaken claim of right or intent to return → negates specific intent of “fraudulent”

   3. Example

      1. If D intends to return similar property or the cash equivalent of the value of the property → D has fraudulent intent

      2. If D intends to return the exact same property that is converted & has the ability to → D does NOT have fraudulent intent

What are the elements of False Pretenses?

1. Elements

   1. D knowingly or recklessly makes a false representation of a material present or past fact

      1. Misrepresentation

         1. Explicit verbal misrepresentation OR

         2. Reckless disregard as to truth or falsity as well as knowledge or belief of falsity will suffice.

         3. Concealment (D takes affirmative acts to conceal a material fact)

         4. Reinforcing false impressions (reinforce a false impression held by another)

         5. Fiduciary relationship (normally has an affirmative duty to speak the truth, not free to remain silent)

         6. Silence normally not enough

      2. Of some existing fact in the past or present

         1. not a “mere promise as to the future,” such as the false promise to fulfill a contract

   2. with the intent to defraud the V

   3. which causes the deceived V to pass title

      1. Deceived/reliance

         1. Victim must actually be deceived, OR act in reliance on the misrepresentation, AND

      2. Passing of title

         1. Deceit or reliance must be a major factor, or sole cause of victim’s passing of title to the D

   4. of their property to the D

What is the mens rea for False Pretenses?

1. Knowingly or recklessly make a false representation

   1. D must have known the statement to be false

      1. Reckless disregard as to truth or falsity as well as knowledge or belief of falsity will suffice.

   2. Reckless → D makes a statement knowing that he has no information one way or the other on the matter

   3. Most states

      1. will find D knew of the falsity of any statements when, after being put on notice of the high probability of the statement's falsity, he deliberately avoided learning the truth (willful blindness)

2. Intent to defraud

   1. D must have intended to defraud the victim at the time they made their false statement/representation

What are the elements of Robbery (aggravated larceny)?

1. Larceny + 

2. Property must be taken from the owner’s presence

   1. Property must be taken from the presence or person of its owner

   2. Most courts = close enough that the victim could have prevented the taking but for the robber’s use of force or intimidation

3. By force or intimidation

   1. Force

      1. physical action needed to overcome victim’s resistance (slight force is enough)

         1. most jurisdictions → sudden snatching not sufficient if victim has no time to resist

      2. use of force to retain property immediately after taking satisfies force element

   2. Intimidation

      1. intimidation caused victim to apprehend (understanding, not fear) imminent bodily injury or death to victim, close family member, other person present

What are the common law elements of Burglary?

1. Breaking and entering (actus reus)

   1. At common law

      1. Opening must be created by D, where D has no consent to enter

      2. Force used may be light, such as opening an unlocked door or window

      3. No violence or physical damage required

   2. Consent to enter was a defense

      1. Unless obtained by fraud or threat

      2. Constructive breaking - occurs if burglar gains entry by fraud or threats

2. of the dwelling of another

   1. Now, does not have to be a dwelling

   2. Nearly all states require that it be a building or a vehicle 

3. at night

   1. Now, no state maintains this requirement

4. with intent to commit a felony therein (S.I.)

   1. Now, felony no longer required

What are the modern elements of Burglary?

1. Unlawful entry

   1. Satisfied when any part of body or object used by D to gain entry crosses into structure

   2. Even for a moment

2. Of a building or other structure

   1. Includes almost any structure even if not a dwelling

      1. Nearly all states require that it be a building or a vehicle

   2. Break/enter will not be satisfied if D is entering into their own home

3. With the intent to commit any crime therein

   1. All states required D have an intent to commit at least a misdemeanor

   2. Specific intent of burglary

      1. Where defendant does not have intent to commit a felony therein

      2. mens rea for burglary will not be satisfied

      3. defendant may still be guilty of trespassing

4. (Anytime, anyplace. Wherever, whenever)

What are the different types of possession? Examples?

