Recklessness Law Essay Questions
To: Interested Students
From: Professor Claire Finkelstein
Date: April 28, 1997
Re: Good Student Answer to Fall '96 Exam
Attached you will find one of the better student answers to the issue-spotting question (doctored somewhat by me) on my fall 1996 exam. I distribute the answer, not because it is perfect in every way (it is not), but only as a rough base of comparison with your own answer.
I have placed the blue books on reserve at the message center, with the thought that it might be useful to you to review as you prepare for your spring exams. There are also copies of the exam question on reserve.
RR's Liability for Murder:
RR could be liable for the murder of the cabbie, Sam Society (SS) and Fred Felony (FF) under an accomplice liability theory. Under MPC 2.06 (3)(a)(i), a person is an accomplice in the commission of an offense if, "with the purpose of promoting or facilitating, he solicits such other person to commit it." Here, RR hired FF to kidnap her husband. Under the MPC, the actus reus of accomplice liability is aiding/encouraging/contributing to the crime of the principal's act. RR paid FF $50,000 to kidnap SS, and thus clearly satisfies the actus reus requirement. The mens rea under accomplice liability is purpose to aid or abet, etc. For result offenses, however, if an accomplice acts with recklessness or negligence with respect to the result, he will have the required culpability for the offense as an accomplice.
Here, RR told FF that she "expected no rough stuff." This arguably shows that RR didn't have purpose (intent) with respect to the killings, since she did not have the desire that FF kill anyone. Nor does it seem likely she had knowledge of the killings, since her warning suggests she at least had a hope that FF would not harm anyone. But MPC 210.2(1)(b) also provides that criminal homicide constitutes murder when it is committed "recklessly under circumstances manifesting extreme indifference to the value of human life." Such recklessness 'plus' is presumed if the actor is an accomplice in the commission of, or attempt to commit, among other things, kidnaping. While RR can in theory rebut the presumption that she acted with recklessness plus, the MPC presumes she has the required mens rea for murder under the circumstances. In this context, her warning clearly serves as evidence of her culpability, since it demonstrates that she was aware of a risk that FF would engage in rough stuff, tending to establish her recklessness. Whether she could effectively convince a jury that despite her awareness of the risk, the risk was not substantial and unjustifiable (under 2.02) is unclear. Also unclear is whether she manifested extreme indifference to the value of human life. But the accomplice liability theory at any rate allows RR to be charged with the murder of the cabbie, SS, and FF, as she was an accomplice to one of the listed felonies.
RR's Liability for Conspiracy
As for the charge of conspiracy to commit murder, MPC 5.03 requires the actus reus of agreement. It also requires the existence of an overt act in furtherance of the agreement. In this case, the overt act requirement is clearly satisfied by RR's employment of FF to kidnap her husband. However, the MPC requires a mens rea of purpose to promote or facilitate with respect to each conduct and result element of the target offense. RR must have intended FF to commit murder, which is clearly not the case here, since RR expressly told FF not to use any "rough stuff." While RR agreed to the kidnaping, she did not agree to FF's killing anyone. Therefore, it would be difficult to get RR for conspiracy to murder under the MPC.
Unfortunately the MPC does not follow Pinkerton liability, which would extend liability to a defendant for all the reasonably foreseeable acts of his co-conspirator. If it did, the question would be whether the killings FF committed were reasonably foreseeable as a result of the kidnaping. But under the MPC, this is irrelevant.
If there were a case of conspiracy to murder made out, RR might try to argue the defense of renunciation (5.03(6)). For this defense, RR must have taken affirmative steps inconsistent with the object of the conspiracy, and the renunciation must have been under circumstances manifesting a "complete and voluntary" renunciation of the defendant's criminal purpose. The defendant must also have "thwarted the success of the conspiracy." Here, RR tried to contact FF to call the plan off, then put in an anonymous tip to the police. RR did this after she read about similar plots ending in bloodshed, which further corroborates that she did not have the requisite intent for the murders to occur. But a defense of renunciation would probably not succeed, since she did not actually thwart the success of the conspiracy, if there was a conspiracy to murder. After all, FF did murder SS. But, as I have suggested, there is probably no conspiracy to murder anyway.
As for conspiracy to commit kidnaping, again, the mens rea is purpose and the actus reus is agreement. RR seems to satisfy the mens rea and actus reus in this instance, she clearly had the purpose that her husband be kidnaped, and she agreed with FF that he be kidnaped. Once again she might argue for a defense of renunciation under 5.03(6), in light of the fact that she called the police. But this is unlikely to succeed, since she did not thwart the success of the conspiracy.
