Criminal Law Outline Sources of Criminal Law: 1. Common law – judge-made law; this is often used to interpret ambiguous statutory language. 2. Criminal Statutes - Criminal law deals with statutory construction and the interpretation of statutes. This is the prevailing source of criminal law today and has essentially replaced CL. However, when a statute derives from common law and is ambiguous as to its meaning, the courts will look to common law for answers. Despite the abolition of most CL crimes, a few states have “reception” statutes, expressly recognizing CL offenses when statutory law does not provide a punishment for such offense. The statute “receives” the CL offenses in place at the time the statute’s enacted. 3. Model Penal Code – consists of effort to develop coherent code that drafters hoped states would adopted; drafted in 1950s and adopted in 1962. Although the code is not the law in any jurisdiction, many states have revised and adopted significant portions as their penal code. Also, states often look to the code for guidance. Distinguishing Criminal Law from Other Courses Crime = an act or omission and its accompanying state of mind which, if duly shown (beyond a reasonable doubt) to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community. Deals with punishment o People are punished for what they have done wrong Conviction itself is crucial o A jury has said that this individual is a “moral wrongdoer” o Finding of guilt is a formal pronouncement of moral condemnation by entire community against that individual o Whole society bringing action against individual and is a societal/moral condemnation and stigma that accompanies the conviction (condemning and stigmatizing individual for their behavior – this justifies the punishment) Prohibition, Condemnation and Punishment 1
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Criminal Law Outline
Sources of Criminal Law: 1. Common law – judge-made law; this is often used to interpret ambiguous statutory language.
2. Criminal Statutes - Criminal law deals with statutory construction and the interpretation of statutes. This is the prevailing source of criminal law today and has essentially replaced CL. However, when a statute derives from common law and is ambiguous as to its meaning, the courts will look to common law for answers.
Despite the abolition of most CL crimes, a few states have “reception” statutes, expressly recognizing CL offenses when statutory law does not provide a punishment for such offense. The statute “receives” the CL offenses in place at the time the statute’s enacted.
3. Model Penal Code – consists of effort to develop coherent code that drafters hoped states would adopted; drafted in 1950s and adopted in 1962. Although the code is not the law in any jurisdiction, many states have revised and adopted significant portions as their penal code. Also, states often look to the code for guidance.
Distinguishing Criminal Law from Other CoursesCrime = an act or omission and its accompanying state of mind which, if duly shown (beyond a reasonable doubt) to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.
Deals with punishment o People are punished for what they have done wrong
Conviction itself is crucial o A jury has said that this individual is a “moral wrongdoer”
o Finding of guilt is a formal pronouncement of moral condemnation by entire community against
that individual o Whole society bringing action against individual and is a societal/moral condemnation and stigma
that accompanies the conviction (condemning and stigmatizing individual for their behavior – this justifies the punishment)
Prohibition, Condemnation and Punishment
2 types of Crimes:1. Shall nots – prohibitions (violating requires and ACT)2. Musts – affirmative duties (ex. – taxes, child support, licensing) – (violating requires an OMISSION)
Why are things crimes? 1. Malum in se – things that are obviously harmful to others; evil in and of themselves2. Malum in prohibitum – bad b/c society has decided to disallow it (by statute/law/legislative action),
not b/c behavior’s obviously bad, but b/c of the potential harm to others
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GENERAL PRINCIPLES IN A CRIMINAL TRIAL Criminal Law in a Procedural Context: Trial By Jury
Right to a jury trial: 6th Amendment to US Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”
Most important element is “the right to have the jury, rather than the judge, reach the requisite finding of guilty” in all prosecutions where max potential sentence is greater than 6 months
Rationale/purpose for jury trials:o Guaranteed to criminal defendants in order to prevent oppression by the Government (protect
against arbitrary exercises of power)o Framers of Constitution saw it necessary to protect against unfounded criminal charges brought to
eliminate enemies and against judges too responsive to the voice of higher authorityo Make available to defendants the common-sense judgment of community - accused is entitled to
jury drawn from pool of persons representing cross section of community All federal and most state juries composed of 12 members who must reach a unanimous verdict to acquit or
convict; juries as small as 6 permitted by Constitution State laws permit non-unanimous verdicts by 12 person juries as long as “substantial majority”
Proof of Guilt at Trial 1. “Proof beyond a reasonable doubt”
Due Process Clauses of Constitution (5th and 14th Amendments) require prosecutor to persuade fact-finder “beyond a reasonable doubt of every fact necessary to constitute the crime charged”
Reasonable doubt = prime instrument for reducing risk of convictions resting on factual error May enhance risk that factually guilty people will be set free Rests on fundamental value determination of our society that it is far worse to convict an innocent
man than to let a guilty man go free 2. Enforcing the Presumption of Innocence
Owens v. State (MD) – Drunk in the car in a private drive- A conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.
In cases where there is only circumstantial evidence, the judge and jury must determine that they can fairly draw a guilty inference and reject an innocent inference
The totality of the circumstances must be inconsistent with a reasonable hypothesis of innocence Motions of Directed Verdicts:
o Judges may never direct a verdict for conviction b/c violates ∆’s constitutional rightso Directed verdict of acquittal: when judge determines based on evidence that there must be a
doubt of guilt in a reasonable mind, then he must grant a motion for directed verdict of acquittal (if no evidence to conclude guilt beyond a reasonable doubt)
Presumption of Innocence on Appeal: Standard of Reviewo On appeal factual conflicts are not reexamined, but the question is whether “a rational trier of
the facts could reasonably have reached the result that it did.”
Jury Nullification Definition: when jury in a criminal case ignores the facts and the judge’s instructions on the law
and acquits the defendant despite the weight of the evidence indicating D’s guilt Juries may do this if they believe the criminal statute is immoral or unjust, that the D has been punished
“enough,” or that the police or prosecutors misbehaved. 5th Amendment prevents double jeopardy – govt. may not re-prosecute D once he has been acquitted Ultimately this means jury has raw power to acquit for any reason they choose But should juries be able to nullify law? Should they be informed of this power? State v. Ragland – the power of nullification is available to juries, but the judge is not required to
instruct them on the power; jury nullification is not a right
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CH. 2: Principles of Punishment Justification for punishment Sentencing decisions Goal of proportionality of punishment
Important moral and public policy questions raised by incarceration rates:1. Who and what should be punished? (legislature decides - statutes) 2. Of those whom we do punish, how much punishment is appropriate? (structured sentencing?)3. Do we under-use non-incarcerative methods of punishment?
A. Theories of Punishment 1. Utilitarianism (law and economics)
a. Basic Principle – Punishment is not good, but neither is crime. Society should punish a person if the imposition of that punishment will reduce the net societal pain. Because people do not like pain, individuals will balance the pleasure and pain of committing and act and rationally determine if it is worth the risk. (aim is to augment happiness)
b. Explanation: The utilitarian theory is essentially one of deterrence – punishment is justifiable if, but only if, it is expected to result in a reduction of crime. Punishment must be proportional to the crime, i.e., that punishment be inflicted in the amount required (but no more than is required) to satisfy utilitarian crime prevention goals.
c. Types: i. General deterrence - punishment is imposed not to deter that individual, but in order to
dissuade the community at large to forego criminal conduct in the future (lesson for society)
ii. Specific deterrence - punishment is meant to deter future misconduct by an individual defendant by both preventing him from committing crimes against society by:
1. Incapacitation (Incarceration) – put one in jail where he can’t commit more crimes2. Intimidation - punishment reinforces to him the consequences of future crimes b/c
he will remember the pain suffered and refrain from acting iii. Rehabilitation/Reform – uses criminal conviction to determine why crime was committed
and try to rehabilitate/restore person (Examples include: psychiatric care, therapy for drug addiction, or academic or vocational training.)
d. This theory ONLY looks forward and will punish ONLY if it will result in future good. Will punish potentially innocent persons if it will provide a future deterrence to others.
2. Retributivism a. Basic Principle: a convicted defendant is punished simply because he deserves it (just deserts)
for doing something wrong. There is no exterior motive such as deterring others from crime or protecting society – here the goal is to make the defendant suffer in order to pay for his crime --- criminal gets his just deserts. Lex Talionis – an eye for an eye
b. Explanation: Human beings have free will and can choose to do right or wrong. When they choose to do wrong they deserve punishment b/c they are taking something that he or she doesn’t deserve from society. Punishment is the “payment of debt to society.” Retributive theory assigns punishment on a proportional basis so that crimes that cause greater harm or are committed with a higher degree of culpability (e.g., intentional versus negligent) receive more severe punishment than lesser criminal activity. The punishment is proportional to the crime committed and to the wrongdoer’s personal moral blameworthiness for causing the crime.
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c. Justification: people burden themselves by not committing crimes, by not following desires when it would harm others. Others share burden and all are benefited by less crime. Criminal doesn’t accept these rules w/o reciprocating by burdening himself. Punishment therefore is morally just b/c it gives criminal back moral equilibrium with others.
d. This theory looks BACKWARDS. Looks at what D has done and if he has committed a crime in a morally blameworthy way, he gets what he deserves in the form of retribution. Will punish even if it will do no good.
3. Denunciation (Expressive Theory) – The denunciation theory – which holds that punishment is justified as a means of expressing society’s condemnation of a crime – has both utilitarian and retributive components. Under a utilitarian theory, denunciation is desirable because it educates individuals that the community considers specific conduct improper, channels community anger away from personal vengeance, and serves to maintain social cohesion. Under a retributive theory, denunciation serves to punish the defendant by stigmatizing him.
SENTENCING Determinate v. indeterminate sentencing schemes
1960s most states used an indeterminate scheme that allowed judges considerable discretion and encouraged individualized sentences with possibility of early release if rehabilitative goals satisfied.
MODERN TREND: most states have abolished indeterminate sentencing schemes in favor of determinate schemes.
NC is determinative sentence state o Sentence is determined at time of sentencing o Based on a grid system -- based on offense level (vertical) v. criminal history (horizontal) – each
box contains a different sentence based on these two factorso Legislature sets specific sentence for each crime, but permits a specified higher and lower sentence
(move ‘em up or down) if aggravating or mitigating circumstances are proven (no involvement of parole boards in this system)
o This is a real offense sentencing system (judge decides what was proved and bases punishment on that) – recidivism factored into criminal history
Federal judges must impose sentences in conformity with the Federal Sentencing Guidelines
o Another feature of modern sentencing laws An increasingly common legislative method for limiting judicial sentencing discretion is to enact
“mandatory minimum sentencing statutes” o Statutes provide that when specified circumstances exist in connection with a commission of a crime,
judge is compelled to sentence D to a prison sentence substantially longer than otherwise would be required
o Movement toward mandatory minimum sentences -- > sentencing grid with minimums; can’t go below certain threshold if certain factors are present; some of these rules are incorporated into statutes
Mandatory guideline sentencing vs. advisory guidelines Mandatory – jury must determine if facts support charge in order to determine punishment Advisory – judge has discretion to decide punishment within the grid
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B. Penal Theories in Action 1. Who Should be Punished?