1. Actual Possession

   1. Physical control of the property to use it in a reasonably unrestricted manner

2. Constructive Possession

   1. Not in physical control, but

   2. Retains the power to exercise dominion or control over it

3. Examples

   1. Principal/Employer delivers property to agent/employee to use, keep, or deliver somewhere

      1. Principal/employer → constructive possession

   2. Owner of property loses it or misplaces it and someone else finds it

      1. Owner → Constructive possession

   3. Owner delivers property to another person as part of a transaction to be completed in the owner’s presence

      1. Owner → Constructive possession

What is custody? Examples?

1. Elements

   1. Person has physical custody of the property, but

   2. Access to and/or use of property is substantially restricted by the person in constructive possession

2. Examples

   1. someone is given temporary and extremely limited use of the property;

   2. an employee is given property by the employer for use in the employment

   3. someone acts as a bailee of property that is enclosed in some sort of container, in which case the bailee is deemed to possess the container but merely be a custodian as to its contents.

What is the Doctrine of Continuing Trespass?

1. Trespassory nature continues as long as D has the property

2. Every moment that D retains possession of another’s property constitutes a new trespassory taking

3. Continues until D terminates possession of the property

What is the process of analysis for theft crimes?

1. Determine which of the common law theft crimes it may be before analyzing the sub-rules

2. Did the Victim intend to give TITLE?

   1. Yes → TITLE → false pretenses

   2. No → just CUSTODY/POSSESSION → larceny or embezzlement

3. Did D come into the property lawfully (by consent)?

   1. Yes, entrusted with possession → embezzlement

   2. Consent obtained by deceit → larceny by trick

   3. Yes, had consent for temporary custody → larceny

   4. No → larceny

4. After determining which of the major offenses it could be, apply the facts and analyze each element

Generally, what are the limitations to the Felony Murder Rule?

1. Merger Doctrine

2. Inherently Dangerous Felony

3. Res Gestae

4. Agency Rule

What is the Merger Doctrine?

For Felony Murder, the predicate felony must not be one involving personal injury, and must have a purpose other than inflicting harm

Unless predicate felony is otherwise enumerated by statute

What is an Inherently Dangerous Felony?

For FMR:
One that, by its very nature, entails a high risk of grievous bodily injury or death

1. BARRK

2. Hines approach (GA): Question of law, dangerous in the abstract. Looks at how the felony is perpetrated generally

3. James approach (CA): Question of fact, asks if felony was dangerous as perpetrated. Did D commit it in a way that endangered life?

What is the res gestae requirement?

1. General rule

   1. To apply Felony murder rule, there must be relatively close proximity in time and distance between the felony and the homicide

2. Res gestae period starts

   1. When the D has reached the point where they could be prosecuted for an attempt to commit the felony

3. Res gestae period ends

   1. Doesn’t end the moment all the statutory elements of the crime are complete

   2. Continues when felon flees the scene

   3. Stops when felon reaches a place of temporary safety

4. Focus is on killing conduct

   1. When the killing conduct occurred and not when the death itself occurred

5. Stamp Rule

   1. FMR applies even where death is unforeseeable

6. King Rule

   1. For FMR to apply, killing must be done by D or an accomplice acting in furtherance of the underlying felony

What is the Agency Rule for FMR?

1. Majority

   1. Person is responsible only for his own actions or those who are acting with him in the felony and who thus are his agents

   2. Co-felon can be charged with felony murder, even if they did not do the killing or were unaware of the killing

2. Minority

   1. Liability for bystander’s death may attach to the felon b/c the death is a direct consequence of the felony

What are the defenses to FMR?

1. Valid defense to underlying felony

2. Death occurred after commission of the felony and the ensuing flight from scene of crime

3. Death was not caused by an act made in furtherance of the felony

4. Felony was not distinct from or independent of the killing itself (merger rule)

Two types of Affirmative Defenses. Which are included in each?

