Criminal Law Outline

Definition of Crime - A collection or body of binding rules that prohibit conduct that has been deemed to be harmful or otherwise undesirable and thus delineates what conduct is punishable by the authority who governs by said rules.

a.

Substantive v. Procedural -b.

However, we can certainly find examples of prohibited conduct in criminal aw (jaywalking; traffic violations) that are far less serious (and harmful) than some instances of prohibited conduct in civil law (breach of contract causing business to fold; negligent auto design leading to consumer deaths)

1)Criminal Law deals with more serious wrongs; i.

Criminal - government (prosecution) brings the suita)Civil - a private party (plaintiff) brings the suit.b)

Who brings the Action -1)

Misdemeanor - year or less max sentencei)Felony - greater than a year (varies by jurisdiction)ii)

Criminal - Punishments include fines, incarceration, and in some cases execution (also, unusual - public shaming)

a)

Civil - Punitive damages (financial penalty) may be awarded in cases of severe civil wrongdoing (such as in case of malicious intent)

b)

Punishment -2)

Criminal - Burden of proof is always on prosecution (unless prima facie case is made and defendant wants to raise an affirmative defense)

a)

Civil - Burden is on plaintiff, until prima facie case is made, then burden shifts to defendant

b)

Burden of Proof - ????3)

Practical certainty; no reasonable person would doubt defendant's guilt

i)

Criminal - Defendant's guilt must be proven beyond a reasonable doubt"

a)Standard of Proof -4)

Differences:ii.

Criminal v. Civil Law -c.

Crime and Criminal -I.

Criminal Law OutlineSaturday, February 26, 20117:50 PM

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defendant's guilt

More than 50% probability (much easier standard to satisfy)i)

Civil - If preponderance of evidence favors plaintiff, defendant is liable

b)

Whereas in civil law, we talk about liability, in criminal law we think about guilt.

1)

When the fact finder determines that a person is guilty of an offense, the resulting conviction is an expression of the community's moral outrage, directed at the criminal actor, for her act.

iii.

A principle that requires the government to prove the guilt of a criminal defendant and relieves the defendant of any burden to prove his or her innocence.

a.

5th(applies to Fed.) and 14th(applies to States) Amendmenti.The prosecution must persuade the fact finder beyond a reasonable doubt of every fact necessary to constitute the crime charged.

ii.

Due Process Clause of US Constitutionb.

It is not considered evidence of D's innocence (and it does not serve to shift burden from D to P), and it does not require that a mandatory inference favorable to the defendant be drawn from any facts in evidence.

1)

"POI" is more of a "benefit of the doubt" attitude that the law adheres to in the interest of protecting individual rights and not unjustly punishing D.

2)

Furthermore, it is a legal assumption - citizens, jurors, etc., are not bound by it. (law can't regulate thoughts, attitudes.)

3)

It is a legal assumptioni.

The person wouldn't be here in the first place if there wasn't some evidence against him.

1)

US Supreme Court: presumption of innocence of D is really an assumption of innocence that is indulged in the absence of contrary evidence.

ii.

D only gets to criminal trial in the first place if there is a determination of Probable Cause.

1)

If we were really talking about a presumption, it would have to be a presumption of guilt.

iii.

Presumption of Innocence is really a misnomer; its assumption of innocence that is indulged in the absence of contrary evidence. (you wouldn't be in trial if no evidence).

c.

Presumption of Innocence -II.

Sixth Amendment - "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.

a.

Imprisonment for more than 6 moths is authorized, ori.Only applies to non-petty offenses. Offense is non-petty where:b.

Right to a Jury TrialIII.

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Imprisonment for more than 6 moths is authorized, ori.Where it is otherwise clear that the legislature intended offense to be considered a serious one. (e.g. 6 moths imprisonment coupled with a huge fine).

ii.

Where the jury acquits D even where P proved D's guilt beyond a reasonable doubt.

a.

Yes, he did break the law, but the law is what is wrong so we will not punish him.

i.

Jury may believe that law violated by D was unjust, and thus D should not be punished for violating.

b.

In CL, a jury finds D "guilty" or "not guilty" but does not have to explain its verdict.

i.

Fifth Amendment: Double Jeopardy clause protects D from being tried for the same offense twice.

ii.

Two critical factor make jury nullification possible:c.

Jury nullification serves as the community's safeguard against morally unjust or socially undesirable (albeit legally proper) criminal convictions that inflexible judges might impose.

i.

In essence, it serves a societal protection against laws that are perceived to be unjust.

ii.

Dressler:d.

Jury NullificationIV.

Penalties imposed outside the criminal justice system, such as the disbarment of a lawyer by the licensing authority or the actions of a lynch mob, although painful and unpleasant, do not constitute "punishment".

i.

Definition: punishment is suffered when an agent of the government, pursuant to authority granted to the agent by virtue of D's criminal conviction, intentionally inflicts pain on D or otherwise causes D to suffer some consequence that is ordinarily considered to be unpleasant.

a.

Basis for desert (what you deserve for wrongdoing)1)Retribution2)

Blame: fault attributed for moral wrongdoing in the commission of social harm

i.

Kadish: "it is deeply rooted in our moral sense of fitness that punishment entails blame and that, therefore, punishment may not be justly imposed where the person is not blameworthy.

b.

Designedly harmful consequences that most people would wish to avoidi.These consequences are intended by the actii.Preceded by judgment of condemnation (which in and of itself may be punitive if sufficiently shameful)

iii.

Imposed by people with authority (theoretical v. legitimate)iv.

Punishment (cont.)c.

Punishment -V.

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Imposed by people with authority (theoretical v. legitimate)iv.

You can't punish someone for a rule that has not been established. 1)Follows breach of established rules.v.

Punishment is one of the main distinctions between criminal and civil law.i.Dressler: there is no universally accepted non-arbitrary definitionii.Generally speaking, D may be said to "suffer" punishment when the government, empowered by D's criminal conviction, intentionally imposes conditions or consequences that are ordinarily considered unpleasant or aversive upon D.

iii.

Is punishment only in Criminal Law?d.

Can we punish: thorough going masochist(someone who is persistent in causing themselves harm), persistent optimist (I have met new friends, time to myself), psychopath (this can be scientifically measured, typically no hope for reform or deterrence), Sociopath (understands the social consequences and does not care)

e.

Retributioni.Incarceration (public safety)ii.Specific Deterrenceiii.General Deterrenceiv.Rehabilitationv.Restitutionvi.Denunciationvii.