Queen v Dudley – cannibalism; a person may be punished and convicted of murder, despite killing out of necessity
2. How Much (and what) Punishment Should be Imposed? People v Superior Court (Du) (CA 1991)
a. Facts: D was working at convenience store (Empire Liquor Mart). 15 year old victim entered the store, proceeded to where juice was kept, put an orange juice in her bookbag and walked toward the counter. Victim approached counter with money in her hand and D confronted her and accused her of trying to steal the juice. Resulted in a physical confrontation (D pulled on victim’s sweater, victim resisted hitting D in eye with fists. D was thrown to ground, threw a chair and then drew the revolver). As victim turned to leave D shot her in the back of the head from a distance of 3 feet, killing her instantly.
b. Procedural History: Jury found D guilty of voluntary manslaughter, finding that she had intent to kill and that killing was unlawful (neither justifiable nor excusable). Thus, jury rejected the defenses that the killing was unintentional and that D killed in self-defense.
c. Holding: Judge sentenced Du to 10 years in state prison (6 for voluntary manslaughter and four for use of a gun in the commission of a felony), but then suspended the sentence and placed Du on probation.
1. CA Sentencing Standards: require a judge to consider such objectives/factors such as: prior record, legislative purpose, circumstances of the offense, protecting society (incapacitation), punishing D for committing the crime (retributivist), encouraging D to lead a law abiding life (specific deterrence; recidivism), deterring others (general deterrence), isolating D so a similar offense can’t be committed (incapacitation), securing restitution, uniformity in the system (normative goals – uniformity in behavior and treatment -- condemnatory idea that anyone who behaves in certain way will be punished in same way )
2. Court has to overcome presumption against probation due to firearm use under the California Penal Code 1203(e):
a. Statute is aimed at armed criminals b. D has no recent recordc. D participated in crime under circumstances of great provocation, coercion and
duress3. Court also should look to vulnerability of the victim4. Court must ask whether the crime suggested criminal sophistication and indicated D would
be a danger if not imprisoned.d. Important to Remember: Gun had been altered from its original state, trigger pull had been reduced
and safety mechanism did not function properly. Probation report indicated that neighborhood of convenience store was plagued with problems including gangs, drugs and shoplifters.
United States v. Gementera (USCOA, 2004)a. Facts: D pilfered letters from mailboxes along San Francisco’s Fulton Street on May 21, 2001 and
was immediately detained by an observing police officer. b. Procedural History: Was sentenced to two months incarceration and three years supervised release.
Judge also imposed conditions of supervised release including100 hours of community service to consist of standing in front of a postal facility in the city and county of SF with a sandwich board which in large letters declared “I stole mail. This is my punishment.” D filed to remove this condition. Sentence was modified mandating that D observe postal patrons visiting lost or missing mail window, write letters of apology to victims of his crime and deliver lectures at a local school. Also had a scaled down version of sandwich board condition (1 day)
c. Holding: Affirmedd. Important to Note: Court order stresses that goal is not to subject D to humiliation/shame but
instead to create a situation in which public exposure of D’s crime and public exposure of D to his
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victims will serve purpose of rehabilitation of D and protection of public. Wanted to break down D’s thought process that crime was victimless. D claims that will cause him to withdraw from society. Coupled with the fact that he had other conditions like writing letters and lecturing at high schools, these promote his reintegration into society. First seeks forgiveness and then makes contribution to moral formation of youth.
e. The eight-hour condition did not violate the Sentencing Reform Act because the record unambiguously established that the district court imposed the condition not to humiliate the offender, but for the stated and legitimate statutory purpose of rehabilitation and, to a lesser extent, for general deterrence and for the protection of the public. (permissible purpose established by this)
o Utilitarian purposes of deterrence (specific and general) and rehabilitation
f. RULE: Courts and judges have the discretionary power (under statutory grants, such as the Sentencing Reform Act) to fashion punishments in many ways (even non-traditional) as long as the conditions of punishment reasonably relate to the legitimate statutory purpose.
C. Proportionality of the Punishment 1. General Principles - punishment must fit the crime; equality is the guiding principle of public justice;
General object of all laws is to prevent mischief 2. Constitutional Principles
Various provisions of the United States Constitution impose limits on federal and state legislative action. A state legislature is also limited by its own state constitution, which may place greater restrictions on it than does the federal Constitution.
Limits on Federal Action – The “Bill of Rights” restricts the power of the federal government in its relationship to individuals. (Few Constitutional provisions prior to the BoR addressed individual rights)
Limits on State Action – The Fourteenth Amendment to the United States Constitution imposes limits on state government. The 14th Amendment:
(1) prohibits states from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States”
(2) “deprive any person of life, liberty, or property without due process of the law;” or(3) “deny to any person within its jurisdiction the equal protection of the laws.”
8th Amendment – “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” --- > prohibits grossly disproportionate punishment
1910 SC ruled that cruel and unusual punishment clause was not only directed at torture but against all punishments which, by excessive length or severity, were greatly disproportioned to offense charged.
Evolving standards of decency; some SCOTUS justices believe that the death penalty is now sufficiently rare to justify an 8th Amendment prohibition on ito For some justices this meant that you may not impose death penalty for ANYTHING --- now that
has been reconsidered a. Death Penalty Cases – Coker v. Georgia - SCOTUS held that death is grossly disproportionate
punishment for rape of a an adult woman, b/c latter offense does not involve taking of a human life
b. Imprisonment Cases – SCOTUS says there is a “narrow proportionality principle” outside the context of the death penalty. The legislature (not the judiciary) has the authority to determine punishments. Non-capital incarcerative punishment will not be unconstitutional unless there are objective grounds for determining punishment is disproportionate.
Coker v. GA (USSC, 1977) – debating capital punishment in rape case o Facts: While serving sentences for murder, rape, kidnapping, aggravated assault, Coker escaped
from correctional institute on September 2, 1974. That same night he entered Carver house, tied up husband, and then raped and kidnapped wife.
o Procedural History: Jury’s verdict was death by electrocution
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o Holding: Concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.
o Rule: Punishment is excessive and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime
o Reasoning: Two justices argue that death is always cruel and unusual punishment. Plurality argues that this punishment for rape violates the 8th Amendment – a life is not lost and therefore a life should not be taken. Thomas agreed but didn’t want to foreclose the future possibility.
Ewing v. CA (USSC, 2003) – considered his prior record b/c a non-capital offense o Facts: On parole from 9 year prison term Ewing walked into pro shop of golf course and walked
out with 3 golf clubs at $399 a piece concealed in his pants leg. He was apprehended in the parking lot. EXCELLENT – He should be in jail for STUPIDITY
o Procedural History: He was charged and ultimately convicted of one count of felony grand theft of personal property in excess of $400. TC found that Ewing had been convicted previously of four serious or violent felonies for the three burglaries and the robbery in the Long Beach apartment complex. Was sentenced under three strikes law to 25 years to life.
o Holding: Ewing’s sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the three strikes law in CA, is not grossly disproportionate and therefore does not violate the Eighth Amendment’s prohibition on cruel and unusual punishments.
o Reasoning: Ewing’s sentence is justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record. Court first weighs the gravity of his offense. Then includes his long history of recidivism in this process.
Take Away - 8th Amendment does contain some grossly disproportionate limitations on punishment o BUT Legislatures have a lot of leeway to decide what is cruel and unusual and what they deem grossly
disproportionate
CH. 3: Modern Role of Criminal Statutes A. Principle of Legality
Common Law (general principle) – A person may not be punished unless his conduct was defined as criminal at the time of commission of the offense. (No crime without pre-existent law, no punishment without pre-existent law.) (ex post facto – just say no)
Constitutional Element - This prohibition on retroactive criminal lawmaking constitutes the essence of the principle of legality. Legislatures are prohibited by the Ex Post Facto Clause of the Constitution from enacting laws that punish conduct lawful at the time of its commission.
“Nulla Poena Sine Lege” – “no punishment without the law”o How specific does it have to be? o Vagueness - if too vague, then has not provided fair notice
There are three doctrines that balance the roles of the courts and legislatures in making criminal law that relate to the legality principle:
1. Due process and fair notice: Criminal statutes should be understandable to reasonable law-abiding persons. A criminal statute must give “sufficient warning to men of common intelligence as to what conduct is unlawful.” A person is denied due process of law if he is convicted and punished for violation of a statute that lacks such clarity. The doctrine of void-for-vagueness says that legislatures have to explain what they mean and not leave all the work up to the courts.
Due Process – concerns to consider: Notice
o Vaguenesso Unforeseeable judicial enlargement
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Arbitrariness Overbreadth Chilling effect on legal conduct Constitutional Structure Bicameralism/presentment Ex post facto Legislative enlargement Improper delegation, selective enforcement, judicial role
2. Nondiscriminatory enforcement: Criminal statutes should not delegate basic policy matters to police officers, judges, and juries for resolution on an ad hoc and subjective basis. Courts should not create new crimes. (Most states have done away with common law crime)
3. Rule of Lenity: Judicial interpretation of ambiguous statutes should “be biased in favor of the accused” (the lenity doctrine). The rule of strict construction says that if a criminal law is uncertain/ambiguous or it is reasonable to do so, the law should be decided with a slant toward the defendant.
o Will come up last as a defense o Courts don’t look on this favorably
Underlying philosophical principle of our justice system: everything is allowed, unless specifically prohibited
Model Code – The Model Penal Code does not recognize the lenity principle. Section 1.02(3) requires instead that ambiguities be resolved in a manner that furthers the general purposes of the Code and the specific provision at issue.