1. Justification

   1. Focuses on correctness/justness of the action

      1. Act is illegal, but

      2. D claims they did the right thing or took the most appropriate action under the circumstances

   2. Early common law AND modern = complete acquittal

   3. D justified = accomplices acquitted

   4. Defenses

      1. Self-Defense

      2. Defense of Others

      3. Defense of Habitation

      4. Defense of Property

      5. Necessity

2. Excuse

   1. Focuses on the individual D

      1. D’s conduct is wrongful, but

      2. D claims they are not blameworthy

      3. Asks to be excused/not punished b/c of their personal state/condition

   2. Early common law = only helped D escape the death penalty

   3. Modern = complete acquittal

   4. D acquitted based on excuse does not mean accomplices are acquitted

   5. Defenses

      1. Duress

      2. Insanity

      3. Diminished Capacity

      4. Infancy

      5. Intoxication

         1. Both a case-in-chief defense and affirmative defense

Requirements for Self-Defense

1. Imminence

   1. D must have had honest and reasonable belief that they were threatened w/ an imminent threat of unlawful force

      1. Honesty is decided by jury and looks at the motive and D’s behavior

      2. Reasonable is whether a RP would have feared threat of death/SBI

2. Necessity

   1. The force D used was necessary to repel the threat

3. Proportionality

   1. The force D used was proportionate to the threatened force

   2. Deadly Force

      1. Permitted only in response to an imminent threat of death or great bodily injury

      2. Not available to first aggressor (unclean hands)

         1. Common Law: regain right of selfdefense restored by complete withdrawal

         2. Modern: right of self defense restored if victim responds with excessive force

4. Clean Hands

   1. D was not the aggressor (one who started it)

   2. Aggressors

      1. No privilege to use deadly force if voluntarily leaves the scene but then returns to continue the conflict

Defense of Habitation

1. Early Common Law

   1. Deadly force justified where dweller reasonably believed it was necessary to prevent an imminent and unlawful entry into their dwelling.

2. Alternative Approaches

   1. Where dweller reasonably believes intruder 

      1. Intends to injure dweller/occupants 

      2. Intends to commit a felony therein; 

      3. Intends to commit a forcible felony therein (murder, robbery, burglary, rape, or arson)

   2. Some Jxs create a presumption

      1. That homeowner’s belief was in need to use deadly force to protect against imminent threat of death or SBI was reasonable

      2. Four elements under Brown:

         1. There must be unlawful and forcible entry 

         2. By a person not a member of the family or the household 

         3. The residential occupant uses deadly force against the victim within the residence; 

         4. The residential occupant has knowledge of the unlawful and forcible entry. 

3. Castle Doctrine (again)

   1. Can use deadly force to prevent an intruder from unlawfully entering into one’s “castle” 

   2. Purpose is to safeguard dweller’s bodily security and privacy in his home; dispossession of the home or its contents need not be implicated.

Defense of Property

1. Cannot use deadly force 

2. Use of non-deadly force to 

   1. prevent another person from dispossessing them of real or personal property, or in order 

   2. regain possession of the property immediately after dispossession. 

   3. So long as D reasonably believes that property is in immediate danger

   4. Unless you could have just used words

3. Stolen property?

   1. Only in hot pursuit

      1. reasonable non-deadly force allowed only if acting immediately

      2.  IF TAKING/INTERFERENCE IS COMPLETED 

         1. use force to recover the property not allowed

   2. If thief uses deadly force, then DoP transforms to defense of human life - > self-defense principles apply

   3. Thief doesn’t use deadly force -> property owner uses deadly force -> thief can use deadly force in self-defense -> property owner exceeded legal privilege of force