Reasons for Punishment:f.

Understand how the criminal law works

Understand how the criminal law was developed/devised

Understand alternative views of how criminal law should be constructed and applied

If you don't have a theory of criminal law, you can't tryly understand how criminal jurisprudence and law may be informed by behavioral sciences.

Consistency and reliabilityi.Why is it important to have a theory of criminal law?g.

Punishment must be intentional, can't be accidental (eg. Judge who is lenient on DUI offender who lost his family in accident, his job, and is crippled - these are unfortunate circumstances, not punishment, so retribution would require intended punishment (which is a redundant term by Moore's understanding ))

1)Moore's Retributive Theory of Criminal Lawi.

It is deserved when one freely chooses to violate established rules1)To an uncompromising retributivist, the wrongdoer should be 2)

Punishment is justified when it is deserved.ii.

Retributivismh.

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Kant: "even if a society resolved to dissolve itself...the last murderer lying in prison ought to be executed."

a)

"It is morally fitting that an offender should suffer in proportion to his desert or culpable wrongdoing."

b)

To an uncompromising retributivist, the wrongdoer should be punished, whether or not it will result in a reduction in crime.

2)

Backward looking (focusing on past Acts)iii.

Retribution1)Reasons for punishment:iv.

But what about Strict Liability, this is the opposite of Moore's theory.1)

Moore uses Murder hierarchy to show retribution is reason for punishment (Murder1, 2, 3, etc.).

v.

Violator upset natural moral balance by acting wrongfully; so must pay equal debt to restore moral balance

i)

Without proportionality, punishment is unfair/unjustOne.Condemnatory and penal proportionality requiredii)

Emotion is not an element by which retribution is defined.iii)

Retribution: serves to balance the moral scalesa)

Wrongdoing need not be reali)Proportionality not requiredii)Typically driven by reactive anger and other negative emotions (e.g. shame, embarrassment, frustration)

iii)

Revenge (or vengeance): harmful action in response to perceived wrongdoing

b)

Is retribution the same as revenge?1)Retribution v. Revengevi.

"The purpose of all laws is to maximize the net happiness of society. The pain inflicted by punishment is justifiable if, but only if, it is expected to result in a reduction in the pain of crime that would otherwise occur."

i.

"A person will act according to his immediate desires to the extent that he believes that his conduct will augment his overall happiness."

a)People are rational1)

This is an empirical question often not supported by science. i)

"He will avoid criminal activity if the perceived potential pain(punishment) outweighs the expected potential pleasure (criminal rewards)."

a)Punishment has a deterrent effect. 2)

Utilitarians assume: ii.

Incarceration (public safety) - D's imprisonment prevents him from committing crimes in the outside society during the period of

1)Reasons for Punishmentiii.

Utilitarianismi.

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committing crimes in the outside society during the period of segregation. (form of specific deterrence).Specific Deterrence - D's punishment is meant to deter future misconduct by D.

2)

D's punishment serves as an object lesson to the rest of the community; D is used as a means to a desired end, namely a net reduction in crime.

a)

General Deterrence - D is punished in order to convince the generalcommunity to forego criminal conduct in the future.

3)

Rehabilitation - to help reduce future crime4)Restitution - prevents crime by teaching that crime does not pay5)

Utilitarian b/c we inform individuals that the community considers specific conduct improper ant the we value the victim's worth and channels community anger away from personal vengeance.

i)

Retributive b/c of moral condemnation: serves to stigmatize the offender for his offense.

ii)

Some argue that denunciation is it's own theory of punishment (HB page 19)

a)Denunciation - prevents crime out of aversive shaming condition; 6)

No matte how egregious the wrongdoing, utilitarians do not advocate punishment unless they believe it will provide an overall social benefit.

1)

Retributivism looks backward and justifies punishment solely on the basis of the voluntary commission of a crime. Utilitarians look forward; they care about the past only to the extent that it helps them predict the future.

i.

Utilitarians believe that people are generally hedonistic and rational calculators, Retributivists focus on their view that humans generally possess free will or free choice and, therefore, may justly be blamed when they choose to violate society's mores.

ii.

Differences between Retributivism and Utilitarianism j.

It justifies using persons solely as a means to an endi.Utilitarianism can justify the punishment of a person known to be innocent of wrongdoing.

ii.

Criticisms of Utilitarianism - HB PAGE 20k.

The infliction of pain that need not result in future benefit. i.It glorifies anger and legitimizes hatred. ii.It is irrational b/c it is founded on emotions, such as anger, rather than on reason.

iii.

Criticisms of Retributivism - HB PAGE 22l.

Is this a Utilitarian approach limited by retributive goals (Moore) or a Retributive approach limited by Utilitarian goals (Fontaine).

1)Punishment is justified if it achieves social net gain AND person deserves iti.

Two Possible Mixed Theoriesm.

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Retributive approach limited by Utilitarian goals (Fontaine).

No one has adopted this view but this is a logically possible mixed theory.

1)

We don’t discuss who, why, or what degree of punishment unless we think they deserve it.

2)

Punishment is justified if it achieves social net OR person deserves itii.

One who has committed a wrongful act and social harm deserves to be punished. Punishing the wrongdoer is the right thing to do because of his desert.

1)Deontological Retributivism (Pure Retributivism)i.

Wrongdoer is punished if he deserves it and some social net gain is achieved.

1)

No pure consequentialism is practiced2)Utilitarian values qualify retribution, not vice versa.3)We don't consider social benefit if we haven't already identified desert.

4)

Consequential Retributivism (Qualified Retributivism)ii.

Two Main Punishment Theoriesn.

The punishment for a given crime should be roughly proportional to that crime's seriousness.

a.

Deontology - Morality of an action should be judged by whether the act accords with the rule. (if the act violates the rule, it is wrong)

a)

Consequentialism - judges the morality of act by the outcome, consequences of it. (Utilitarianism is a type of Consequentialism).

b)

Dichotomy is ends v. means.c)

Uncompromised proportionality is a principle of deontological retributivism.

1)

"one person ought never to be dealt with merely as a means subservient to the purpose of another.." ( Kant against Utilitarianism.)

a)

Utilitarian plans of justice are immoral b/c they punish the b)

Kant: "The only way we can respect the dignity of the criminal is to give him/her their proportional punishment. Exacting a proportional punishment is recognition of the offender's worth and dignity (consistent with the concept of desert)"

2)

Retributivists are especially likely to believe in the principle of proportionality - since retributivists believe that the main purpose of the criminal law is to require that criminals pay their debt to society by undergoing punishment, they believe that more serious crimes deserve more serious punishment.

i.Retribution v. Utilitarian -b.

