Introduction and basic concepts



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XIII.Corporate Liability





    1. Theory: can do more than merely create stigma, courts can order community service or even order a restructuring or monitoring of the company. Finally, a court could dissolve the corporation (corporate death sentence). NOTE: US and Britain are only countries with this system

      1. Justifications:

        1. Deterrence: punishing shareholders could force better policing of the corporate officers

        2. Stigma: only criminal law provides certain stigma

        3. Punishing individuals may not provide effective deterrence – corporate “fall guys.”

      2. Criticisms:

        1. Can’t really punish a corporation, really the courts are punishing the stockholders and employees (who may get laid off). Vicarious liabililty?

        2. Over-deterrence

        3. Divert attention away from the guilty actors: corporate agents

      3. respondea superior: (standard from torts) the superiors in a corporation are responsible for the acts of their agents.

        1. Corporation is liable for conduct of agents within the scope of their employment even if contrary to actual instructions or stated policies

        2. Corporate policies defense, will allow straw-man policies




    1. MPC §2.07

      1. (1) corporation may be convicted if:

        1. (a) Offense is a violation or defined by statute w/ stated purpose to punish corporations, conduct is performed by agent acting w/in scope of his office; or

        2. (b) Omission to discharge legal duty of affirmative performance

        3. (c) Commission was authorized, requested, commanded, performed or recklessly tolerated by management.

      2. (2) Absolute liability offenses are assumed to apply to corporations unless otherwise stated

      3. (3) unincorporated assocation can be convicted if: (a) statue expressly proiveds for liability; or (b) failure to perform duty

      4. (4) (a) excludes municipal corporations and gov’t agencies

      5. (5) defense of due dillegence by manager maybe proved by preponderance of the evidence.

      6. (6) People are also liable as individuals for conduct (or omissions) performed in name of corporation.




    1. Cases

      1. New York Central RR: RR corp. held liable for giving rebates to sugar company in violation of federal law. Established principel the corporation can be criminally liable for acts of employees.

      2. U.S. v. Hilton Hotels: Corporation held liable for violation of Sherman Act (boycotting suppliers as party of an association), despite official corporate policy against doing so.

      3. Enron Case: example of the corporate death penalty

      4. Gordon v. U.S.: partners of a corporation held liable for employees selling sewing machines w/ down payments. Court held that partners had “constructive” knowledge, and a duty to monitor employees. Supreme Court overturned conviction for reasons similar to dissent: standard of knowledge could be applied to corporation but not to individuals running the corp.

      5. US v. Park: CEO of a supermarket company held liable for rodents in the warehouses. The Supreme Court said due diligence isn’t enough, the must be powerless to stop the illegal acts to avoid liability (strict liability). The Court said the law (FDCA) imposes an affirmative duty. Responsible corporate officer can be held criminally liable w/o proof of wrongful action.

      6. U.S. v.Campbell: Money laundering conviction of a real estate agent based on willful blindness.



XIV.Conspiracy





    1. Theory:

      1. Definition: an agreement amongs a group of people to commit a criminal act. The actus reus is the overt act of furthering an agreement.

      2. Incohate offense: gets a group of people before they even make an attempt.

      3. Conspiracy is a crime that applies throughout the criminal law

        1. goes across the entire range of substance crimes

        2. Creates a new form of liability

        3. Provides a trigger for liability (like attempt)

        4. Extends the reach of vicarious liability (extends accomplice liability rules)

      4. Conspiracy vs. Attempt - conspiracy differs from attempt in that it merely requires an agreement, not a substantial step towards completion (may trigger criminal responsibility at an early point in time). Reasons to act earlier

        1. Attempt puts a greater emphasis on people’s right to flirt with crime, but there is also possibility that people will re-think, that an action that appears dangerous will end up being innocent.

        2. Conspiracy has a greater potential danger: When multiple people are involved, they are more likely to follow through.

        3. Likelihood that they will commit other crimes. Potentially dangerous doctrine  points us in the direction of taking state control because of the prediction of future dangerousness.