1. The Requirement of Previously Defined Conduct Commonweath v. Mochan, SCPA, 1955
a. Facts: Mochan was charged with intending to harass, embarrass and vilify Louise Zivkovich and the members of her family by persistently telephoning her various time, during which he referred to her as a lewd, immoral and lascivious woman of an indecent character. Conduct was not prohibited by statute but Section 1101 of PA Penal Code provided that “every offense punishable either by the statutes or common law of this Commonwealth had not specifically provided for by this Act shall continue to be an offense punishable as heretofore.” “Whatever openly outrageous to decency and is injurious to public morals is a misdemeanor at common law” -- Concern that law might have chilling effect on legal conduct, overbreadth – this is always a concern b/c laws might prevent persons from engaging in legally permissible conduct
b. Procedural History: D was tried before a judge and was convicted on both charges. i. Reception statutes – adopts crimes at common law into current statutory scheme, allowing
them to serve as gap fillers. c. Holding: Affirmedd. Reasoning: Commonwealth of Pa v. DeGrange - Whatever openly outrages decency and is
injurious to public morals is a misdemeanor at common law. Updegraph v. Commonwealth - Christianity is a part of the common law and maliciously to vilify the Christian religion is an indictable offense. – Case highlights the difference b/w solicitation and adultery
Keeler v. Superior Court, SCCA, 1970 -- Due Process and Ex Post Facto a. Facts: Couple divorced after 16 years of marriage. At time of divorce, Mrs. Keeler was pregnant by
Ernest Vogt. Keeler was driving on a mountain road when she came upon ex-husband coming in opposite direction who blocked the road with his car, causing her to pull over. He opened her car door, helped her out of the car and then became upset upon seeing her pregnant stomach. He then said he was going to stomp it out of her. He pushed her against the car, shoved his knee into her abdomen and struck her in the face with several blows. Upon regaining consciousness she consulted medical assistance and later delivered a stillborn. 9knee crushed fetuses skull)
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b. CA Penal Code Section 187 – “Murder is the unlawful killing of a human being, with malice aforethought.”
c. Prosecution: viable fetus – could have survived; therefore, human being Defense: definition must come from the common law (or statute), b/c of the Penal Code of 1872
incorporated Penal Code of 1850, which is assumed from common law. Legislative intent incorporates the actual definition, legislative history, and Common law (accepted legal meaning when term adopted, if no actual definition or legislative history, assumption is that the legislature is aware of the accepted common law meanings)
d. Holding: In adopting the definition of murder in Penal Code 187 the legislature intended to exclude from its reach the act of killing an unborn fetus. Find no reported decision of the CA courts which should have given petitioner notice that the killing of an unborn but viable fetus was prohibited by section 187.
e. Dissent: Viability is more satisfactory because it has a well defined and medically determinable meaning denoting the ability of the fetus to live or survive apart from its mother. Notices that the court has a double standard of extending the meaning of human being at one end of the spectrum (close to death) and not on the other hand.
f. Keeler raises questions of:Role of judiciary – making/expanding laws or mere interpretationConstitutional structureBicameralism/presentment
g. Ex post facto problem: Legislative; courts can’t go back and say this now applies to Keeler Judicial enlargement – if judiciary decides that a statute now incorporates a behavior or
definition that did not previously apply, then can’t be applied to current defendant, can only be applied prospectively (otherwise would violate Due Process notion of fair notice) -- enlargement of an existing statute retroactively creates a Due Process problem
CA and other states have inacted new statutes criminalizing feticide.
2. The Values of Statutory Clarity: Vagueness and Fair Notice Basic Principle: There must be fair notice, meaning that the law must be written before the act and be sufficiently clear, so much so that a reasonable law abiding person can figure out what is being prohibited.
In Re Banks, SCNC, 1978a. Statue: Secretly peeping into room occupied by female person. – Any person who shall peep
secretly into any room occupied by a female person shall be guilty of a misdemeanor and upon conviction shall be fined or imprisoned in the discretion of the court.
b. Challenge: Vagueness, Banks’ lawyer informs us that the statute is so vague that no one can tell for sure what behavior is prohibited and what is allowed. It is overbroad.
c. Judicial construction of a statute (narrowing in this case) is proper, appropriate and will save a statute from overbreadth by making it Constitutional; Court shows that it can narrow an overly broad statute and thereby save it and make it applicable only to a certain group of people
i. We are worried about the creepy stalker – this is the person for whom the statute is written – should be clearly tailored
ii. ∆’s defense: the statute covers legal behavior – too broad. Does not clearly delineate “Statute should be void for excessive breadth.”
iii. Court / π: say we look to intent: ill motive is important. Reasonable person - how he would construe it? If ∆ is a baddie, court will look for a narrow construction – save the statute to convict the baddie
iv. After the case, statute was modified and clarified (to narrow it) – Case law insufficient to give public notice; therefore, the “notice problem” lingers “out there.”
v. Aggressive prosecutors can charge based on narrow/tight construction as he sees fit and believes he can make the argument. Facts will likely determine how the court interprets the statute. (Student looking for a friend v. student looking for exam content)
vi. Is how the victim feels relevant? Not in the statute – more a public standard being protected – idea that we “know” the legislative purpose (Gender specification is preposterous – only
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women can be victims of the Peeping Tom statute. – bad message about gender roles. Most agree that it should be changed to “person”)
vii. Court on arguing legislative intent – typical / viable strategy for a court or defendant to argue a given statute’s meaning.
d. Common lawi. History of the statute and how it developed
ii. Circumstances surrounding the subjectiii. To discover: Is it sufficiently definite that we can “know what we are talking about”
(Definition of “peep” to indicate covert, mal-intent helps delineate purpose.)
City of Chicago v Morales, SCOTUS, 1999a. Facts: Chicago’s Gang Congregation Ordinance prohibit[ed] "criminal street gang members" from
loitering in public places. Under the ordinance, if a police officer observes a person whom he reasonably believes to be a gang member loitering in a public place with one or more persons, he shall order them to disperse. Anyone who does not promptly obey such an order has violated the ordinance. The police department’s General Order 92—4 ... [had a provision] providing for designated, but publicly undisclosed, enforcement areas. More specifically, "In 1993, Jesus Morales was arrested and found guilty under the ordinance for loitering in a Chicago neighborhood after he ignored police orders to disperse.
b. Issue: The only issue on certiorari was whether the ordinance was unconstitutionally vague, either on its face or as applied, in violation of "the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.”
c. Holding: The United States Supreme Court held in this case that a law cannot be so vague that a person of ordinary intelligence cannot figure out what is innocent activity and what is illegal. Chicago’s Gang Congregation Ordinance violates due process in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties.
d. Rationale: Justice John Paul Stevens, writing for the plurality, said that the: “ordinance's definition of loitering as "to remain in any one place with no apparent purpose" does not give people adequate notice of what is prohibited and what is permitted, even if a person does not violate the law until he refuses to disperse. "'[A] law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits,'" noted Justice Stevens, "[i]f the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty." The way the statute is written could lead to 1) selective enforcement based on “order to leave/disperse and area”, 2) questions of what is “apparent” and 3) it fails to give sufficient notice. Note: City changed statutory language after this ruling so that it was no longer constitutionally vague!
i. Wainwright v. Stonea. “abominable and detestable crime against mankind and nature with man or beast” –
where are the margins? Are citizens “on notice?”2. Well – we can look at the common law3. But should individuals have to do that? OR should the legislature clarify?4. More applicable if broader, but then we have judges deciding the law. Delegating
the legislative power – goes to selective enforcement problem (Jacksonville loitering statute, which includes walking at night or juggling.) “Franklin Street every Friday and Saturday night.” Law enforcement gets to decide when it “really” “should” apply.
ii. Muscarello v. US: definition of “to carry” weapons, a suggested be in a statute; if π is “carrying” a gun, mandatory minimum +5 years.; need to distinguish whether “on person” or “in vehicle?”
CH. 4: Actus reus 5 Elements of Any Crime
1. Actus reus (That voluntary act must cause social harm. )2. Mens rea – requisite intent to cause the harm
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3. Attendant Circumstances4. Causation5. Harm
A. Voluntary Act Element 1: Defining Actus reus
A crime has two parts: the mental part (“mens rea”) and the physical/external part (“actus reus”). “Actus reus” refers to the physical aspect of the criminal activity. The term has 2 components:
(1) a voluntary conduct/action or legal omission (2) that causes social harm.
Ex. Murder requires a physical result – “result crime” (a dead person). Some crimes, however, don’t require a result immediately caused by your “conduct” (e.g. drunk driving). They may require something called social harm.
A “voluntary act” and “mens reas” are related ---o “mens reas” = the actor’s state of mind regarding the social harm of the offense (must be
blameworthy to constitute mens reas)o Voluntariness = act that caused the social harm
(Ex. If you intend to do something, but don’t intend the harm, this doesn’t constitute “mens reas”)
General Rule – Subject to limited exceptions, a person is not guilty of a crime unless his conduct includes a voluntary act. Few statutes defining criminal offenses expressly provide for this requirement but courts usually treat it as an implicit element of criminal statutes.
Definitions at Common Law: 1. “Act” – An act involves physical behavior. It is a willed muscular contraction or bodily movement by the
actor. (controlled by the mind). It does not include the mental processes of planning or thinking about the physical act that gives rise to the criminal activity (such is the domain of mens rea).
2. “Voluntary” – In the context of actus reus, “voluntary” may be defined simply as any volitional movement. Habitual conduct – even if the defendant is unaware of what he is doing at the time – may still be deemed voluntary. Acts deemed involuntary may include: spasms, seizures, and bodily movements while unconscious or asleep (sleep walking).
NOTE: To be guilty of an offense, it isn’t necessary that every act of D be voluntary, it is enough that his conduct includes a voluntary act at some point in time.
Model Penal Code: MPC does not define “voluntary act” but provides examples of involuntary behavior such as reflexes, convulsions, hypnotic behavior; and/or “a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.”
Constitutional Law: SCOTUS prohibits/has invalidated statutes that criminalize “status” or “condition” (like being a drug user or drunk), rather than conduct
Note: coerced acts are voluntary, but may be acquitted by defense of duress; Possession crimes -- > if possessor procures the article in question and/or fails to dispossess himself of it in a reasonable time after becoming aware it is in his possession, then he has acted voluntarily
Martin v. State, ALCOA, 1944o Facts: Appellant was convicted of being drunk on a public highway. Officers arrested him at his home and
took him onto highway where he committed the acts, manifested a drunken condition by using loud and profane language.
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o Statute: “any person who, while intoxicated or drunk, appears in any public place where one or more persons are present, and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall, on conviction, be fined.”
o Rule: Accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer.
State v. Utter, WACOA , 1971o Facts: Utter and son were living together at time. Son was seen entering the apartment, heard saying “Dad,
don’t” and later seen stumbling into the hallway where he collapsed having been stabbed. Prior to dying he stated that his father had killed him. Utter had been in armed services from 1942 – 1946. Utter remembers drinking with a friend and then being in jail with no recollection of any intervening events.
o Procedural History: TC ruled that conditioned response was not a defense, Utter was convicted of manslaughter
Evidence was introduced regarding a “conditioned response” - defined as “an act or pattern of activity occurring so rapidly, so uniformly as to be automatic in response to a certain stimulus. Utter testified that as a result of his jungle warfare training and experiences in WWII, he had two occasions in which he had reacted violently to being approached from behind.
o Holding: Reversedo Rule: Criminal responsibility is to be judged at the level of consciousness. If a person is in fact
unconscious at the time he commits an act, which would otherwise be criminal, he is not responsible.
B. Omissions (“Negative Acts”) o Basic Principle: People are ordinarily not responsible for their failures to act. Generally people are only
punished for what they do – not what they fail to do, even if that omission endangers another. Ex. Olympic swimmer witnessing drowning child. Unless one is a parent, no duty is owed to rescue
the child. o Only in limited cases does person have a duty to act. Crimes of omission include:
Statutory duties – where a statute creates a duty to act. Ex. Filing taxes. Failure to do so is a crime. Ex. Parent required to provide for children. Failure to do so is a crime.