ProportionalityVI.

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Utilitarian plans of justice are immoral b/c they punish the criminal as a means. The punished person must invite the punishment by wrongful behavior.

b)

Proportionality doesn't require that we rape the rapist (punishment need only be equal to the severity of the crime).

c)

The only purpose of punishment is in order that everyone may realize the desert of their act.

d)

Utilitarians are likely to be less wedded to the proportionality principle. Since utilitarians focus on deterrence, they advocate punishing a given crime be the least amount that will suffice for general and specific deterrence, and this amount may not correspond to the moral blameworthiness of the particular crime.

ii.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

i.

Forbids some punishments entirely,1)Forbids some other punishments when compared to the crime committed(mental health history).

2)

According to the Supreme Court, the 8th Amendment:ii.

The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity", especially torture.

1)

"A severe punishment that is obviously inflicted in a wholly arbitrary fashion."

2)

I.e. Stoning in publica)

A severe punishment that is clearly and totally rejected throughout society.

3)

Does not pursue any human goala)"A severe punishment that is patently unnecessary"4)

Furman v. Georgia, Justice Brenan asserted four principles which may determine whether a punishment is cruel and unusual:

iii.

Wikerson v. Utah: Supreme Court ruled that drawing and quartering, public dissecting, burning alive, or disemboweling would constitute cruel and unusual punishment regardless of the crime.

iv.

Atkins v. Virginia: executing mentally handicap is cruel and unusualv.Roper v. Simmons: executing individuals who were juveniles at time of crime is cruel and unusual.

vi.

Essentially says that death penalty is disproportionately severe for any crime that does not cause another person's death.

1)

Retributive grounds for majority: death is disproportionately severe for a crime that did not take another persons life.

2)

Utilitarian grounds are not likely, but maybe deterrence argument. 3)

Coker v. Georgia: escaped prison rapes and nearly kills woman; he was in jail for murder.

vii.

8th Amendment -c.

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Could be argued that execution would encourage killings (if perpetrator thinks he will be killed anyway, he may be more likely to kill the rape victim)

a)

Could be argued that the execution for rape would deter the act (probably the stronger of the two arguments).

b)

Utilitarian grounds are not likely, but maybe deterrence argument. 3)

Kennedy v. Louisiana: extended Coker by ruling that death for the raping of a child was excessive "where the victims life was not taken."

viii.

A person may not be punished unless her conduct was defined as criminal before she acted. Essentially a rule against retroactive punishment.

a.

Ex Post Facto - Legislatures are prohibited from enacting law that would punish conduct that was lawful at the time it was committed, or that increases punishment.

i.

Due Process Clause of 14th Amendment - Courts are prohibited from enlarging the scope for criminal statutes.

ii.

Two Constitutional basis:b.

Can't leave this all up to the courts (the courts would then be making law)i.If unreasonably vague, it does not provide fair warning of what is prohibited.

ii.

Void for Vagueness - legislatures have to be clear and unambiguous, explain what they mean; 2 reasons:

c.

Fair notice - (otherwise violation of due process)1)

Criminal statutes should be understandable to reasonable law-abiding persons;

i.

Ad hoc means when a law is made only with a specific case at hand, and without consideration of wide implications/applications.

1)

Criminal statutes should be crafted so as not to delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis;

ii.

Judicial interpretation of ambiguous statutes should be biased in favor of the accused(lenity doctrine).

iii.

Lenity principle requires courts to favor D in cases where statute is unclear or ambiguous. It does not, however, require courts to denounce statutes unconstitutional if there is any question as to its specificity/breadth.

a)

In Re Banks - Court suggested that between finding a law constitutional or unconstitutional, it must lean towards finding it constitutional.

1)

Lenity Principle - Statute are to be interpreted in the manner most favorable to the accused.

iv.

3 Corollaries:d.

LegalityVII.

Actus Reus -VIII.

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Many utilitarians would argue that involuntary behavior should not be criminalized because it cannot be deterred. Retributivists would claim that an individual who did not choose to do a wrongful act does not deserve punishment.

i.Utilitarians v. Retributivistsa.

Nevertheless, both instances may be argued to cause social harmi.

In some cases, the actus reus may be interpreted to include the harm caused by the physical act (murder, someone dies). However, some crimes don't require a result immediately caused by your conduct (driving while intoxicated).

b.

(1) a person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act which he is physically culpable.

i.

A reflex or convulsiona)A bodily movement during a unconsciousness or sleepb)Conduct during hypnosis or resulting from hypnotic suggestion.c)A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

d)

(2) The following are not voluntary acts within the meaning of this section: ii.

The omission is expressly made sufficient by the law defining the offense; or

a)

A duty to perform the omitted act is otherwise imposed by law. b)

(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:

iii.

(4)Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

iv.

MPC 2.01 (Requirement of Voluntary Act; Omission as basis of Liability; Possession as an Act)

c.

AL statute does not explicitly require a voluntary act, but the court is here making a statement that the actus reus element of a crime needs to be a voluntary act.

i.

Martin v. State - You are not guilty of public drunkenness if you were forcibly taken to a public place. (a person is not guilty of an offense where liability is based on involuntary conduct).

d.

One cannot willfully create a state by which she engages in acts that are involuntary and be excused for her wrongful action committed during said state.

i.

Behavior that is carried out unconsciously (sleep walking) is non voluntary (or spontaneous or automatic) and thus may be used as a

a)A note on automatism:ii.

State v. Utter - Dad got drunk, blacked out, and killed his son. e.

Actus Reus -VIII.

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voluntary (or spontaneous or automatic) and thus may be used as a defense to a crime (negation of actus reus element).However, if automatism is viewed as non-intent (rather than non-voluntariness), then not a defense to strict liability crimes.

b)

The defendant will normally not be criminally liable for failing to attempt to rescue, even though this could have been done with perfect ease and safety.

i.