        4. Conspiracy seems similar to solicitation, except that in the latter, one party is attempting to get another to go along with him.

      5. Conspiracy as a criminal offense: in many jurisdictions (including federal law), conspiracy charge doesn’t disappear once the offense is committed.

        1. double jeopardy concerns

        2. empirical assumption about group offenders – ongoing criminal groups: gang members, organized crime, professional criminals

        3. MPC §1.07(1)(b) says one can’t be punished for both conspiracy and completed offense

      6. Usefulness of conspiracy: Widens the net of criminal law

        1. “Prosecutors’ darling” – can always throw in a conspiracy charge

        2. Easier to prove in many cases (can bring in people you can’t prove are accomplices

        3. Pinkerton rule – allows one to be held liable for reasonably foreseeable acts of co-conspirators (NOT the case under MPC)

        4. Prosecutors can try multiple offenses together

      7. Criitcisms of conspiracy

        1. vague

        2. mental crime

        3. aggravates degree of crime (conspiracy is a felony, some crimes are misdemeanors by themselves)

        4. Inculpates people on the fringe

        5. multiplies venue options

        6. permissive joinder – co-conspirators are tried together. This can link lowly minor players to kingpins. There are often prejudicial effects.

        7. extends statute of limitations

        8. Hearsay rule is circular – hearsay is allowed as evidence of conspiracy if judge rules that there is enough evidence to establish possibility of conspiracy. (judge is already saying there is a conspiracy when he admits the evidence)




    1. MPC § 5.03

      1. (1) definition – w/ purpose of rpomotion ofr facilitating commission of a crime (a) agrees to engage in criminal conduct with others; or (b) agrees to aid others in planning or commission, or attempt or solicitation to commit crime

      2. (2) Scope – If actor knows that partner has conspired of others, actor is also guilty of conspiring with them, even w/o knowing their identities [wheel conspiracy]

      3. (3) Conspiracy w/ multiple Objectives – Only one conspiracy, so long as multiple crimes are object of same agreement of continuous relationship.

      4. (4) Joinder and Venue – (a) may prosecute 2 people together if (i) charged w/ conspiring w/ one antoher; (ii) if conspiracies alleged (same or different parites) are different aspects of a scheme or organized criminal conduct [wheel conspiracy]

(b) limitations: (i) venue only place of agreement or where overt act was committed; (ii) liability can’t be enlarged by joinder; (iii) defendant has a right to request severance or special verdict

      1. (5) Overt Act: other than 1st or 2nd degree felony, there must ben an overt act in pursuance of conspiracy by one of the co-conspirators

      2. (6) Renunciation: affirmative defense that actor thwarted conspiracy, manifested complete and voluntary renunciation of criminal purpose.

      3. (7) Duration: (a) conspiracy terminates when object is committed, or abandoned; (b) abandonment is presumed if nobody does an overt act during applicable statute of limitations; (c) conspiracy is terminated as to individual when he informs co-conspirators, or informs law enforcements

      4. MPC § 5.04 – (1) still liable for conspiracy (a) if person does not have a particular characteristic that is an element of a crime as long as believes he does [allows for under cover agents to be in conspiracies]; and (b) still guilty if other person is irresponsible or has immunity. (2) It is a defense that if objective were achieved, actor would not be guilty of a crime under law defining the offense or as an occomplice.




    1. Cases:

      1. Krulewitch v. United States: prostitute tells another not to tell authorities about ’s guilt, and gov’t seeks to admit this as evidence under hearsay rule. Holding states that hearsay evidence of an alleged cover-up conspiracy (separate conspiracy) is NOT admissible as evidence of existence of conspiracy. – Jackson’s concurrence has general criticism’s of conspiracy doctrine

      2. Bourjaily v. U.S.: Hearsay is admissible when judges feels there by a preponderance of evidence that defendant was a member of a conspiracy. This seems to be circular logic. [“Bootstrapping Point”]

      3. Pinkerton v. U.S.: Two brothers convicted of conspiracy not to pay liquor taxes (one is in prison at time of offense, but through conspiracy he is held liable for substantive offense. One is guilty of all subsequent crimes committed by all co-conspirators in the course of the conspiracy [Pinkerton Rule – not in MPC]. There is enormous potential for liability according to federal criminal law.