Duty by Status relationships – such important relationship that duty is created Parent/child relationship Spousal relationship Master/servant
Contractual duty to aid – can be expressed or implied Ex. Babysitter hired to take care of a child in parental absence.
Creates risk of harm to victim and fails to diminish that risk. (risk creation) Ex. Hitting pedestrian with one’s car. Not legally responsible for injuries child has suffered
because are in no way to blame for what happened. Child is now lying on ground and is injured. If left there, he or she might suffer more. A duty is implied here to aid the child b/c created risk of additional harm.
When D does act voluntarily and stops acting, this latter omission will create a duty to continue to act if the failure to act now makes matters worse for victim. (voluntary assumption or seclusion of an individual)
Ex. Stranger drowning in the ocean. Swim in his direction but half-way out have reservations and turn around.
o If no one else is there then turning back might not make matters worse for the victim. Haven’t changed status quo.
o If others are there and decide not to help because you are helping, then the situation is made worse for victim.
o If there is a duty to act under one of these exceptions then it serves as a substitute for a voluntary act.
Model Penal Code – The Model Penal Code is consistent with the common law regarding omissions. Liability based on an omission may be found in two circumstances: (1) if the law defining the offense provides for it; or
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(2) if the duty to act is “otherwise imposed by law.” [MPC § 2.01(3)(b)] The latter category incorporates duties arising under civil law, such as torts or contract law.
o People v. Beardsley, SCMI, 1907 Facts: D was having an affair with Blanch Burns in which both drank excessively and
woman ingested morphine tablets. D knocks morphine out of her hands and then she takes it. D later called a friend to take the woman to a room in the basement occupied by Skoba. D requested that Skoba look after her. Skoba later determined she was dead.
Holding: D assumed either in fact or by implication no care or control over Burns. Rule: Law recognizes that under some circumstances the omission of a duty owed by one
individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter. Must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death.
o Ex. Kitty Genovese Case Facts: Kitty was brutally stabbed outside her apartment building and evidence suggests that
several of her neighbors were aware but no one did anything to come to her assistance. Perpetrator had enough time to stab her and come back to finish the job.
Bystander effect – in 81% of cases in which subjects believed that he or she was the only person who could hear the victim suffering, the incident was reported in a timely manner. Only 31% of the subjects acted promptly when they thought others heard the attack. No one feels responsible.
o Ex. Barber v. Superior Court, CACOA, 1983 (Difference b/w Acts and Omissions) Facts: Deceased Clarence Herbert underwent surgery for closure of an ileostomy. Drs.
Nejdl and Barber were doctors. Shortly after successful surgery, Herbert suffered a cardio-respiratory arrest. He was put on life support and within three days it was determined that Mr. Herbert was in a comatose state from which he was not likely to recover. Tests indicated he had suffered severe brain damage. Family decided they wanted all machines taken off that were sustaining life. Days later Ds ordered removal of intravenous tubes which provided hydration and nourishment.
Important to Note: Two ways to characterize this – they acted by turning off the machine or they failed to act.
Holding: Concluded that the cessation of life support measures is not an affirmative act but rather a withdrawal or omission of further treatment. A physician has no duty to continue treatment, once it has proved to be ineffective.
Proportionate treatment – are the benefits to the patient going to outweigh the burdens attendant to the treatment.
C. Element 2: Social HarmBasic Principle: Harm to whole society, not just victim. By committing a crime, criminals tear fabric of society.
o Look to definition of crime in statute. Look to words of statute that describe physical external acts that we don’t want to have happen.
Ex. Social Harm of Burglary – the breaking and entering of the dwelling house of another at night. Ex. Social Harm of Murder – death of human being by another human being.
o Elements of Social Harm – The social harm of an offense, as defined by statute or at common law, may
consist of wrongful conduct, wrongful results, or both. Moreover, the offense will contain so-called “attendant circumstance” elements.
2 types of social harm offenses: (3 elements of social harm)o Result crimes – law punishes because of an unwanted outcome (specific/resultant harm)
Outcome is called social harm – experienced by society, not just victim (loss of a sense of security)
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For example, murder is a “result” crime, because the social harm is the death of another human being, irrespective of the nature of the conduct that resulted in such death (e.g., whether the death occurred by shooting, stabbing, or poisoning).
o Conduct crimes – law prohibits specific dangerous behavior/conduct, irrespective of any harmful results
Intended to avoid the harm that can result from such conduct if it is not deterred or terminated. (Ex. – Drunk driving)
o Combined “Result” and “Conduct” Elements – Some offenses contain both “conduct” and
“result” elements. For example, a statute may define first-degree murder as the killing of another human (the result) by means of a destructive device or explosive (the conduct).
o Social Harm Result crimes (someone hurt or dead) - Malum in se – things that are obviously harmful to
others; evil in and of themselves Conduct crimes (driving drunk) - Malum in prohibitum – bad b/c society has decided to
disallow it (by statute/law/legislative action), not b/c behavior’s obviously bad, but b/c of the potential harm to others
Attendant circumstances – a condition that must be present in conjunction with the prohibited conduct or result, in order to constitute the crime.
Often an attendant circumstance is an element of the offense, e.g., the crime of burglary – the breaking and entering of the dwelling house of another at nighttime – contains an elemental attendant circumstance that the crime must occur in a dwelling house, of another, at night.
CH. 5: Mens rea A. The Nature of Mens Rea (Element 3: Mens rea)
Definition: Mental state of the actor when actor is committing actus reus. General Rule: There must be a mens rea proven in order to convict a person of a crime.
Caution: Ambiguity – common law used the term in two different ways:1. Culpability Meaning (Broad): A guilty mind, “vicious will, evil mind” – moral blameworthiness. Here it
is sufficient to prove that the defendant acted with a general culpable state of mind, without the need to demonstrate a specific state of mind such as “intentionally,” “knowingly,” or “recklessly.”
Not knowing or lacking the duty to know means you’re not culpable 2. Elemental Meaning (Narrow): D had a particular, specific state of mind which can be found in definition
of the crime. Ex. Burglary – “the breaking and entering of the dwelling house of another at night with the intent to commit a felony therein.”
o This state of mind – the intent to commit a felony therein – no other mens rea will do to be
guilty of this crime. Note: if nothing is specified re: the state of mind (mens rea) in the statue, then use State default meaning
Historical Background: A person could be convicted based solely on actus reus. By 13th century judges decided it was wrong to punish people unless he acted with a mens rea or “a guilty state of mind.” Common law judges didn’t redefine crimes so most only had an actus reus requirement. Crimes had an unspecified mens rea requirement – implied some type of morally blameworthy state of mind. Some, however, did develop a particular specified state of mind (ex. burglary).
US v Cordoba-Hincape, DCNY, 1993Ask if Mens Rea requirement is stated in Statute?
Notion in book is that mens rea attaches to social harm; now we’ve gone beyond that, legislature has to say what it is; If there’s nothing said in statute, then you’re going to your state’s default
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B. General Issues In Proving Culpability: Possible M/R Stated in the Statute (Elemental M/R) – MPC suggests to legislatures that they always specify a mens rea requirement, suggests 4 (doesn’t use word “intentional” – common law term encompassing purposely and knowingly) – all go to state of mind:
1. Purpose – actor’s conscious desire to bring about a specific result 2. Knowledge = awareness that a thing will happen to some degree of legal certainty; or awareness
that a thing or circumstance exists; knowledge = awareness of a high probability When the actor has no desire for the result, but is aware that it will most likely happen Most jurisdictions also permit a finding of knowledge of an attendant circumstance when the
defendant is said to be guilty of “willful blindness/ostrich instruction” or “deliberate ignorance,” i.e., if the defendant is aware of a high probability of the existence of the fact in question, and he deliberately fails to investigate in order to avoid confirmation of the fact. (if he suspects that it exists and purposely avoids learning the suspicion is correct – “Here. Carry this for $$.”)
3. Recklessness = requires you to advert (internally, mentally become aware of) to and ignore/disregard an unacceptably high risk (this is the culpability notion) --- must have been aware of risk and chose to run the risk anyway (conscious disregard – subjective standard) If actor consciously (with awareness) takes a substantial and unjustifiable risk of causing the
particular harm that occurred4. Negligence = when a reasonable person knows or should have known/been aware of an
unacceptably high risk, even if he is not actually aware (inadvertent – objective standard) When the risk-taking “involves a gross deviation from the standard of care that a reasonable
person would observe in the actor’s situation.”_______________________________________________________________________________________Strict Liability – act leads to punishment; must still be a voluntary act; mental component required, but treated as part of act (actus reus) not as a specific mens rea --- don’t care what’s happening in your head
NOTE: under the MPC there must be proof of a M/R that attaches to EACH material element of a crime (under C/L there may be a M/R requirement for one element, but not for any other elements)
Regina v Cunningham, Eng. COA, 1957∆ accused with exposing π to a noxious gas:
unlawfully and maliciously – M/R administer or cause – A/R poisonous / noxious – A/C endanger or inflict grievous bodily harm – (A/R OR) Result or social harm
What is the M/R of the perp? What does he need to have?
Statute requires Recklessness standard? Look to treatise to define malicious: 1) actual intent or 2) recklessness toward/about the harm/endangerment.
What are the elements? A/R = causing or administering or (creating risk – not A/R b/c collapses into harm/result) M/R = maliciously (can be met by P, K, or maybe R) Att/Cirm = noxious substance Result = bodily harm
The Mens Rea Element Culpable vs. Elemental notion --- What is the requisite maliciousness?
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The lower court judge uses the “culpable” notion of mens rea --- “wicked” The appellate court used the elemental notion – could be met by purpose, knowledge, recklessness
Errant jury instruction allowed him to be convicted on general wickedness (stealing the meter). Legal error led to appeal. Never got to determine the ∆’s state of mind – we don’t know if they thought/determined him to be reckless or negligent!
Ambiguous Terms: you must examine these in context to determine legislative intent and how these terms are being used (culpable v elemental)
1. “Intentionally” – A person “intentionally” causes the social harm of an offense if: (1) it is his desire (i.e., his conscious object) to cause the (that particular? He wanted to take the meter but not to harm the woman) social harm; or (2) he acts with knowledge that the (or a?) social harm is virtually certain to occur as a result of his conduct.
The doctrine of “transferred intent” attributes liability to a defendant who, intending to kill (or injure) one person, accidentally kills (or injures) another person instead. The law “transfers” the defendant’s state of mind regarding the intended victim to the unintended one. o The “intent” transfers only when the result of the conduct the actor desires varies in respect to the
identity of the victim 2. “Wilfully” – “Wilful” has been held in different jurisdictions to be synonymous with other terms,
e.g., “intentional,” “an act done with a bad purpose,” “an evil motive,” or “a purpose to disobey the law.” 3. “Malice” – A person acts with “malice” if he intentionally or recklessly causes the social harm prohibited
by the offense.