Special Relationship - A special relationship between the defendant and the victim may give rise to such a duty to act. A close blood relation ship is the clearest example.

a)

She had taken drugs before. Although there is no legal duty based on their relationship, there maybe one if he created the risk. V was not D's wife or child and D was not V's custodian or caretaker.

a)

See People v. Beardsley - Mistress dies from morphine overdose. Omission is defined as the neglect of a "legal duty", and not the failure of merely a moral duty.

b)

Life sustaining treatment must be continued when it is proportionate. In other words, the treatment must be continued so long as the benefits exceed the costs.

a)

There is no duty to act if the prescribed course of treatment has been shown to be ineffective. In this case, the treatment is ineffective b/c the patient will never recover substantial brain function.

b)

Barber v. Superior Court - Dr. turns off respirator and patient dies. c)

Liability for Omissionii.

Omissions (Negative Acts)f.

Utilitarian - The mens rea requirement can be justified on deterrence. One who causes harm accidentally, rather than intentionally or with an "evil-meaning mind", is harmless and not in need of reformation. This argument is only partly persuasive. Even if one acting without a culpable state of mind cannot be deterred on the present occasion, his punishment may serve as a useful warning to others to be more careful in their activities, thereby reducing the number of accidentally inflicted injuries.

i.

Retributive - the principle of mens rea has its roots far deeper in retributive than in utilitarian. Although a society presumably wants to deter harmful conduct, the mens rea requirement flow from our society's commitment to individual choice; the principle is founded on the belief that it is morally unjust to punish those who accidentally, rather than by choice cause social injury.

ii.

Utilitarian v. Retributivists -a.

General v. Specific Intent -b.

Mens Rea - Degrees (or levels) of Guilty Mind, or Guilty mental states.IX.


An offense is specific intent if the crimes requires proof that the actor's conscious object, or purpose, is to cause the social harm set out in the definition of the offense. In contrast, a crime is general intent in nature if the actor can be convicted upon proof of any lesser state of mind, such as when he causes the harm knowingly, recklessly, or negligently.

a)

General intent, broad view, refers to any offense for which the only mens rea required was a blameworthy state of mind; specific intent, narrow view, was meant to emphasize that the definition of the offense expressly required proof of a particular mental state.

i.General v. Specific Intent -b.

Under these strict liability offenses, an individual will be convicted no matter what his/her mental state at the time of the commission of the crime. Strict liability offenses are also found in cases involving mistake of fact, including a defense to a charge of statutory rape where the individual charged with the offense alleges that he believed the victim to be over the age of consent.

a)

Strict liability offenses are crimes against the public welfare; typically minor crimes and infractions (e.g., traffic violations); however, can involve more serious crimes for which imprisonment is a penalty (e.g., statutory rape; or repeat offenses, such as selling alcohol to minors)

i.Strict Liability Offenses -c.

In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but requires actual intention to do a particular kind of harm or recklessness as to whether such harm should occur or not.

a)

Court ruled that malice did not require wickedness. Foreseeability or recklessness would be sufficient to prove malice.

b)

Regina v. Cunningham - stealing a gas meter, and which exposed an individual to non-fatal asphyxiation.

d.

D attempted to strike V's friend with a wine bottle but instead hit V. D was found guilty of aggravated battery (Mitigated is anything that lessens the blame; Aggravated is anything greatens the blame.) D claimed that the state did not prove beyond a reasonable doubt that he intended to inflict a permanent disability.

i.

Dressler (Broad): Unlawful physical contacta)Fontaine (Specific): Intentional infliction of physical harmb)

Battery:a)

Aggravated battery requires the commission of a battery where the offender intentionally or knowingly causes great bodily harm or permanent disability or disfigurement.

ii.

Intent can be inferred by the circumstances surrounding the crime. iii.

Proving Culpability (People v. Conley) -e.


Intent can be inferred by the circumstances surrounding the crime. iii.

D intends the harm causeda)Where one's conscious objective for action is to cause the harm defined by the crime

b)

KEY: "conscious object" (or conscious objective) to cause harm that results (or could have resulted, in case of attempt crimes).

c)

Purpose (intent) -i.

Where one is practically certain that her action will result in a crime against another party, though she is not acting for the purpose of committing said crime.

a)

Although the person intended to engage in the behavior and was fairly certain that it would cause some harmful outcome, she did not enact the behavior for the purpose of causing said harm.

a)

Different than motive, where you do intend to cause the harm, but there may be different reasons (or motives) for wanting the harm to be caused.

b)

KEY: "Practical certainty" that harm to other will resultb)

NOTE: The distinction be tween purpose and knowledge is the presence of a positive desire to cause the harm that results as opposed to knowledge of its near certainty. In the broader sense of mens rea, the distinction divides the notion of maliciousness or viciousness from the somewhat less objectionable callousness.

c)

E.G.: Two people can desire to engage in the same behavior but intend different outcomes to result from said behavior. Two basketball players defending the basket - one may intend to block the shot, the other may intend to foul the shooter, but both intend to jump and sing their arms down.

a)

Purpose v. Knowledge - Behavior v. Outcome: Purpose has to do with having a specific goal to achieve a certain outcome as the result of acting a certain way. Purpose does not mean merely the intent to engage in the behavior without respect to why the behavior is enacted.

d)

Knowledge (knowingly) -ii.

Awareness that one's action poses an unjustifiable, substantial risk of causing a harmful result

a)

KEY: Awareness of "substantial risk"b)

Recklessness (recklessly) -iii.

Actor is not aware that his action poses an unjustifiable risk of harm, but should have been aware of the risk, and thus fails to exercise a reasonable duty of care to prevent the harm in question.

a)

KEY: Unaware of substantial risk that a "reasonable person" would b)

Negligence (negligently) -iv.

MPC Levels of Mens Rea -f.