      4. State v. Bridges: got in a fight and recruited two accomplices to help him, one accomplice w/ gun killed a by-stander (plan was for to fight and friend to hold crowd at bay. was held liable for murder, because it was a foreseeable consequence of the conspiracy to go to the party armed and fight. NOTE: This is an expansion of Pinkerton forseeability doctrine. Broader liability than for accomplice liability wasn’t guilty originally as an accomplice because he didn’t have (1) purpose to commit murder, or (2) purpose to assist or aid.

      5. Interstate Circuit, Inc. v. US: movie theaters violating Sherman Anti-Trust Act. Each distributor got a letter (showing that copies were sent to 7 other distributors) and agreed with the theaters to over charge, but did not communicate with other distributors. The question here is whether conscious parallelism is sufficient for an agreement (conspiracy). This seems to water down the idea of conspiracy, there’s really no agreement needed at all with this.

      6. U.S. v. Alvarez: Conduct of a defendant can be used to infer gulty in a conspiracy. Alvarez convicted of conspiracy to import drugs: was loading drugs onto a plane and smiled and nodded when agent asked if he would be there to unload in the U.S.

      7. U.S. v. Freeman – “Cowboy shrimp boat case.” Crew members convicted of conspiracy by being on a boat w/ 43,000 lbs. of marijuana. Extreme quantity indicated they must have had knowledge.

      8. People v. Lauria: ran a phone answering that several prostitutes were using. He knew some were prostitutes but he did not make any extra money from them. He was not guilty because (i) he did not have stake in the venture, (ii) there were other legitimate uses for his service, and (iii) the volume of his business w/ protistutes was not grossly disproportionate. NOTE: prostitution was misdemeanor, but conspiracy was a felony.

      9. Kotteakos v. U.S.: found guilty of one conspiracy w/ many others who got illegal loans from Brown. Supreme court overturned conviction; said there was not one big conspiracy – it was a wheel conspiracy, but no rim. Trying everyone together was prejudicial.




    1. RICO: Federalizes state crimes, but the crimes still need a federal hook: any effect on interstate commerce (this is never a problem to meet)

      1. this is a criminal law statute run by the US attorneys

      2. civil aspect for victims to sue another for injuries resulting from RICO violations (even allows one corporation to sue another for fraud cases – i.e. mail fraud is a RICO violation)

      3. US can also sue civilly to get an injunction restraining activity to prevent further violations (used very effectively, especially for labor racketeering): (1) there is a different burden of proof and this is an advantage in civil cases, (2) discovery is an advantage that exists in civil, but not criminal.

      4. What does RICO add to traditional conspiracy law? In what ways was it expansive?

        1. Increases vulnerability in terms of punishment (20 years under RICO and double counting for violating RICO and conspiring to violate RICO vs. five under conspiracy)

        2. Mandatory forfeiture of all profits of crime

        3. Joinder of different people and activities

        4. RICO also builds on the Pinkerton rule of accomplice liability, allowing people who wouldn’t usually be thought of as co-conspirators to be tried together.

      5. The statutes:

        1. §1961 “pattern of racketeering activity” requires at least two acts of racketeering activity.

        2. §1962(a) criminals can’t use money from crime to go legitimate. response to Congress’s concern that organized crime was infiltrating legitimate businesses through investment.

        3. §1962(b) stop criminals from muscling their way in to a business without a monetary investment, extortion and take over through racketeering. “collection of unlawful debt” covers gambling offenses

        4. §1962(c): using legitimate business for racketeering activity; als used to go after pure gangs, entities in fact. This section used the most.