Categories of MENS REA / Levels of CULPABILITY: Purpose, knowledge, recklessness, negligence / strict liability (no mental state required – If you did it voluntarily - we do not CARE at all what you were thinking)
o P – conscious desire to bring about a particular result in the worldo K – know to a “Reasonable degree of certainty” that a result will occur – blurry line o R – Person must avert to (recognize – become aware of) and choose to ignore a known risko N – If the potential result never crosses your mind – you are negligent – the risk does NOT
occur to the idioto S/L – state of mind irrelevant
How to discern R from N? “Gets sloppy” We tell the jury that they may INFER from an individual’s actions what their mental state was. Burden of Proof? Standard of proof – must prove the element to a jury beyond a reasonable doubt.
People v Conley, ILAC, 1989 --- “Intent” - kid hit in face with bottleAggravated Battery Statute
A/R – making contact/cause injury M/R – intentionally (means purpose here) or knowingly Attendant Circumstance – by any means Result – bodily harm/contact of insulting/provoking
a. Aggravated battery – great bodily harm/permanent disability/disfigurement
∆ argues was not permanent disability (Argument failed)
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that he did not INTENTIONALLY cause a PERMANENT DISABILITY (had to intent (PURPOSE) or reasonably realize (KNOW) – So question is that NO reasonable jury could on basis of evidence conclude that mens rea – Court says that there WAS enough evidence for the jury to conclude intent or knowledge.
Lesser included offenses – when you charge a higher offense, you may be including a lesser offense in that charge; for example, aggravated battery includes a charge of the lesser offense of regular battery, such that if aggravating circumstances are not present, then you can still seek a conviction for simple battery
Facts: Fight at a party. Sean was walking with Marty to his car when someone approached and demanded one of Marty’s beer. Marty refused and Conley attempted to strike Marty with a wine bottle but struck Sean in the face, instead.
Procedural History: D was convicted of aggravated battery defined as “a person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement.”
Holding: Jury could reasonably infer intent to cause permanent disability. Rule: Natural and Probable Consequences Doctrine - Problems of proof are alleviated by the ordinary
presumption that one intends the natural and probable consequences of his actions. Intent can be inferred from the surrounding circumstances, the offender’s words, the weapon used, and the force of the blow. - Reasonable inference based on the facts.
Transferred Intent Doctrine: When a D intends to cause harm to one person but accidentally causes it to another, there is no requirement of an unlawful intent to kill an intended victim. The law speaks in terms of an unlawful intent to kill a person, not the person intended to be killed. MUST be the same type of intent that is transferred in order for this to apply.
Model Penal Code if silent, assumes person acted purposely, knowingly, or recklessly.
Standard of review: could a reasonable/rational jury find the elements present beyond a reasonable doubt? (SUFFICIENCY TEST)
Specific Intent v General Intent (-- doesn’t mean the same thing every time; you MUST determine it from Context) When you see this say: “The term specific intent is generally ambiguous and we must determine its meaning based on context”; then examine each of possible 3 meanings and apply each one that is a possibility
1. Stated M/R – specific Default M/R rule – general
2. Specific = purpose or knowledge General = recklessness or negligence (criminal – this is worse than ordinary negligence)
3. Attendant circumstance you’re aware of or specific result you wanted to bring about = specific Actus intent = general intent
“Specific Intent” and “General Intent”Specific Intent
1) Elemental – needs the intent that is stated as an element in the statute (which specifies the intent that the statute requires. Can be P/K/R/N)
2) Actus + (does the act with some intent – ex: intent to distribute or intent to kill – so it adds a MENTAL STATE as an “attendant circumstance”)
3) Knowledge or Purposefulness required
Catergories 1-3 are not mutually inclusive)GENERAL INTENT – Criminal Negligence through Purpose – and intent enough to convictSPECIFIC (if broken down in the jurisdictions that separate) – Need P or K
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Criminal law is moving toward greater specificity: How do we fit our older statutes into the new, more specific framework.For example:Possession
w/intent to deliver to known minor on school property (knowingly)
The common law distinguished between general intent and specific intent crimes. Today, most criminal statutes expressly include a mens rea term, or a particular state of mind is judicially implied.
[A] Specific Intent – Generally speaking, a “specific intent” offense is one in which the definition of the crime: (1) includes an intent or purpose to do some future act, or to achieve some further consequence, beyond the conduct or result that constitutes the actus reus of the offense,
(E.g. – C/L burglary -- “breaking and entering of the dwelling of another in the nighttime with intent to commit a felony”) – A/R (b&e) is separate from M/R of “intent to commit felony therein”; or
(2) a special motive for committing the A/R of the offense; or (E.g. – larceny – “the trespassory (nonconsensual) taking and carrying away of the personal property of
another with the intent to permanently deprive the owner of the property.”) the act must occur with a specific motive = to permanently deprive another of property
(3) provides that the defendant must be aware of a statutory attendant circumstance Ex. Receiving stolen property with knowledge that it was stolen. To be guilty it is not enough to receive
the property. The person must be aware that what has been received is stolen. This knowledge is the specific intent.
[B] General Intent – An offense that does not contain one of the above features is termed “general intent,” –requires proof of a culpable mental state --- E.g., battery, often defined statutorily as “intentional application of unlawful force upon another.” This is a general-intent crime, for the simple reason that the definition does not contain any specific intent beyond that which relates to the actus reus itself. The only mental state required in its definition is the intent to “apply unlawful force upon another,” the actus reus of the crime. (“intentional” doesn’t fit in any of 3 categories above)
Ex. Rape – sexual intercourse by a male with a female, not his wife, without her consent. No mention of mens rea but every crime presumptively requires a mens rea.
State v. Nations, MOCOA, 1984 -- Knowledge of Attendant Circumstances (“Willful Blindness” Problem) Facts: D owns Main Street Disco, in which police officers found a scantily clad sixteen year old girl
dancing for tips. Statute: He knowingly encourages, aids or causes a child less than seventeen years old to engage in
any conduct which causes or tends to cause the child to come within the provisions of subdivision (1)(c).
Procedural History: D was charged with endangering the welfare of a child less than 17 years old. D was convicted. D argues that state failed to show she knew the child was under 17 and therefore failed to show she had the requisite intent to endanger the welfare of a child less than 17 years old.
Holding: Reversed Rule: A person acts knowingly or with knowledge with respect to attendance circumstances when he
is aware that those circumstances exist. Excludes those cases in which the fact at issue would have been known had the person not
willfully shut his eyes in order to avoid knowing. Willful blindness doctrine – “Ostrich instruction”
o Equivalent of knowledge (and recklessness) in most statutes.
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o The government may prove that D acted “knowingly” by proving, beyond a reasonable doubt, that D deliberately closed her eyes to what would otherwise have been obvious to her. Stated another way, a person’s knowledge of a particular fact may be shown from a deliberate or intentional ignorance or deliberate or intentional blindness to the existence of that fact.
However, in Missouri, the Court rules that the MPC definition of knowledge (awareness of high probability/willful blindness) is not applicable in this case b/c the Court looked to their State’s penal code --- which allowed the court to define “knowledge” as “actual knowledge” --- knowing vs. recklessness
“Willful/Wilful” – 2 meaning word:1. You “willed” the action – voluntary/intentional act = willful, not involuntary
(this would be the lowest M/R) – this form of willful does not require knowledge of the law --- > and thus is a general intent element
2. Awareness of the law with a bad purpose to violate the law – (this requires knowledge of the law --- > thus willful becomes an specific element of the crime )(This is then the highest mens rea – W, P, K, R, N --- S/L)
(Which one of these applies depends on the context)
Criminal Statutory Elements: - A/R: encouraging/aiding/causing Knowingly- M/R: knowingly - A/C: child less than 17 Knowingly- Result: welfare endangered (could also be A/C)
What do you want “knowingly” to attach to? Prosecutor – doesn’t want knowingly to attach to “child less than 17” – just to the
encouraging/aiding/causing Defense Attorney – wants the “knowingly” to attach to “child less than 17” b/c this will be harder for the
prosecution to prove
United States v Morris --- Problems in Statutory InterpretationStatute: “punishes anyone who intentionally accesses without authorization of category of computers…and damages or prevents authorized use of information in such computers, causing loss of $1,000 or more”
A/R: accessM/R: IntentionallyA/C: without authorizationResult: damage/ prevents use
Facts: Defendant was convicted under the Computer Fraud and Abuse Act of 1986, 18 U.S.C.S. § 1030(a)(5)(A), for releasing a worm which caused computers at various educational and military sites to cease functioning. He appealed his conviction and argued the government had to prove not only that he intended the
unauthorized access of a federal interest computer, but that he also intended to prevent others from using it. The court found that the mental state requirement of the statute was enacted to proscribe intentional acts of
unauthorized access.
Issue: Does the statute require the prosecution to prove that the defendant intentionally caused damage to federal computers, or only that the defendant intentionally accessed federal computers and in doing so caused damage (in this case unintentionally)?
Holding: In comparing the statute to its predecessor, the court concluded the "intentionally" standard only applied to the access and not to the damages phrase of the statute.
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Statutory Interpretation used by the Court in this case: (p. 155 in Dressler Black Letter) 1. Plain language – be aware of meaning of words at CL, how terms are used historically, and what is the
dictionary definition of the words/terms a. Definition section in statute – are there definitions that help us understand terms of statute
2. Grammar and punctuation – structure/construction of words 3. Legislative history – intent or the purpose of the legislature in creating the statute 4. Surrounding statutes – do they shed light on the statute in question 5. Prior versions or changes – if the legislature changed the definition of terms on purpose, then must take
that into account (departure from format of predecessor provision of statute) – this is decisive in Morrison6. Constitutional concerns/avoidance/limitations – construe so that there’s NO constitutional concern if we
need to interpret in one way or another 7. Rule of Lenity – when there’s a reading that’s more helpful to the D, then it should apply – in light of this
you should include the “damages” -- BUT court never gets here in this particular case
Note: Normally M/R requirements DON’T attach to attendant circumstances
Example Statute: “Whoever, in any matter within the jurisdiction of any department or agency of the US knowingly makes any false, fictitious or fraudulent statements….is guilty of a felony.”
A/R: making false statementM/R: knowinglyA/C: within the jurisdiction of any department or agency Result: no result required in this statute
What does “knowingly” (M/R) apply to? Only to A/R in this case b/c based on grammar and punctuation interpretation of statute the knowing seems
to apply only to the A/R --- don’t have to know that you are w/in the jurisdiction
Flores-Figueroa v. US Modifier patrol!!
KNOWLINGLY:Transfer, or possess, or use A/RMeans of identification A/R
Of another person A/C (Does knowingly also modify/include “of another person”)
1) Congressional intent2) Plain meaning3) Context4) Difficulty of proof
Role of Mens Rea – Strict Liability exceptions Think about WHY we have it to determine when we might be willing to do without it.
“no excuse” laws – “tiger” equivalent in criminal law: Once you “enter into this sphere” – “it’s on you.” You are on notice, and we will impute to you mens rea if
you cause harm. “responsible relationship to a public danger” – explosives / tigers
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low penalty / regulatory offenses – liquor, food, anti-narcotics, motor vehicles (speeding or parking tickets), building and factory laws.