KEY: Unaware of substantial risk that a "reasonable person" would have been aware of.

b)

This standard is viewed as an objective standard, but may be made more subjective to the degree that the defendant's circumstances are taken into consideration (e.g. Child, doctor, battered woman)

a)

E.g. interpretation of provocation: heat of passioni)

Used as a standard to evaluate certain criteria of some affirmative defenses.

b)

REASONABLE PERSON - The reasonable person standard is used to discern criminal negligence. The reasonable person is not a real person, but rather a standard that asks: would the overage, informed, fair-minded person have acted as the defendant did? If the defendant acted in a way that is grossly inadequate, as compared to the reasonable person, then criminal negligence may be found.

c)

When D intentionally fails to be informed about matters that would make her criminally liable. It describes attempt to avoid liability for wrongful act by intentionally putting oneself in a position to be unaware of facts so that she cannot meet the requisite mens rea for criminal liability.

a)

Knowledge of a fact is satisfied by finding an awareness of a high probability that it existed.

b)

Court focused on strict statutory definition of knowingly and its distinctions from the lesser mens rea of recklessness. Court recognized that D's refusal to learn age of young child suggested D was aware of a high probability that child was under 17. Although D was reckless in that she was conscious of a substantial and unjustifiable risk, her actions did not rise to the level of knowledge.

a)

State v. Nations - D owned a strip club where she hired a 16 year old. The statute prohibited "knowingly encouraging, aiding, or causing a child less than 17 to engage in any conduct.

c)

D gave employer false name, B-day, and SSN#. D argued that he did not know that the ID he possessed belonged to another person. Statute read: "knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person."

a)

Court held that gov't needs to prove that D knew that the ID he possessed belonged to another person. The court reasoned that ordinary grammar indicates that "knowingly" should be read to apply to all subsequently listed elements of the crime in the

b)

Flores-Figueroa v. US -d)

Knowledge of Attendant Circumstances - Willful Blindnessv.


apply to all subsequently listed elements of the crime in the relevant statute. Unless otherwise stated, the requisite mens rea applies to all other elements of the crime.

c)

D possessed a unregistered gun that had been altered and was now fully automatic. D was convicting of a federal statute that stated possession of an unregistered firearm is punishable up to 10 years.

a)

Court ruled that absent a clear Congressional statement that mens rea is not required, the public welfare/ strict liability rationale should not be applied to interpret any statute that fails to mention mental state as an element of the offense.

b)

The Court argues that it is unthinkable that Congress intended to subject such law-abiding, well-intentioned citizens to a possible 10-year term of imprisonment if what they genuinely and reasonably believed was a conventional semi-automatic turns out to be fully automatic.

c)

Fontaine thinks this is a balancing of interests. d)

Staples v. Nation -e)

Not a mental state' different class of crimes with no mental state requirement

a)Strict Liability - vi.

Court held that in order to be convicted of larceny, D must take another's property with the intent to permanently deprive him of the property. Where one sincerely believes that he has a right to property, he cannot possibly intend to steal the property. As long as the belief is genuine and in good faith, the reasonableness of the belief does not matter since one cannot negligently steal property. Even though D's belief of entitlement to the lumber may have been unreasonable, he cannot be guilty of larceny.

i.

So...Navarro states that if a person has a good faith belief that he has a right to certain property, he is not guilty of larceny, even if the belief is unreasonable, because larceny requires the specific intent to deprive.

ii.

However, if the statute is a general intent crime, the mistake must be reasonable in order to be acquitted.

iii.

People v. Navarro - D was charged with stealing wooden beams. He believed the beams were abandoned or that he had permission to take them, even though it was unreasonable to believe this.

a.

The reasons for not finding a person who has a mistake of fact guilty seems obvious: a retributivist would not convict her because she is not morally blameworthy; and because people will not be deterred from doing what they believe to be innocent acts, there is no utilitarian need to punish her

i.Retributivists v. Utilitarianb.

Mistake of FactX.


they believe to be innocent acts, there is no utilitarian need to punish her either.

Court held that a mistake of law defense is not valid unless the mistaken belief is based on an official statement of the law. If subjective mistakes of law were treated as valid defenses, mistakes about the law would be encouraged (and commonly used as an excuse to avoid responsibility and punishment for criminal behavior.)

i.

People v. Marrero - D, a federal prison guard was arrested for having a loaded gun in a NY club. The statute exempted peace officers (any official or guard of any state prison or of any penal correctional institution.) Seems to be a reasonable interpretation.

a.

A statute later declared to be invalida)A judicial decision of the highest court in the jurisdiction, later determined to be erroneous.

b)

The official statement must be written. a)

An official, but erroneous, interpretation of the law, secured from a public officer in charge of its interpretation, administration or enforcement.

c)

An official Statement is:i.

Under both CL and MPC, ignorance of the law is not an excuse for criminal conduct. However, in both, one is excused for committing a criminal offense if she reasonably relies on an official statement of the law, later determined to be erroneous, obtained from an entity with responsibility for the interpretation, administration, or enforcement of the law defining the offense.

b.

A argument can be made that persons who are, or should be, aware that their conduct might be regulated have a "duty to inquire" about the law and are morally blameworthy for failing to ascertain its reach.

i.

A utilitarian could argue that it is occasionally necessary to sacrifice the morally innocent person to achieve the better good of establishing an incentive for learning the law.

ii.

Utilitarian v. Retributivistsc.

Mistake of LawXI.

A cause or factor without which the event could not have occurred. Remove this factor from the chain of events and the harm doesn't happen.

i.

The "but for" test is often used to determine actual causation. "but for" the existence of A, would B have occurred? If the answer is yes, then factor A is an actual cause of result B.

ii.

Actual Cause (cause in fact; "but for" causation)a.

A proximate cause is one that is legally sufficient to result in liability. It is an act or omission that is considered in law to result in a consequence, so that liability can be imposed on the actor. It is the cause that directly produces

i.Proximate Cause (legal cause)b.

CausationXII.


liability can be imposed on the actor. It is the cause that directly produces an event (sufficiently close to the resulting injury to justify liability.)

Note the word "free" here. In determining whether a proximate cause counts as a superseding cause there is no issue that is more important than whether the intervening cause was freely formed - that is, whether it occurred independent of D's voluntary act or omission.

a)

Free, Deliberate, Informed Human Intervention - D may be relieved of criminal responsibility if an intervening cause,(e.g., V chose to stay outside in the freezing night and consequently died), was the result of a free, deliberate, and informed human intervention.

a)

Intervening Cause - An independent force that produces the social harm, but which happens after D's voluntary act or omission.

ii.

Apparent safety Doctrine - When V has a route to safety but instead puts herself in further harm, which causes the injury of death.

iii.

Concurrence (or contemporaneity or simultaneity) refers to the need to prove simultaneous occurrence of both actus reus and mens rea to constitute a crime.

i.

In theory, if the actus reus does not hold concurrence in point of time with the mens rea then no crime has been committed.

ii.

Concurrence of the Elementsc.

Some jurisdictions now treat a viable - or at times, even nonviable -fetus as a human being by statute.

i.

Common law and majority define the beginning of life as birth for purposes of interpreting the criminal homicide law.

a.

Regarding the end of human life, a majority of states, either by statute or judicial decision, have incorporated "brain death" in their definition of "death."

b.