Finally, note that under the MPC, unlike at common law, conspiracy merges with the substantive offense. (MPC 1.07(1)(b)). So RR cannot both be convicted of conspiracy to murder and murder, and likewise cannot both be convicted of conspiracy to kidnap and kidnaping. I discuss the problems relating to kidnaping below in the context of attempts.
RR's Liability for Attempt
Under the MPC, the mens rea for attempt is purpose in most cases, and the actus reus is "a substantial step" which strongly corroborates the defendant's criminal intent. RR seems to satisfy the requirements for attempted kidnaping. Her solicitation of FF to kidnap her husband certainly constitutes a substantial step which corroborates her criminal intent, and she admittedly had the mens rea of purpose with respect to the kidnaping. Notice that her liability for attempt here does not depend on FF's having actually done anything. She is liable for attempt on the basis of her actions alone. It is not necessary to find her liable for attempt on an accomplice theory.
There is, however, a wrinkle here. If SS was dead when FF put him in the cab, then FF is not guilty of kidnaping SS. He too is guilty of attempted kidnaping, rather than kidnaping. But if SS was alive when FF put him in the cab, then FF would probably be guilty of kidnaping. Since RR solicited FF to do the kidnaping, RR would be guilty of kidnaping by way of accomplice liability (2.06). And if she were guilty of kidnaping, she could not also be guilty of attempted kidnaping, since attempt merges with the completed offense (MPC 1.07(1)(a)). So whether RR can be convicted of attempt will depend on whether she can be convicted of kidnaping, since she cannot be convicted of both.
Note also that under MPC 5.05 (3), RR cannot be convicted of both conspiracy to kidnap and attempted kidnaping. In general, a conspiracy charge will be easier to prove, and so there might be a slight preference for pursuing it over the attempt charge. Once again, however, all of this is predicated on the assumption that RR is not actually guilty of kidnaping (on the theory that SS died before he was put in the car).
Finally, RR might have a defense of abandonment under 5.01(4), as long as the abandonment was not induced by an increase in external impediments, and as long as she was not simply putting off the crime for some future occasion. Here, RR called the police voluntarily after reading about the potential for bloodshed. RR seems to have had a change of heart, and renounced her criminal purpose as to the kidnaping with respect to the possibility of death. However, it is unclear whether she truly thought better of the kidnaping, independently of the increased risks involved in carrying it out. So it is not clear whether she could successfully defend in this way.
Attempted murder would be unlikely to succeed for the same reason that conspiracy to murder would not. RR did not have the purpose to cause the deaths, and thus would lack the mens rea for attempted murder as well. There is one difference, however. Under 5.01(1)(b), she would be liable for attempted murder if RR were aware of the fact that death would result, even if she had no purpose that it result. Although RR may have been reckless with respect at least to SS's death, she did not have a mens rea of knowledge, and 5.01(1)(b) does not allow for attempt for a mens rea of recklessness. So I think she is not liable for attempted murder.
CC's Liability for Murder
Under 2.06(4), the mens rea with respect to result crimes for accomplices is the same as it is for the perpetrator, namely whatever mens rea attaches to the result element. So to be guilty of murder, CC must have had a mens rea of purpose, knowledge, or reckless indifference to the value of human life with respect to the deaths. Under the same analysis employed for RR's liability, the MPC presumes the actor acted "recklessly under circumstances manifesting extreme indifference to the value of human life ("recklessness plus") if the actor is an accomplice in the commission of, among other things, a kidnaping. So if CC is an accomplice to kidnaping, then it will be relatively easy to show he had the requisite mens rea for murder. So the real question is whether CC was an accomplice with respect to the kidnaping.
Under 2.06(3)(a)(ii), CC must have aided or agreed to aid the commission of the kidnaping, and he must also have had a purpose to promote the offense. Certainly he satisfies the actus reus requirement: procuring a vehicle as a get-away car does aid in the commission of the offense. Did he have the purpose to aid in the commission of the offense? It would be difficult to argue that CC had a purpose to promote the commission of a crime that he didn't know was taking place. There is evidence that CC did not know why he was being asked to procure a vehicle. On the other hand, his lack of knowledge might arguably be a product of his willful blindness, since he was aware that FF was always into things "you were better off not knowing about." His "willful blindness" should not exculpate him, if he would be thought to have the purpose to promote the crime were he aware of the purpose for which he was acquiring the car. This is because 2.02(7) provides that knowledge of a fact is established if a person is aware of a high probability of the existence of the fact. From the facts we are given, it is clear that CC had an idea that FF was up to no good, and that he would be providing the car to assist a criminal purpose. So in all likelihood he can be considered FF's accomplice in the kidnaping.