If PURE s/l; π has no burden whatsoever – just show the act took place.
A/R and A/C M/RBreak General IntentEnter___________________________Dwelling General Intent____________________________Of another General Intent____________________________At night S/L____________________________
Intent to commit a felony therein (specific)
Note: mens rea of each element may vary.
DEFAULT Rules – We assume that the mental state is there via the act itself. MPC default is to import Recklessness into each “gap” (unfilled slot)
(under MPC: can hold to higher standard - if stated in statute, applies to all elements
IF Common Law – S/L to easy for π; Specific intent is too hard; so DEFAULT to “General intent” (unless fits S/L)
So…if:
Statute is silent as to mens rea: Is there a responsible relation? S/L Regulatory?/ Public Welfare? / Low penalty? = S/L Is it an ordinary crime? Default rule is to require Mens Rea
o MPC = Recklessnesso Common Law = General Intent
Lenity?(Even if a mens rea is contained, does the mental state apply to all elements?)
Staples v. USPossession of an unregistered firearm.
Possess knowingly Firearm FIGHT: ∆ wants K; π wants S/L Unregistered knowingly
Facts: AR-15 – replaced selector switch w/ that of an M-16 to give a multiple shot option.
∆ claims that he did not KNOW that the gun could be automatic – says I do not know the gun to be capable of becoming “automatic,” and thus qualifying as a firearm.∆ requests jury instruction: To find ∆ guilty, π must prove: “that the ∆ knew that the gun would fire fully automatically.”
(Start with a jury instruction and work back. Instruction reflects the elements.)21
Judge refuses and gives an S/L instruction. (∆ wanted a knowledge instruction) – Thus the appeal…and SCOTUS agrees with the ∆
B/C the supreme court found guns were NOT a public danger, they now must require mens rea –Should the court have chosen knowledge? “Knew or should have known?”
“If it’s a hand grenade, we are “with you” – if it’s a gun “we are not.” – Category is determinative.
We will assume that “well established” common law crimes imported the mens rea with them. Theft /Larceny – What did the word mean when imported. (See note 1 on 183-184).
Garnett – statutory rape – S/L Being responsible: “it’s on you” if she is 14 (public harm / also old morality)
Conduct Prohibited by Strict Liability Statutes Strict liability offenses are those that lack a mens rea requirement regarding one or more elements of the actus reus. For such statutorily enumerated offenses, the mere proof of the actus reus is sufficient for a conviction, regardless of the defendant’s state of mind at the time of commission.
Strict liability statutes often address so-called “public welfare” offenses. Such statutes are aimed at conduct that, although not morally wrongful, could gravely affect the health, safety, or welfare of a significant portion of the public. Examples include statutes that prohibit the manufacture or sale of impure food or drugs to the public, anti-pollution environmental laws, as well as traffic and motor-vehicle regulations.
Strict liability statutes also regulate other types of conduct against individuals, such as the offense of statutory rape which is aimed at protecting underage females who may be too immature to make knowing decisions about sexual activity. (D can be convicted even if he lacks a culpable state of mind b/c it’s not about his intentional intercourse, but the fact that it was with an underage female (A/C of the crime)
Strict Liability Crimes – don’t require a mens rea . Even if done innocently – it is still a crime. o Began to occur in late 19th century. Became clear to legislatures that there are certain kinds of
conduct that may not be wrongful but exceptionally dangerous. o Ex. Drug manufacturer placing wrong label on the drug. This could cause enormous harm to
consumers. There is nothing morally wrongful about this act, if not done intentionally, but it is excessively dangerous.
o Public Welfare Offenses – exceptionally dangerous acts
Ex. Food and drug laws, traffic regulations (speeding) Nature of Conduct: Generally involve conduct that is not morally wrongful. Typically
involve conduct that is bad only because we have made it a crime. Involve malum prohibitum conduct.
Punishment: Typically involve small/minor punishments (frequently in form of fines). Degree of Social Danger: single violation normally threatens safety of many persons Conviction for violation won’t stigmatize individuals, usually. Because of these factors, legislatures choose not to put mens rea in the statute.
o How do you distinguish one of these crimes from a regular crime that doesn’t state a mens rea requirement but has one?
General Rule: All crimes are supposed to have a mens rea requirement – one is usually inferred.
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If it is clear intent of legislature to do away with mens rea requirement, then a court will allow such a crime to exist. Courts will only infer this with public welfare offenses and only when they contain minor punishments.
o Ex. Staples v. US, SCOTUS, 1994 (see above also) Facts: National Firearms Act imposes strict registration requirements on statutorily defined
firearms. Under this Act, all firearms must be registered in the National Firearms Registration and Section 5861(d) makes it a crime, punishable by up to 10 years in prison, for any person to possess a firearm that is not properly registered. Upon executing a search warrant at petitioner’s homes local police recovered an AR-15 rifle, the civilian version of the military’s M-16 rifle, and is, unless modified, a semiautomatic weapon. The metal stop on this gun had been filed away and rifle had been assembled with an M-16 selector switch and several other M-16 internal parts.
At trial, petitioner testified that the weapon had never fired automatically when it was in his possession, and that he was ignorant of the weapon's automatic firing capability.
o What does Mr. Staples have to know about his gun? -- Does he have to know that his weapon is dangerous (is a M/R required here?)
o Section 5861(d): Statutory elements- A/R: possession of firearm- M/R: --- silence --- - A/C: unregistered;
- “firearm” – (term of art, this term is defined elsewhere in statute to mean something that fires automatically); machinegun: weapon that shoots or can be made to shoot multiple bullets with one pull of trigger
Issue: Did the statute, as written, require proof that the Staples knew the characteristics of his gun violated the Act?
Holding: YES. Reversed because the government did not prove that petitioner knew that the features of his weapon brought it within the prohibitions of the Act.
To convict a defendant under the Act, the Government must prove beyond a reasonable doubt that the D knew what kind of weapon he had and knowingly possessed a weapon that had the characteristics that brought it within the statutory definition of a machinegun.
Rule: Guns in general are not deleterious devices or products or obnoxious waste materials that put their owners on notice that they stand in responsible relation to the public danger. Even dangerous items can be so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation.
Rule: Not a public welfare statute, not S/L, therefore we default to a mens rea requirement -- absent clear indication from Congress to dispense with M/R for felonies, we should retain the M/R requirement
Rule: Where dispensing with mens rea would require a defendant to have knowledge only of traditionally lawful conduct; a severe penalty is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement. In such a case, the usual presumption that a defendant must know the facts that make his conduct illegal should apply.
Mens Rea Purpose Knowledge Specific IntentRecklessness ------------------(willful blindness) General Intent
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Negligence ------ criminal negligence__ ___ ___ S/L
Statutory Silence – what happens in this case? General Intent: criminal negligence and up Specific Intent: purpose, knowledge, GROSS recklessness (high degree of criminal negligence), willful blindness
US v Cordoba-HincapeWhen Statutes are silent, can be:
1) Default: (1) Statutory Default: mens rea (from code/stat language) --- some default to recklessness (2) Common law mens rea - CL default is general intent
OR 2) Strict Liability (silence means no intent required) -- Public Welfare Offenses
High penalties tend to signal that a crime will not be S/L , but no guarantee S/L carries a lower penaltySize of Penalty - if you’re acting knowing you’re doing something wrong then we’re going to punish you more
M/R required
S/L
S/L statutes – can still carry heavy penalties (will not require a mens rea) b/c the activity is so dangerous there’s no reason to have a low penalty (ex – carrying a nuclear weapon around – this is such a public danger that there’s reason to make everyone liable)
BUT, if the penalty is death or life in prison, then NOT S/L S/L – applies to tigers getting out, 2nd dog bites, explosives
DOCTRINES OF MISTAKE – MENS REA AND MISTAKES OF FACT OR LAW 1. Mistake of Fact
A. Common Law – Overview: a D is not guilty of her crime if her mistake of fact negates the mens rea of the offense charged
When does a mistake of Fact get D off? o Common Law Analysis:
Characterize the crime – is it a S/L crime, a specific intent crime, or a general intent crime? If S/L – any mistake of fact is legally irrelevant, D is guilty whether or not she was
mistaken in fact (no proof of M/R required) If SI – a mistake of fact will relieve D if the mistake negates the specific intent element o f
the crime (D either has or doesn’t have the necessary M/R) If it’s a specific intent crime (P/K/R), an honest, resonable mistake of fact will excuse
the crime b/c it negates the required mens rea (if you genuinely (in good faith) think it’s yours then you can’t have a purpose to steal it b/c negates the required intent)
For specific intent crimes, a mistake of fact, if done under good faith belief, will be recognized as an excuse even if the belief is unreasonable (can’t prove specific intent if D lacks a required element of the crime)
General Intent Crimes (P/K/R/N) – the mistake must be an honest and reasonable mistake of fact (if it is unreasonable, then you are guilty)
all that normally needs to be proven is that D committed actus reus with morally culpable state of mind. Common law will ask: was D’s mistake reasonable or
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unreasonable? Generally speaking, a reasonable mistake of fact is a nonculpable mistake of fact – the kind that any one might make. Since a reasonable mistake of fact is nonculpable then D will be acquitted b/c lack mens rea. An unreasonable mistake of fact is morally blameworthy and D has mens rea and may be convicted. Unreasonableness of his mistake constitutes the mens rea.