Common Law Homicide

"the killing of a human being by another human being with malice aforethought"

-

Intent to kill○

Intent to inflict grievous bodily injury to another. ○

An extremely reckless disregard for the value of human life; or○

The intention to commit a felon during the commission or attempted commission which a death results (felony murder rule).

○

Malice: -

Murder

A willful, deliberate, premeditated killing with specific intent to kill is murder in the first degree.

-

1st Degree Murder

Homicide - XIII.


murder in the first degree.Willful, deliberate, premeditated:-

Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first degree murder.

○

Some○

Premeditate:-

A willful, deliberate killing with malice aforethought that is not premeditated is murder in the second degree.

-

When a person should be, but is not, aware that her conduct is very risky - the risk taking is inadvertent - her behavior may justify the appellation of "criminal negligence", and constitutes involuntary manslaughter.

□

A person kills "recklessly" if she consciously disregards a substantial and unjustifiable risk to human life.

Can be implied if: (1) a person intends to cause grievous bodily injury to another, but results in death, (2) if a person's conduct manifests an extreme indifference to the value of human life (depraved-heart).

○

Malice-

2nd Degree Murder

Is "an unlawful killing of a human being by another human being withoutmalice aforethought"

-

Manslaughter

An unlawful killing of a human being by another human being without malice aforethought upon a sudden quarrel or heat of passion.

-

"an intentional homicide committed upon a sudden quarrel or heat of passion as the result of adequate provocation mitigates the offense to voluntary manslaughter" (intentional; passion/provocation)

-

The D must have acted in heat of passion at the moment of homicide. Passion has been interpreted to include any violent or intense emotion such as fear, jealousy, and desperation. However, heat of passion cases typically involve the emotion of anger.

○

Due to the influence of the MPC, juries are increasingly instructed

The passion must have been the result of adequate provocation. Juries are typically instructed to apply an objective "reasonable-person" standard.

○

Four Elements:-

Voluntary Manslaughter


Due to the influence of the MPC, juries are increasingly instructed to test the defendant's reaction to a provocation by the standard of the ordinary person "in the actor's situation. Left ambiguous is what "the actor's situation" might include.

The defendant must not have had an opportunity to "cool-off." The homicide has to have occurred soon after the provocation.

○

There must be a causal link between the provocation, the passion, and the homicide.

○

However, a few courts allow the defense to be raised in the case of informational, but not insulting words. Other courts have held open the possibility that insulting words may qualify in extreme circumstances.

Surviving from the Common law in most non-Model Penal Code jurisdictions is the rule that words alone do not constitute adequate provocation.

○

Words as Adequate Provocation-

Some states have identified specific provocation situations: 1) Discovering one's spouse having sex with another; (2) mutual combat; and (3) Assault and battery.

○

Adequate Provocation-

Involuntary Manslaughter

Gross negligence is required. a.

But probably more often this situation will be one in which a reasonable person, knowing of his physical defect, would not have engaged in the activity in question.

i.

Most physical characteristics are taken into account in determining whether the defendant' conduct was negligent.

b.

I.e. Traffic violations a)

Permits conviction for involuntary manslaughter when the death occurs accidentally during the commission of a misdemeanor or other unlawful act.

i.Unlawful-act manslaughter -c.

An unlawful killing of a human being by another human being without malice aforethought in the commission of an unlawful act NOT amounting to a felony, or in the commission in an unlawful manner ( or without due caution/care) of a lawful act that might produce death.

a.

Criminal negligence involves a gross deviation from the standard of care that reasonable people would exercise in the same situation; it must be so gross as to deserve punishment. D must, subjectively, be aware that she is taking a substantial and unjustifiable risk to human life.

b.


One is guilty of MPC criminal homicide if she unjustifiably and inexcusably takes the life of another human being purposely, knowingly, recklessly, or negligently. Unlike the common law, the death need not occur within a year and a day of the homicidal act.

-

The Model Penal Code rejects the degrees of murder approach, but delineates degrees of homicide nonetheless.

-

However, most jurisdictions continue to recognize degrees of murder and many use the MPC distinctions in mens rea to help distinguish levels of homicide

-

MPC Homicide

When the actor unjustifiably, inexcusably, and in the absence of a mitigating circumstance, kills another: (1) purposely or knowingly; or (2) recklessly (extreme recklessness), under circumstances manifesting extreme indifference to the value of human life.

-

Murder

A person is guilty of manslaughter under the MPC if she: (1) recklessly kills another; or (2) kills another person under circumstances that would ordinarily constitute murder, but which homicide is committed as the result of "extreme mental or emotional disturbance" for which there is a "reasonable explanation or excuse."

-

A person who kills another recklessly is guilty of manslaughter. (Compare to reckless murder: extreme indifference…)

○

Liability for manslaughter under the Code cannot be founded on criminal negligence. (unlike common law). Must have a consciousdisregard of a substantial and unjustifiable risk.

In any case in which a defendant is prosecuted for reckless murder, she is entitled to a jury instruction regarding reckless manslaughter, and may be convicted of the lesser offense if the jury determines that her conscious risk-taking, although unjustifiable and substantial, was not extreme enough to merit treatment as murder.

○

Reckless Homicide-

A person who would be guilty of murder because she purposely or knowingly took a human life, or because she killed a person recklessly under circumstances manifesting an extreme indifference to the value of human life, is guilty of the lesser offense of manslaughter is she killed the victim while suffering from an "extreme mental or emotional disturbance for which there is "reasonable explanation or excuse."

○

Extreme Mental or Emotional Disturbance-

Manslaughter


The explanation must be subjective in that the defendant experienced intense feelings, sufficient to cause loss of self-control, at the time of the homicide

The explanation must be objective in that it must be a reasonable explanation or excuse that cause the defendant to kill. (RPP)

disturbance for which there is "reasonable explanation or excuse."

A specific act is not required to trigger the EMED defense.

It need not involve an injury, affront, or other provocative act perpetrated upon the defendant by the decedent.

It need not fall within any fixed category of provocations; and contrary to the common law, words alone can warrant a manslaughter instruction.

There is no rigid cooling-off rule.

Difference from Common Law Heat of Passion○

A criminally negligent homicide - involuntary manslaughter at common law - constitutes the lesser offense of negligent homicide under the Code.