        5. 1962 (d): unlawful to conspire to violate 1962(a), (b), (c)

      6. RICO lets gov’t prosecute legitimate business as well as gov’t officials

      7. The Supreme Court ruled that an enterprise can be exclusively criminal, thus you can actually get all criminals, creates the crime of being a criminal (this is where RICO really gives prosecutors power).

        1. not an agreement to commit crimes, but an agreement to participate in an enterprise involved in crime.

        2. An enterprise however isn’t just a group in agreement (conspiracy) it’s more permanent with its own personality.

      8. U.S. v. Elliot: RICO allows prosecutor to charge, in a single count, what might constitute multiple smaller conspiracies. Elliot and five others were tried w/ consipiring to violate 1962(c) of RICO. J.C. Hawkins was linked to all crimes, although at not time did more than three of them conspire together to commit any act.


Part III: Exculpation


  1. General:

    1. Shift from plaintiff to ’s case.

    2. Affirmative defenses:  must raise these himself. Some have to be proven through preponderance of evidence. In other cases, prosecution must prove beyond a reasonable doubt that defense is invalid.

    3. Excuses v. Justifications

      1. Justification: Act was correct in and of itself (e.g. self-defnese, public duty)

      2. Excuse: Act was wrong in general, but there was a good reason for doing it, e.g. entrapment, infancy, insanity




  1. Self Defense

    1. Theory: Self-defense is seen as a basic right in our society, and in some ways a moral imperative

      1. Often limited by (1) imminence of danger, (2) necessity, and (3) proportionality

      2. The alternative to self defense is defense by the state.

      3. Is limiting weapons (gun control) limiting self-defense

      4. Domestic abuse and battered women’s syndrome

      5. Subjective vs. Objective standards in judging necessity:

Is it the actual seriousness of the threat, or the perceived seriousness?

      1. Perfect vs. Imperfect Self defense: Perfect means that self- defense was justified. Imperfect means that truly believed he needed to use force, but the belief was not reasonable.

      2. Self defense is often used as a defense to put the victim on trial.




    1. MPC § 3.04 Use of Force in Self-protection

      1. (1) justifiable when actor believes force is “immediately necessary” for the purpose of protecting himself from unlawful force “on the present occasion”

      2. (2) limitations:

        1. (a) not justifiable to (i) to resist arrest, or (ii) to resist occupation or repossession of property by rightful owner (if actor knows person has right) ( (ii) does not apply if: (1) actor using force in self defense is a public officer or, (2) actor has been unlawfully dispossessed, or (3) actor believes force is necessary to protect self against death or “serious bodily harm”)

        2. (b) used of deadly force only to prefent death, serious boidly harm kidnapping, or rape. NOT allowable if

          1. (i) actor w/ purpose of causing death or serious bodily harm, provoked use of force

          2. (ii) actor knows he can avoid using force w/ complete safety by retreating or surrendering possession, except that (1) actor is not obliged to retreat from dwelling or place of work unless he was original aggressor; and (2) a public officer making an arrest or preventing an escape is not obligated to desist from such duties because of resistance or threatened resistance

        3. (c) A person using protective force may estimate necessity thereof under circumstances as he believes them to be w/o retreating surrendering possession, or doing any other act which he has no loegal duty to do

      3. (3) Use of confinement is OK as long as actor takes all reasonably measures to terminate confinement as soon as he knows he safely can.




    1. MPC § 3.09

      1. (1) justification is unavailable when there is a mistake of law:

        1. actor’s belief in the unlawfulness of force is erroneous and

        2. error is due to ignorance or mistake as to the provision of the code.

      2. (2) mistake of fact – reckless or negligent in acquiring or failing to acquire knowledge or belief which is material.

      3. (3) Reckless or negligent injury of third parties is not excused – must be precise; prosecution can say you were negligent in employing self defense.