Ex - “Anyone who takes and carries away property is guilty of larceny” (3 year old takes the orange marker of another under a good faith belief that it is his)
o Run through possibilities – not S/L or public welfare offense; so see if there’s a statutory
default (no); then go to C/L and since no C/L equivalent it defaults to general intent o Will be guilty of general intent crime, but not specific intent crime b/c his belief is in good
faith, but is not reasonable
o Exceptions to Mistake of Fact (for GI crimes): Sometimes courts will find that reasonable mistakes
are blameworthy or morally culpable. 1) Legal wrong doctrine – if the thing you thought you were doing is also a crime (although a lesser
offense), then you can be convicted of the higher offense (the crime you actually committed) – this concept imputes knowledge, b/c what they are doing is wrong as well as what they thought they were doing
2) Moral Wrong Doctrine – if what you thought you were doing is also bad (not illegal, but immoral) then you could be convicted on a moral culpability theory o Although D’s mistake of fact was reasonable, D can still be convicted if conduct violates a
“moral wrong” o Court looks at the D’s conduct through the accused’s eyes (the situation as D believes it to be)
--- thus the D assumes the risk for his conduct if that conduct is immoral (how society adjudges the conduct)
EXAMPLE OF SPECIFIC INTENT – People v Navarro Facts: Defendant was charged with grand theft under Cal. Penal Code § 487(1), after he took four wooden beams from a construction site. Defendant contended that he took them in the good faith belief, that the beams had been abandoned or discarded by the owner.Issue: Should the defendant be acquitted if he had a good faith belief, though it was not necessarily reasonable, that the beams had been abandoned or that he had the permission of the owner to take the property, OR does the belief have to be a reasonable one as well as being in good faith?Crime Definition: larceny is the trespassory (nonconsensual) taking of the personal property of another with the intent to steal Held: court says that the trial court erred in instructing the jury that only reasonable belief could negate specific intent. Specific intent is negated by mere good faith mistake, and reasonableness is not needed.(defendant was entitled to an acquittal even if his good faith belief was objectively unreasonable)
B. MPC Analysis: o No distinction between general or specific intent. o Question will be: does D have the particular mens rea found in the definition of the crime?
i. Every crime in MPC will have some specific mens rea requirement that must be proven. ii. Either mistake negates this state of mind or does not.
iii. Unlike the C/L legal-wrong doctrine, the defense of mistake-in-fact applies to make D guilty of the lesser offense (not the higher offense as at C/L)
2. Mistake of Law
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“Ignorance of the Law is NO Excuse”
A. General Principles – General Rule: knowledge of the law is not an element of an offense, and thus, a mistake of law – even a reasonable (or unreasonable) one – does not ordinarily relieve an actor of liability for the commission of an offense
Rationale: Certainty of law, concern of fraud (could be an excuse for all) and promotes knowledge of the law
Ex. People v Marrero: D arrested for having a loaded pistol in his possession. NY law made this a crime but had an exception for peace officers, defined as a correctional officer of any state correctional facility. Defendant claimed as his defense his personal misunderstanding of the statutory definition of a peace officer based on the definition in the statute/NY law. As it turns out, he was not exempt under this law. Argued that since it was reasonable, this should serve as a valid defense. In this area of the law, law follows utilitarian theory. (Interests of a safe society over insuring that one erring person who mistakenly commits a crime is protected from punishment)
Held: On review, the court concluded that the correctly construed view of the defense of mistake or ignorance should not be recognized except where specific intent was an element of the offense or where the mistakenly-relied-upon law was subsequently adjudicated as incorrect. The court determined that such a rule would ensure procedural due process under constitutionally vague statutes, yet not permit the exception to swallow the rule. The forbidden act of possessing a weapon was clear and unambiguous, and the court determined that the defense of mistake did not apply to the situation because the only mistake was in defendant's understanding.
B. Exceptions to the General Rule: 1. Mistakes that Negate Mens Rea – A D is not guilty of an offense if his mistake of law, whether
reasonable or unreasonable, negates an element of the crime charged (“different law” approach) (when knowledge of the law is an element of the crime; specific intent required -- if you don’t know the definition of the terms/law, then can’t be held liable)
o Example: US v Cheek: D opposed tax laws and failed to pay taxes, claiming that he had been informed that his wages did not constitute “income” under the Internal Revenue Code. Statute made it a crime to willfully violate the income tax laws. It happens that this term under federal tax law has come to mean “a voluntary and intentional violation of a known legal duty.” USSC held that D was entitled to instruction that it D genuinely believed wages were not income, then this negated the element of “willfulness,” in that he didn’t intentionally violate a known legal duty In this case, even an unreasonable mistake of law would serve as a defense.
2. Entrapment by Estoppel (authorized/reasonable reliance) – A person is not guilty of an offense, if at the time of commission, the actor mistakenly believed his conduct fell outside the scope of the criminal law b/c the misunderstanding was b/c he relied on an official statement of the law, later determined to be erroneous, obtained from a person or public body with responsibility for the interpretation, administration, or enforcement of the law defining the offense. (A cop said it was OK)o Reasonable Reliance - you acted in reasonable reliance on an interpretation given by the person
responsible for enforcing the laws o NOTE: a person must be relying on an official interpretation and must come from an institution
with authority—statute, judicial interpretation, administrative ruling (not a private attorney, prosecutor, one’s own knowledge/interpretation)
o Example: if Marrero had gone to the DA and asked him if he could carry his gun and gives him
permission; 2 years later a new DA is elected and interprets the statute differently and wants to put Marrero in jail – this would not be permissible
3. Due Process Clause --- Fair Notice and the Lambert Principle
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A. Common Law – At common law, every one is presumed to know the law. However, in Lambert v. California [355 U.S. 225 (1957)], the Court overturned the petitioner’s conviction for failing to register with the city of Los Angeles as a prior convicted felon, as required pursuant to a strict liability ordinance of which he was unaware; the Court reversed on “lack of fair notice” due process grounds.
Held: The Supreme Court held in Lambert that, under very limited circumstances, a person who is unaware of a duly enacted and published criminal statute may successfully assert a constitutional defense in a prosecution of that offense.
Key to the court’s decision in Lambert was the passive nature of the offense. (No mens rea! And omission rather than an actus)
Namely, (1) it punished an omission (failure to register); (2) the duty to act was imposed on the basis of a status (mere presence in Los Angeles), rather than on the basis of an activity; and (3) the offense was malum prohibitum. As a result of these factors, there was nothing to alert a reasonable person to the need to inquire into the law.
B. Model Code – The Model Penal Code’s fair notice exception [MPC § 2.04(3)(a)] applies where:(1) a defendant does not believe that his conduct is illegal, and(2) the statute defining the offense is not known to him; and was “not published or otherwise reasonably made available” to him before he violated the law.
CH. 6: CAUSATION I. Element 4 = Actual/But-For Causation (Cause-in Fact)
A. General Principles: Link b/w voluntary act and social harm that occurred A person is not the cause of the harm unless two elements have been proven
o D is the actual cause/cause in fact/but-for cause of the harmo D is the proximate or legal cause of the harm
Rule: A person is not guilty of an offense unless she is an actual cause/but-for cause of the ensuing harm (sine qua non)
B. Basic Principle: deciding what happened factually --- who caused the victim’s death?Ask: “But for the defendant’s voluntary act(s), would the social harm have occurred when it did?”
a. “But For” Test: But for the D’s voluntary act or omission, would the social harm have occurred when it did?
i. If yes, D is not actual cause of harm. ii. If no, D is actual cause of harm.
b. Ex. -- A pulls trigger of a gun. B is a terminally ill patient, dying of cancer. B dies 2 minutes later after bullet has struck him.
i. Test At Work: Was A cause of B’s death? But for D’s voluntary act (act of pulling the trigger), would the social harm (death of B) have occurred when it did? (in 2 minutes)?
ii. Answer: No, death would not have occurred in 2 minutes if B had not been shot by A. Presumably B would not have died in 2 minutes but for voluntary act of A shooting B. A is the actual cause of B’s death.
If accelerates death, then this person is the actual cause of the death.
Ex. Oxendine v. State, SC DE, 1987o Facts: Oxendine’s girlfriend pushed Jr. into the bathtub causing microscopic tears in his intestines
which led to peritonitis. Next morning Sr. went into son’s bedroom and began screaming at him to get up. Neighbor heard sounds coming from room of blows being struck, obscenities uttered by a male voice and a child saying “Please stop, Daddy, it hurts.” Then heard a loud thump. Later that day Jr’s abdomen was swollen. En route to hospital, Jr stopped breathing and was pronounced dead
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shortly after arrival. Drs could not deduce which injury caused the death and whether second contributed to the injury of the first.
o Procedural History: Jury was instructed on an acceleration theory - A D who causes the death of another is not relieved of responsibility for causing the death if another later injury accelerates or hastens the death of the other person. Contribution without acceleration is not sufficient. Oxendine was convicted of manslaughter and sentenced to 12 years imprisonment.
o Holding: Reversed, concludes that the evidence upon causation was insufficient to sustain Oxendine’s conviction of manslaughter, but that the evidence was sufficient to sustain his conviction of the lesser included offense of assault in the second degree. State was required to show for purposes of causation that Oxendine’s conduct hastened or accelerated the child’s death and failed to meet this burden.
C. Multiple Necessary/Actual Causes - can have more than one actual cause Ex. – if two people shoot V and V dies faster b/c of both wounds, but V would have died, only
more slowly, with either of the wounds, then both persons are actual causes of V’s death
D. Concurrent/Simultaneous Sufficient Causes - where the “but-for” test will fail to reach a sensible result b/c there are two acts, either one of which if sufficient to cause the resulting harm when it did, occur concurrently (Ex – burning haystacks) The Court will use this test when two or more defendants, acting independently and not in concert with
one another, commit two acts, each of which alone is sufficient to bring about the prohibited result. (SIMLUTANEOUS SUFFICIENT)
Each is a “but-for” cause of death/harm --- the concurrent actions are substantial factors in harm (despite the fact that V would have died when he did as the result of either wound)
Sometimes, courts substitute the “but for” test with the “substantial factor” test.
II. Element 5 = Proximate/Legal Cause 1. General Principles: If a person is a proximate cause of a result, then they are an actual cause of the
result.The issue of proximate cause comes up when there is an intervening force after the D’s voluntary act and before the social harm. Some typical intervening causes are: 1. An “Act of God”
2. An independent act of a third-party – accelerates or aggravates the harm caused by D, or which occurs in an unexpected manner (unforeseeable) 3. An act or omission of the victim that assists in bringing about outcome.
Ex. A is driving at high rate of speed and collides with B, leaving B dead. What is cause of B’s death? A’s excessive rate of speed or B’s presence on the road? A was driving fast b/c wife, C had made him mad. C was angered herself b/c of what she had seen on the Dan Rather news…
o In short, there is not a single actual cause of harm. o In criminal trial, we try to point finger at a particular person. To do this, we have to be able to say
that of all the but-for causes, this particular person deserves to be the one held accountable. o Proximate cause is when we pick out particular person and say that he/she is cause of harm.o Ultimately this is a policy decision. We use proximate cause to obtain what we hope will be a just
outcome. o NO bright lines for determining proximate cause – a judgment of what is fair/just --- > must
consider factors.
2. Analyzing Causation Problems: When analyze, start from moment of D’s voluntary act and end with resulting social harm. Then try to determine if any causal elements occurred in between.
Direct causation: if no causal events or intervening causes in between D’s conduct and social harm. This results in D being both actual and proximate cause.
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Superseding Event – unforeseeable event, an intervening event that may cut off D’s liability Intervening Event – An “intervening cause” is an independent force that operates in producing
social harm, but which only comes into play after the defendant’s voluntary act or omission; e.g., the intervention can occur as a result of wrongdoing by a third party, or as the result of a dangerous or suicidal act by the victim, or a natural force (“an act of God”).
When an intervening cause contributes to the social harm, the court must decide whether such intervening cause relieves the defendant of liability. If so, the intervening event is deemed a “superseding cause” of the social harm.o Exs. - Act of God, earthquake, something done to add to harm, third party intervening.o Have to decide whether to shift responsibility from D to intervening cause and thus let
D off of causal responsibility. (sufficiently foreseeable == intervening, not superseding)
o No bright line rule – only factors!