○

Criminally Negligent Homicide

A justification defense is one that defines conduct "otherwise criminal, which under the circumstances is socially acceptable and which deserves neither criminal liability nor even censure." Justified conduct is conduct that is a good thing, or the right or sensible thing, or a permissible thing to do". That is, a justified act is an act that is right or, at least, not wrong.

i.Justificationa.

An excuse defense is in the nature of a claim that although the actor has harmed society, he should not be blamed or punished for causing that harm. Whereas a justification claim generally focuses upon an act, and seeks to show that the act was not wrongful, an excuse centers upon the actor, and tries to show that the actor is not morally culpable for his wrongful act.

i.Excuse -b.

The criminal law represents a crude, but nonetheless important, moral compass that can assist people in deciding which of various potential paths they should take in particular circumstances. People should take justifiable, rather than wrongful-but-excusable, paths. If the law does not label the paths clearly, the system has failed to provide adequate guidance.

a)

If the justification/excuse distinction is ignored or misapplied, the law may inadvertently express a moral falsity by characterizing improper-

b)

Send a Clear Moral Message -i.Why care about the difference?c.

Defenses -I.


may inadvertently express a moral falsity by characterizing improper-but-excusable conduct as proper.

The common law heat of passion defense to murder suffers from a lack of proper attention to the differences between justifications and excuses. Some of the elements of the defense are best explained in justificatory terms, while others seem excuse based. The law is not well-served when a defense is composed of a set of inconsistent - perhaps even contradictory -principles.

a)

Appreciation of the justification/excuse distinction can help lawmakers coherently define criminal defenses.

a)Providing Consistency in the Criminal Lawii.

Generally speaking, justifications are universalized, whereas excuses are individualized. That is, if D is justified in performing act A to protect her own rights, a third person, X, is also justified in doing A to protect D. An excuse may only be invoked by the person who suffers from the excusing condition.

a)Third Party Conductiii.

Is imminenta)Unlawful or unjustb)Requires amount of reactive forcec)Many jurisdictions require D to retreat if the reasonable option exists. d)

At common law, D needs to have the genuine and reasonable belief that she is present with a threat that:

i.

D can be mistaken, as long as the mistakes are genuine and reasonable. ii.

Conflicts usually occur between mutually culpable actors. a)

If someone must die in a deadly conflict it is better that the aggressor, whose anti-social nature is manifested by his conduct, be the victim

a)

The aggressor will be deterred by the fear that his intended victim will resist the attack.

b)

Utilitarian Explanationiii.

Innocent victims of aggressive attacks are not immoral actors and cannot be seen as "blameworthy" when they respond to such attacks.

a)Retributive Argumentiv.

Self-Defense (Full Justification) - Can defend oneself in case of imminent threat of grievous bodily harm or death.

a.

So maybe reduced to manslaughtera)

There is some reasonable belief of threat and that you need to defend yourself and you could have justifiably used some force….however, the force you used was excessive

a)When too much force was used to defend oneself or anotheri.

Imperfect Self Defense/ Excessive Use of Force (partial Justification) -b.

DefensesII.


So maybe reduced to manslaughtera)Viewed as justification b.c some of the act was within your rightsb)

Law doesn't want to provide a defense in situations where the threat may be fabricated.

a)Most jurisdictions have restricted this defense to cases of natural disaster.i.

"Lesser of two evils"; by performing an objectively criminal act, you prevent something even worse.

ii.

Never a defense to Murder Always? ; check w/ Fontaineiii.

Necessity (Full Justification) - act committed to prevent greater harm from occurring (e.g., criminal trespass to save drowning child)

c.

I.e. police officer shoots a robber who only has a fake guni.Mistake of Fact (Rarely justified, normally excused) (See Excuse Defenses)d.

A statute later declared invalid; a)A judicial decision of the highest court in the jurisdiction, later determined to be erroneous

b)

The official statement must be in writing. a)

An official, but erroneous interpretation of the law, secured from a public officer in charge of its interpretation, administration, or enforcement

c)

Official Statementi.

Mistake of Law (rarely excused) - Ignorance of law is no excuse; exception is when relying on government communication that act is allowable.

e.

Mistake of fact is NOT recognized as an affirmative defense in strict-liability cases.

i.

Mistake of Fact (excuse; sometimes justification) - Good Faith mistake of fact, regardless of whether reasonable or unreasonable, is a defense to specific intent crimes

f.

Another person threatened to kill or grievously injure the actor or third party, particularly a close relative;

a)

The actor reasonably believed that the threat was genuineb)The threat was present, imminent, and impending at the time of the criminal act

c)

There was no reasonable escape from the threat except through compliance with the demands of the coercer; and

d)

The actor was not at fault in exposing herself to the threat. e)

Duress applies when i.

When a person is in thrall to some coercive power the threat of criminal punishment is ineffective.

a)Utilitarian Argumentsii.

A coerced actor does not deserve to be punished for her actions.a)Retributive Argumentsiii.

Duress (Full Excuse) - criminal act committed in response to thereat and out of coercion (and fear)

g.


Although the coerced actor possesses free will, she does not possess a fair opportunity to exercise her will to act lawfully. Of course, society odes not excuse an actor for violating the law whenever she must make a hard choice. Duress only excuses when the available choices are not only hard by also unfair.

a)A coerced actor does not deserve to be punished for her actions.a)

Necessity does not require a threat of death or serious bodily harm. As long as the D actually inflicts less harm than he was threatened with, the claim of necessity can be made.

a)

Necessity requires a weighing of the injury inflicted with the injury threatened, there is no inherent reason to restrict necessity to threats against life or person.

b)

When a person commits the lesser of two evils, nobody should be subject to prosecution for the outcome, because the outcome is socially desirable or ,at least, not undesirable.

a)

This result follows from the fact that duress is an excuse rather than a justification, and there is a culpable human being who may properly be held responsible for the social harm caused. (the coercer)

b)

The necessity defense applies when a person is faced with a choice of two evils and must then decide whether to commit a crime or an alternative act that constitutes a greater evil, and the person makes the right choice. In contrast, duress applies even when the coercer's threats overwhelm the actor's will so that she makes the wrong choice, i.e., perpetrates a greater evil. Check w/ Fontaine

c)

Duress v. Necessityiv.

There needs to be substantial evidence of mental dysfunction, typically in the form of an official medical/psychiatric disorder

i.

Insanity is very seldom successful, but often claimed as an alternative defense

ii.

You can argue, with insanity, that there is no mens rea for guilty mind OR as a defense that you are not morally culpable.

iii.