If he is an accomplice in the kidnaping, then the presumption of 'recklessness plus' from 210.2(b) applies, and he is presumed to have the mens rea necessary to be convicted of murder as FF's accomplice under 2.06(4). He would try to rebut the presumption once again by claiming that he was not aware of the purpose for which he was obtaining a vehicle, and he would have to argue that he did not think there was a substantial risk to human life from his doing so.
CC may argue for a defense of duress against his being an accomplice to the murders, since FF threatened him with force if he didn't help load the bodies into the car. (This would of course not apply to obtaining the vehicle in the first place.) So a duress defense might apply to that portion of the assistance he rendered FF that took place after the initial act of assistance. However, 2.09(2) might stand as a bar to even this thin defense, since CC might have recklessly placed himself in a situation in which he could expect to be subjected to duress, given the fact that he agreed to help someone with a reputation like FF's.
As for conspiracy to commit murder, it is not clear that CC had the requisite mens rea for conspiracy, namely purpose. He certainly satisfies the actus reus of agreement (slight smile) to a "job," and it has been shown that his willful blindness might be enough to establish his knowledge. But knowledge is not purpose, and CC must still be found to have a purpose to commit murder to be guilty of conspiracy to murder. Again, matters would be different if the MPC had adopted Pinkerton liability. But alas, it has not.
With respect to conspiracy to kidnap, it is not clear whether CC had the requisite intent. He arguably had at least knowledge, on a willful blindness theory. But there are difficulties here (see my discussion of the mens rea for attempt below). There is, at any rate, no problem of actus reus, since his smile was probably sufficient to indicate agreement (see, e.g., Alvarez).
As for attempted kidnaping, attempt requires purpose or knowledge as to the result elements, and purpose to engage in the conduct required for the completed offense. It has been argued that CC had knowledge, given that the MPC makes willful blindness equivalent to knowledge. The question is whether knowledge that he was assisting a kidnaping gives us grounds for thinking he had a purpose to assist the kidnaping (since kidnaping is a conduct crime). There is some ambiguity here. Certainly if FF had asked for help with a kidnaping, and CC had gotten the vehicle under conditions of full knowledge, he could not be heard to argue that he didn't have a mens rea of purpose but only knowledge because, say, he was only doing it for the money. So if his willful blindness amounts to knowledge, the purpose to assist a kidnaping can probably be imputed to him as well, thus making him guilty of attempted kidnaping. As with RR, however, if he is actually guilty of kidnaping, then he will not be guilty of attempted kidnaping, since the attempt merges with the completed offense.
Huxley-Binns: Criminal Law Concentrate 4e
Chapter 3: Outline answers to essay questions
Q: Illustrating your answer with decided cases, what is the purpose of mens rea?
Essay outline answer 1
This is an unusual question, but you will find that your tutors have to take steps to replace the traditional ‘What is intention?’ and ‘Why have two types of recklessness?’ essays because the law is now pretty much settled and lacking sufficient controversy to be set year on year.
You should be able to tackle an unusual question by building on existing knowledge, so for example, you could consider:
- Mens rea means guilty mind, but it is more about fault than guilt.
- The three main types are intention (proved by an aim, purpose, or foresight of a virtual certainty), recklessness (conscious, advertent, unjustifiable risk taking, but what the reasonable person would have foreseen is no longer enough), and negligence (on the whole, only gross is criminal).
- Intention and recklessness are subjective and therefore what D should have foreseen is unacceptable.
- Mens rea therefore includes fixing liability where D consciously and advertently carried out the actus reus and also where D did not, but should have, foreseen the result.
- That said, the absence of mens rea does not automatically lead to an acquittal if the offence is strict liability (chapter 4).
Q: The problem with the Woollin direction is that it fails to answer the following question: Say the jury returns after hours of deliberation and the foreman tells the judge that all members of the jury are in agreement that the death of the victim was a virtual certainty and that the defendant foresaw it as such, but that half of the jury wants to convict and half wants to acquit; What should the judge tell the jury? Discuss.
Essay outline answer 2
This is Professor Smith’s conundrum raised in his commentary to Woollin itself (see  Crim LR 890). It comes down to whether intention is a matter of law or fact. The use of the word ‘find’ by Lord Steyn in Woollin  indicates it might be a question of law, as opposed to ‘infer’ in Nedrick (1986) which is fact; but Lord Steyn in Woollin  also said that ‘the question is one for the jury’. This might be an application of s 8 Criminal Justice Act and, in Moloney , the House of Lords emphasised it is a question of fact. Woollin  is ambiguous on this point and, although the civil case of Re A  suggests it is a matter of law, the most recent pronouncement is Matthews and Alleyne  where the Court of Appeal was clear it is fact (even if there is little to choose between a question of law and one of fact).