Necessity Defense

1. Breaking the law to avoid natural, significant harm

2. Elements

   1. Threat of 

      1. From situational or natural forces, NOT a person

   2. Imminent injury to the person or property

      1. Does not to be threat of SBI/death

   3. For which there are no reasonable alternatives except commission of a crime

   4. D’s acts must prevent equal/more serious harm

   5. D didn’t create conditions of own dilemma (clean hands)

3. Exceptions

   1. Common law = no necessity defense for homicide crimes

   2. Economic necessity alone does not justify the commission of criminal acts. 

   3. Courts have routinely rejected necessity claims in defense of unlawful conduct done in the spirit of protest

Duress defense

1. Doing something illegal b/c someone threatened you with harm if you didn’t

2. Elements

   1. Well-founded fear, generated by 

      1. D’s fear has to be reasonable

      2. • Unreasonably believed → no duress

      3. • threat is not well-grounded & fear is unreasonable

   2. a threat from a human being of 

   3. imminent 

      1. Present, imminent & impending

   4. serious bodily harm or death 

      1. Expressly or impliedly

   5. to the D himself (or sometimes to a near relative) 

   6. D had reasonable escape but for compliance with demands 

   7. and to which the D did not expose himself to threat

Insanity Defense

1. M’Naghten Test

   1. Elements

      1. Underlying medical condition (“disease of the mind”)

      2. Condition caused impact on mental processes & understanding (“defect of reason”), AND

      3. D must prove that either

         1. D did not understand what they were doing at the time of the criminal act (“nature and quality of the act”), OR

         2. if they were aware of what they were physically doing, they did not realize that the act was prohibited (“doing what was wrong”)

2. Durham Test

   1. Elements

      1. D has mental disease or defect

      2. Criminal conduct is caused by the mental disease/defect

   2. Only used in New Hampshire

3. Irresistible Impulse Test

   1. Elements

      1. As a result of severe mental disease or defect

      2. D is unable to control the impulse to commit the unlawful act/crime

      3. D thus commits the unlawful act as a result

   2. Freeman court says this test is too narrow

   3. Rejected by most states and the federal government

Diminished Capacity Defense

1. Mens Rea Variant

   1. D suffers from mental disease/defect not amounting to insanity at the time crime was committed and thus lacked the mental state required

2. Partial Responsibility Variant

   1. D argues they are less guilty because of a mental disease/defect not amounting to insanity and should be charged with lesser offense

   2. Not followed by CA

Key terms in Accomplice Liability

1. Principal I (PI)

   1. Person who committed target crime

2. Accomplices

   1. Individuals who help PI commit a crime by rendering physical or psychological aid

      1. Physical Aid

         1. D can physically help another person commit a crime 

      2. Psychological Aid

         1. D can encourage or reinforce the primary actor’s decision to commit a crime. 

   2. Accessory Before the Fact

      1. Renders assistance to or encourages P1 to commit crime

      2. Not present at or near the crime scene

   3. Principal II

      1. Renders assistance to P1 to commit crime

      2. Is at or near the crime scene

   4. Accessory After the Fact

      1. Helps P1, P2, or ABTF after target crime

What can an accomplice be liable for?

1. The crime he purposefully facilitated, AND

2. all other crimes committed by the principal that are

   1. reasonably foreseeable outgrowths of the primary crime

      1. foreseeability is an objective test

      2. no defense where accomplice did not expect P1 to commit the secondary offense

Causation for Accomplices

1. Accomplice may be found guilty as an accomplice even though his actions do not satisfy “but for” causation 

2. Accomplice liability looks beyond the last responsible human agent and makes others also responsible for P’s criminal act

Conviction for Accomplices

1. No conviction of accomplices unless P1= guilty 

2. The prosecution also proves that the principal is guilty of the crime in question

Actus Reus of Accomplice Liability

1. Act/omission that facilitates the principal’s attempted commission/commission of the crime 

2. Trivial assistance/encouragement is enough 

3. Presence alone won’t satisfy unless the defendant had a legal duty to assist the victim.  (Pace)

Mens Rea for Accomplice Liability

1. Intent to render assistance 

2. Intent that P commit target crime 

   1. Some courts 

      1. If D helps P knowing P is intending to commit a crime, knowledge is sufficient for accomplice liability (especially if the target crime is very serious)

How does faking it affect accomplice liability?