Did not know the nature and quality of the act that he was doing or

a)

If he did know it, he did not know that what he was doing was wrong.

b)

A person is insane if, at the time of the criminal act, he was laboring under such a defect of reason, arising from a disease of the mind, and that he:

a)M'Naghten Rule -iv.

Insanity (Full Excuse) - at the time of act, defendant did not understand wrongfulness of act due to mental impairment or illness, negating requisite mens rea.

h.


wrong. Requires total incapacity; not just partial unreasonableness. b)Does not recognize volitional incapacity in which a person is aware that conduct is wrong yet cannot control his conduct.

c)

Some jurisdictions have broadened the scope of M'Naghten to include mental illness that affect volitional capacity.

a)

He acted from an irresistible and uncontrollable impulsea)He was unable to choose between the right and wrong behavior; or

b)

His will was destroyed such that his actions were beyond his control.

c)

A person is insane if at the time of the offense:b)

Irresistible Impulse Testv.

Appreciate the criminality of his conduct; ora)To conform his conduct to the requirements of the lawb)

As a result of a mental disease or defect, D lacks Substantial capacityto :

a)

Does NOT require total mental incapacityb)Pretty broad determination of incapacityc)

ALI/MPC Test -vi.

The nature and quality of his conduct; ora)The wrongfulness of his conduct.b)

At the time of the offense, as a result of a severe mental disease or defect D was unable to appreciate:

a)

Maybe harder b/c it requires Severe mental disease. a)Requires complete cognitive incapacity (similar to M'Naghten)b)

Federal Test -vii.

Punishment of an insane person may be pointless or counter-productive. A person who does not know what she is doing or who cannot control her conduct cannot be deterred by the threat of criminal sanction.

a)

Incapacitation of an insane person normally is socially desirable. b)Rehabilitation is not furthered by convicting an insane person and sending her to prison. It is more rational to separate her from the penal system and treat her condition as a medical problem.

c)

Utilitarian Argumentsviii.

Rationality: just punishment is dependent on moral desert; moral a)

Serves as a distinguishing point between the bad and the made, between evil and sickness, between those who possess free choice and those whose free choice is seriously undermined,.

a)Retributive Arguments (primarily)ix.


Rationality: just punishment is dependent on moral desert; moral desert is dependent on moral responsibility for one's actions; and moral responsibility for one's actions is dependent on the essential attributes of personhood, namely rationality and self-control.

a)

A would-be wrongdoer may believe, although perhaps inaccurately, that if she is caught for her crime she will be able to avoid conviction or commitment by raising the insanity defense.

a)

The defense may have a negative impact on those who are NOT mentally ill, and on those whose illnesses are not severe enough to qualify for acquittal. Awareness by such people that the law recognizes an insanity defense may reduce the deterrent effect of the criminal sanction.

a)Counter-Deterrence Argumentsx.

Fist, there is a mens rea form of diminished capacity. This mens rea model functions as a failure of proof defense. Evidence of mental abnormality is offered to negate an element of the crime charged, usually the mens rea element.

a)

Few states recognize the "partial responsibility defense. Where it does apply , it is only a defense to murder to mitigate the offense to manslaughter.

a)

Second form partially excuses or mitigates a defendant's guilty even if he has the requisite mens rea for the crime, will be called here "partial responsibility."

b)

Is a term used to describe two categories of circumstances in which an actor's abnormal mental condition, short of insanity, will occasionally exonerate him or, more often result in his conviction of a less serious crime or degree of crime than the original charge.

i.Diminished Capacity (partial excuse) - a lower degree of insanityi.


In criminal law, the litigation is always filed by the government, called the prosecution.

-

Burden of proof is always on the prosecution (unless prima facie case is made and defendant wants to raise an affirmative defense)

-

In Croker v. GA, majority held that capital punishment is always a disproportionate penalty for rape.

-

In states that grade murder by degree, Intent to inflict grievous bodily injury form of malice nearly always constitutes second-degree murder.

-

Typically, in states that grade murder by degree, premeditation and deliberation constitutes 1st degree murder.

-

ALWAYS:

Crimes do not always have to be intentional; reckless acts-

You don't always have to "do something" to commit a crime; omission to act.

-

Crimes don't always have to cause harm; Inchoate crimes(possession), attempt crimes (attempted murder)

-

Criminal wrongs are not always significantly worse than civil wrongs.-

Punishment is not only given in criminal law; civil law punitive damages.

-

Desert does not play a role in all crimes; strict liability. -

Not Always

Necessity is never a defense to murder-

Never

Many jurisdictions restrict the defense of necessity to natural causes-

Mistake of fact is often recognized as an affirmative defense; not in strict liability crimes.

-

Mistake of Law is usually NOT a defense; unless official statement-

Usually

Premeditation and deliberation are sometimes treated as synonyms-

Strict liability crimes are typically minor crimes and infractions. -

In all criminal prosecutions, the accused shall enjoy the right to a -

Sometimes

Sometimes, always, neverMonday, April 25, 201111:32 PM


In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury (6th Amendment). Not always, applies only to non-petty offenses.

-

Mistake of law is rarely a defense.-

Rarely


Does MPC change common law fetus rule? Or does the state also need a statute, even if it has adopted the MPC

-

How would we know a statute is strict liability? No mens rea?-

How much transferred intent do we need to know? We did cover it in the wine bottle battery case.

-

Extreme reckless is murder….Just recklessness is manslaughter under MPC, what about common law?

-

Telling old lady her daughter just died, knowing she has a terrible heart condition. If this were premeditated, deliberate, and willful, then first degree murder.

○

Can specific intent to kill be shown with practical certainty? Like Knowledge under MPC.

-

This seems to negate the grievous bodily malice which usually would constitute 2nd degree.

○

Can battery that causes death be used to constitute 1st degree murder under felony murder rule?

-

Liable, if they are an accomplice? ○

Third party deaths under the felony murder rule?-

Proximate Cause issue: If you brutally beat someone putting them in the hospital, they are disfigured. So, the victim pulls out the feeding tubes to kill her self…...Free? Deliberate, informed intervention….although it was foreseeable she would die, maybe even wanting that to occur.

-

Specifically S/D that was genuine and reasonable but wrong...Justification???

○

Self Defense on Exam: can we give our opinions as to Justification/Excuse.-

Questions for Fontaine:

Tuesday, April 26, 201112:44 PM


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