      4. Comment:

        1. MPC uses an objective theory, but it is not fully objective, based on the ’s subjective beliefs. However these subjective beliefs must be reasonable as another would see them.

        2. Liability is based on ’s mental state (recklessness or negligence), but there is an objective standard to these

    2. Cases

      1. People v. Goetz: Highly-politicized case. Goetz shot four people on a subway car after one asked him for $5. He had been mugged several times before and was carrying an illegal gun. The defendants were not armed, and Goetz shot Cabey a second time after saying “You don’t’ look so bad.” Racial Issue: He felt threatened by the black youths asking for money. Goetz argued for a subjective standard, but the court refused and enforced NY’s more objective standard

        1. Subjective:  honestly believed he needed to use deadly force. difficult for the prosecution to disprove beyond a reasonable doubt.

        2. Objective standard: reasonable person would believe he needed to use deadly force in the same situation. situational requirement leaves a lot of room for  to bring in subjective elements.

Goetz later acquitted by a jury.


    1. Batterd Women’s Syndrome Cases:

      1. BWS is a psychological syndrome from which a woman suffers. It is caused by a pattern of abuse and reconciliation. It is used to explain why women are afraid, why they don’t leave, why they are afraid the man will attack again, and why they don’t think they can go for help.

      2. Admission of expert testimony is controversial. It puts the victim on trial. There is no coherent theory, and there is question as to what constitutes a “pattern of abuse.”  will claim that it is prejudicial, while Prosecution will say it provides context

      3. BWS could be seen as an excuse in some cases (pre-meditated spousal murder), in which a subjective standard can be employed (or modified objective – no person would remain “reasonable” in such a pattern of abuse).

      4. State v. Kelly: Woman murders her husband with a pair of scissors from her purse. He attacked her the first time, threw her to the ground and choked her; she stabbed him when he came at her. The prosecution claimed that she provoked him and chased him. Real significance is the admissibility of expert testimony on BWS to prove imminent risk of injury. (NOTE: BWS testimony is not relevant to prove that woman’s belief in risk of injury was objectively reasonable)

      5. State v. Norman: Woman shoots husband in his sleep (she fixed the jammed gun and shot him multiple times. She had been severely abused and tried suicide in the past. Women who are not in immediate danger cannot claim self-defense. There is also a policy argument that such justification would allow people to kill based merely on subjective pereidction of indefinite future assaults and circumstances.

      6. See later cases for BWS and insanity cases.




    1. Defense of Property

      1. MPC §3.06

        1. (3)(a) request to desist must be made unless actor believes that (i) request would be useless, (ii) would b dangers to himself or other to make request, or (iii) substantial harm would be done to property before request can effectively made.

        2. disposses actor, (ii) person is attempting to commit arson, burglary, robbery, or other feloinious theft and eithee: (1) has emplyed or thereatened dealy force, or (2) use of force other than deadly would expose actor or another in presence ot substantial danger of serious boidily harm

        3. (5) use of device justified only if: (a) not designed or known to create substantial risk of death or serious bodily injury; and (b) reasonable under circumstances as actor believes them to be; and (c) device is one customarily used, or reasonable care is taken to make known that it is being used.

      2. Tony Martin Case – man in UK shot two intruders and killed one. Both burglars had long criminal histories. Charged w/ murder (mandatory life sentence). Charge was reduced to manslaughter w/ parole if he showed remorse.

      3. People v. Ceballos – lived above garage and sometimes slept there, set up a booby trap after having been subject to burglary in home and attempted break –ins of garage. One boy w/ crowbar was shot in the face when trying to enter. claimed that he would have been justified using some force if he had been there. Court upheld conviction.




    1. Defending a Third Party:

      1. MPC § 3.05 (1) use of force is justified when (a) actor would be justified in using force to protect himself against he believfes to be threatened to other, (b) person whom he seeks to protect would be jusitifed in using such protective force (if circumstances were as actor believed themt o be, and (c) actor believes intervetinon is necessary to protect third person


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