1. If A feigns criminal intent in order to assist P

   1. A may not have mens rea #2

2. If P feigns criminal intent and A assists

   1. If P is not liable, A is not liable

      1. even if A had AR + MR1 + MR2

Defenses to Accomplice Liability

1. Case in chief defenses

   1. Lacks mens rea for target offense

   2. P was justified -> no crime committed

2. Abandonment/Withdrawal of Aid

   1. A must inform P not to commit the offense (communication), AND

   2. Do everything possible to render ineffective any aid they have already given (efforts to neutralize) ‘

      1. If A encouraged P to commit the crime → they must try to discourage P 

      2. If A had provided physical assistance of some sort → they must try to render it useless

Actus Reus for Conspiracy

1. Agreement to commit target crime (Pacheco) 

   1. Agreement can exist even if not all parties know every detail of arrangement, as long as each party is aware of its essential nature 

   2. Sufficient if each co-conspirator agrees to commit/facilitate some of acts leading to the target offense 

   3. Doesn’t have to be in writing

2. Overt act in furtherance of conspiracy (early CL did not require his, MPC does not require for certain felonies)

Mens Rea for Conspiracy

1. Intent to agree 

2. Specific intent to commit target crime (Swain)

Approaches/rules for number of people involved in a Conspiracy

1. Bilateral approach under CL

   1. meeting of minds required, so at least 2 people must agree 

   2. C2 can’t be convicted if C1 is not also convicted (feigning co-conspirator invalidates conspiracy) 

2. Middle ground (Pacheco)

   1. requires 2 people agreeing, C2 not absolved just b/c C1 not convicted 

3. Wharton’s Rule

   1. Crimes requiring 2 people can’t be basis for conspiracy charge, except if 3rd party is involved

Liability for other crimes as part of Conspiracy

1. Pinkerton Rule 

   1. Co-consp. liable for unintended but reasonably foreseeable crimes that are a natural consequence of the conspiracy (objective standard for reasonableness is used) 

   2. CL only, rejected by MPC

2. Non-retroactive

   1. IF D joins a conspiracy after it’s started, D is not responsible for reasonably foreseeable crimes already committed by other members of the conspiracy before he joined

What is a Conspirator liable for?

1. Conspirator is liable for the separate offense of conspiracy, AND

2. Any crime committed by another in furtherance of the conspiracy, including: 

   1. target crime, AND 

   2. crimes not one not part of the original plan, as long as the crime is 

      1. w/in the scope of the conspiracy, and 

      2. a reasonably foreseeable consequence of the agreement

Defenses to Conspiracy

1. Case in chief defenses

   1. No bilateral agreement

   2. No intent that target crime be committed

2. Abandonment

   1. CL may not recognize, but if it does

      1. D must completely and voluntarily renounce his criminal intent, and 

      2. D must actually thwart the conspiracy.

3. Impossibility

   1. MPC rejects, as do most CL Jxs

   2. In most Jx, as long as the defendants have agreed to commit a crime and made some act toward doing so, they can be criminally liable for conspiracy

      1. A conspiracy does not automatically end when the object of the conspiracy becomes impossible to achieve

Generally, available CL and MPC tests for the Actus Reus of an Attempt?

1. Last Act Test

2. Proximity Tests

3. Unequivocality/Res Ipsa Loquitur Test

4. Probable Desistance Test

5. MPC: Substantial Step Test

Last Act Test for Attempts

1. Requires that the D perform the very last act needed before the target crime is completed, and whether he succeeds is now out of his control.

2. Very favorable to D, maximum opportunity to change mind

3. Unlikely any Jx would follow this test today

Proximity Test(s) for Attempts

1. In light of the seriousness of the offense and the scope of possible harm, did the D come close in time and space to completing the offense? 

2. Physical Proximity Test:

   1. Act must be close to completed crime in both time & distance 

   2. w/in the D’s power to complete the crime almost immediately 

3. Dangerous Proximity Test:

   1. D must have been dangerously close to completion of crime 

   2. Considers time, distance, gravity of the crime, & probability of completion 

4. Indispensable Element Test:

   1. D must have acquired all elements needed to complete crime

Unequivocality/Res Ipsa Loquitur Test for Attempts

1. Would reasonable people, observing only the D’s conduct, necessarily conclude that he was trying to commit a crime?

2. Favorable to D

   1. Prosecutor may not use any other evidence (i.e. confession, diary, or other statements) to demonstrate that the actor committing a crime

Probable Desistance Test for Attempts

Asks whether the D has reached a point that it is unlikely that they would have voluntarily desisted from completing the crime if another person or event would not have prevented it.

MPC Substantial Step Test for Attempts

1. A person is guilty of an attempt to commit a crime if . . . he purposely does or omits to do anything which . . . constitute[s] a substantial step in a course of conduct planned to culminate in his commission of the crime.

2. A “substantial step” must be “strongly corroborative of the actor’s criminal purpose.” 

   1. Examples

      1. Searching for victim

      2. Scoping out crime scene

      3. Possession tools necessary for the crime to the crime scene

      4. Soliciting an innocent party to perform an element of the crime

Mens Rea for Attempts

1. Intent to do the acts that constitute the actus reus of an attempt

2. Intent to commit the target crime

   1. Under the circumstances required by the crime attempted

   2. If results crime (murder), they MUST intend to the result (murder = intent to kill)

      1. Intent for SBI is not enough. Depraved heart is not enough!

   3. If conduct crime, D must intend the prohibited conduct

Generally, defenses for Attempts

1. Abandonment

2. Impossibility

Abandonment Defense for Attempts

1. Jx split

   1. Common law

      1. Does not allow 

      2. Once D crossed the line dividing preparation from implementation and had committed an attempt, he could not go back

   2. Some states

      1. Allow a D to prove though he actually committed an attempt, he subsequently abandoned his criminal purpose 

      2. Only available if D changed mind through genuine remorse and not b/c of the risk of arrest or difficulty of success in completion 

      3. Must be established by a preponderance of the evidence 

   3. MPC: Renunciation

      1. A voluntary and complete abandonment can be a defense 

Generally, types of Impossibility for a Defense to Attempts

1. Pure Legal Impossibility

2. Hybrid Legal Impossibility

3. Factual Impossibility

4. Inherent Factual Impossibility

Common Law and MPC Assessment of Impossibility Defense to Attempts

1. Pure Legal Impossibility

   1. D’s intended act isn’t criminal. 

   2. Pure legal impossibility was a defense at common law 

   3. Still is a defense today even in jurisdictions which have abolished the defense of impossibility! 

   4. You simply can’t be criminally liable for attempting to commit a nonexistent crime.

2. Hybrid Legal Impossibility

   1. Mistake of legal status of something

   2. D’s goal is illegal, but D can’t commit his crime due to a mistake of fact regarding the legal status of some factor relevant to the offense 

      1. i.e. the legal status of a) goods as stolen, b) of a person as a juror, c) of the deer as dead or alive 

   3. CL → hybrid legal impossibility was a defense to the crime of attempt

3. Factual Impossibility

   1. D is mistaken about a fact that made it impossible for them to commit the target offense.

      1. If the facts had been as D believed → D would have committed his targeted offense.

   2. CL → factual impossibility was NOT a defense → D guilty of attempt

4. Inherent Factual Impossibility

   1. With the intent to commit a crime, D chooses a means of accomplishing his goal that is virtually certain to fail. 

      1. Ex. D wants to kill his mother, so he pokes a tiny pin into her arm believing he can kill her this way. 

   2. CL → Inherent factual impossibility IS a defense to a charge of attempt.