Types Of Intervening Events (these will also be factors) – Foreseeability of the Intervening Cause o Dependent/Responsive - comes into existence in response to D’s conduct. o Ex. Jones shoots and wounds victim. Victim goes to hospital where doctor botches job and
victim dies. Who is held responsible? Doctor is responsive – is responding to need for medical care. The surgery wouldn’t
have been performed anyway General Approach: when the intervening cause is characterized as responsive, the law
will hold initial wrongdoer responsible for death b/c D brought the intervening act/actor into existence by his own conduct. EXCEPTION: Only time D will get off under responsive cause if it is totally
abnormal and bizarre responsive intervening cause. (unforeseeable) Ex. Doctor decides to strangle victim instead of performing the necessary surgery that
Jones’ victim deserves.o Independent/Coincidental – already existed but D put victim in a place where coincidence
could be acted under. (factor would come into play even in the absence of D’s conduct) o Ex. --- A batters B. B drives to doctor for minor care. While driving a bolt of lightning
strikes and kills B. A is but for cause of death. Lightning bolt is intervening cause – a coincidental cause (it
would have occurred no matter what). General approach: normally coincidental events relieve the original actor of
responsibility unless coincidence was foreseeable. Barring this foreseeability it is a superseding intervening cause.
Other Factors to Consider: o Intended Consequences Rule – jury will look backwards from result until they find an
intent to cause that harm. At this point jury stops looking. Ex. Alice intends to kill Bob. Alice purchases a gun and puts in on a table before
killing Bob. Instead her young son finds the gun and accidentally shoots Bob instead.
ICR would suggest Alice is held responsible.
o Apparent Safety Doctrine – Ex. D Fires a gun at a distance too far away from victim. When bullet falls to
ground, would-be victim is in apparent safety. D’s actions fall out of the picture. Now if anything bad happens to victim, it is not responsibility of person firing the gun.
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State v. Preslar – Husband batters wife. As a result wife walks to parent’s home for safety from her husband. She gets within 100 feet at which point she decides she doesn’t want to bother her parents so she sleeps at the door and decides to notify them the next morning. She dies in the frost. Was D causally responsible for her death? He was actual cause – passes but-for test. She was also an actual cause. Court would say that whatever threat the husband was ended as soon as she left
her home and certainly ended when she reached her parent’s home. She found apparent safety.
o Free, Deliberate, Informed, Voluntary Human Intervening Cause – this is so important that courts shift responsibility from initial wrongdoer to human intervening cause. This is because of free will decision of human being – this ends legal responsibility of earlier parties.
Ex. Preslar case continued. Wife made voluntary decision to sleep outside under very cold conditions.
NOTE: if a subsequent dangerous action causes V’s death as a result of duress, then D is not relived of liability
Omissions – an omission, will rarely, if ever, serve as a superseding intervening cause, even if the omitter has a duty to act
3. MPC 2.03(2b and 3b) – Rough version of proximate cause (concept of culpability). o Requires jury to respond to question of “was the outcome too remote or so coincidental that it
would be unjust to hold the person responsible?” o Unlike the common law, the “but-for” test is the exclusive meaning of “causation” under the Model
Penal Code. The Code treats matters of “proximate causation” as issues relating instead to the defendant’s culpability. That is, in order to find the defendant is culpable, the social harm actually inflicted must not be “too remote or accidental in its occurrence from that which was designed, contemplated or risked. [MPC §2.03(2)(b), (3)(c)]
o In such circumstances, the issue in a Model Code jurisdiction is not whether, in light of the divergences, the defendant was a “proximate cause” of the resulting harm, but rather whether it may still be said that he caused the prohibited result with the level of culpability—purpose, knowledge, recklessness, or negligence—required by the definition of the offense.
o Gives jury an instruction that sets out explicitly the policy issue. In trying to resolve it the jury will have to think about the issue themselves but attorneys can try to provide an answer that look to proximate causation factors listed above.
4. Ex. Kibbe v. Henderson, USCOA 2nd, 1976o Facts: Kibbe and Krall met Stafford at a bar in NY. At the time they met him he was drunk.
Stafford solicited a ride to Canandaigua. Ds offered and the three men left the bar and went to another bar. Ds demanded money and forced Stafford to lower his trousers and remove his boots. Stafford was abandoned on the side of an unlit rural highway. His boots and jacket were placed on the shoulder but his glasses remained in the car. College student, Blake, was driving pick up truck 10 miles over speed limit. He saw Stafford sitting in the middle of his lane but he went into shock and failed to apply his breaks. Stafford suffered massive head and body injuries.
o Procedural History: Kibbe was found guilty of murder, robbery in the second degree and grand larceny in the third degree.
o Holding: The trial judge’s instructions permitted the jury, to disregard Kibbe’s colorable claim that his actions had not caused the death of decedent and thus violated Kibee’s constitutional right to have every element of the crime with which he was charged proved beyond a reasonable doubt.
o Rule: State was bound to prove to the jury beyond a reasonable doubt that appellant evinced a depraved indifference to Stafford’s life, recklessly engaged in conduct that created a grave risk of Stafford’s death, and thereby caused his death.
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The liability of one who put an antecedent force into action will depend on the difficult determination of whether the intervening force was a sufficiently independent or supervening cause of death.
Controlling questions are whether the result was foreseeable to the original actor and whether the victim failed to do something within his grasp that would have extricated him from danger.
PEOPLE v. RIDEOUTMust consider whether there was an intervening cause that superseded the drunk driver (God / third party / victim)
π argues “reasonably foreseeable” for victim to check on their car. ∆ argues – point of safety (“apparent safety doctrine”) AND ∆ chose to enter road (∆’s liability when
decedent chose to leave safety and enter the road. – Victim did it “voluntary human intervention”)
Do direct carry-over of Contributory Negligence or Comparative Negligence from Torts. Folded into the above causes. Rideout could have been decided differently.
Notes 226-228 (factors all discussed in all jurisdictions – but there is no “6-factor” test.
Could say a “but/for” cause ∆ is such a de minimis contributor to social harm that we just let it go. Get what you want? Guilty Omission (CAN cut off proximate cause, according to Myers- ex parental duties) Contrib. Neg. of victim LOOK…on pages
5. Ex. Velazquez v. State, DCOA FL, 1990o Facts: Drag race, upon completing the decided course, decedent turned his car 180 degrees around
and proceeded east toward the starting line and the canal; the D did the same and followed behind. Decedent proceeded in the lead and attained an estimated speed of 123 m.p.h., he was not wearing a seatbelt and he had a BAC of between .11 and .12. Neither driver could stop and Alvarez crashed through guard rail and was propelled over the canal, landing on the far bank, pinned under his car. D landed in the canal and was able to escape from his car and swim safely away.
o Procedural History: Velazquez charged with manslaughter.o Holding: Reversed, the deceased killed himself by his own volitional reckless driving – and,
consequently, it would be unjust to hold the D criminally responsible for his death. o Policy: Policy considerations are against imposing responsibility for the death of a participant on
the surviving racer when his sole contribution to the death is the participation in the activity mutually agreed upon. As long as all participants do so knowingly and voluntarily, there is no point in holding the survivors guilty of manslaughter if the reckless conduct results in death.
6. See State v Rose in Case Briefs as well State v. Rose
Supreme Court of RI - 1973Facts:
McEnery was crossing a street when he was struck by D's vehicle. D stopped momentarily, the body rolled off of the hood, and D immediately drove off. The police found the vehicle 610 feet away with the body wedged underneath it. D was charged with negligent manslaughter and leaving the scene of an accident, death resulting. The court instructed that in order to find D guilty of manslaughter, it would be necessary to find that
McEnery was alive immediately after the impact and that the conduct of the D following the impact constituted culpable negligence?
Procedural History: Trial court found D guilty. RI Supreme Court affirmed the leaving the scene of an accident, reversed negligent manslaughter.
Issues:31
Was there evidence beyond a reasonable doubt that the victim was alive immediately after impact, and, thus, that D was guilty of manslaughter?
Holding/Rule: There was not evidence beyond a reasonable doubt that the victim was alive immediately after the
impact. Thus, D is not guilty of manslaughter. Reasoning:
The medical expert said that he was unsure when death occurred.
CH. 7: CRIMINAL HOMICIDE I. Homicide:
o Common Law and Statutory Homicide Definition– At very early common law, “homicide” was
defined as “the killing of a human being by a human being.” This definition included suicide. o Modern law definition: “the killing of a human being by another human being.”
Suicide, therefore, is no longer a form of homicide in most statutes. Homicide is divided into two crimes with the same A/R – murder and manslaughter.
o Note: Criminal Negligence is homicide committed without justification (self-defense) or excuse (result of insanity)
o Actus Reus Issues When does a person become a human being?
At common law a fetus is not a human being until it is born alive so if it is killed, even if viable at the time of its death, before birth, then it never has become a human being.
Modern law statutes provide a remedy for this common law confusion by looking to viability instead of birth. (minority of jurisdictions)
Ex. Keeler case in which a husband who is separated from his wife, sees her, notices that she is pregnant and tries to stomp the fetus out of her. The fetus dies and man is able to get away with the crime because fetus was not protected at common law as a human being – this would have violated legality rule discussed above.
When does one cease being a human being and become a corpse? At C/L a person was deemed to be dead when there was permanent cessation of
respiration (breathing) and pulsation (heart-beating). Modern technology permits us to keep people artificially breathing and with a beating
heart. Statutes have alleviated this tension and focused on whether the brain is dead and lacking of any activity. Even if heart is beating and breathing is artificial, a person is dead if their brain is dead.
Ex. -- A shoots B in the head. B is unconscious and immediately put on life support. The next day doctors determine that B has a dead brain so they turn off the life support machinery and declare him dead. Who killed Bob?
o In brain death jurisdiction, he can be said to be dead even while on life support b/c his brain was dead. As a result, turning off the life support has no significance b/c B was already dead.
o If in common law jurisdiction, now decision is more complicated b/c B was still alive with doctors turned off life support. Doctors, not just A, have killed B – becomes a causation issue.
Year and A Day Rule At common law, a death that occurred more than a year and a day after the assaultive
act is not considered criminal homicide. Instead it resulted in a death by natural causes. Historical Background: Due to lack of modern medicine, how could you know what
really killed someone if they lingered long after the event. Many states have either abolished it or extended it to a longer period of time.
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o Model Penal Code – A person is guilty of criminal homicide under the Model Code if he unjustifiably and inexcusably takes the life of another human being [MPC § 210.0(1)] purposely, knowingly, recklessly, or negligently. [MPC § 210.1(1)] The Code recognizes three forms of criminal homicide: murder, manslaughter, and (unlike the common law) negligent homicide.
II. MURDERCOMMON LAW: MURDER (Mens Rea Issues) A. Definition: common law murder was defined as “the killing of a human being by another human being with
malice aforethought.” o At common law there were no degrees of murder; all degrees were punishable by death. o Legislatures began to feel that there were some murders that didn’t justify this extreme penalty of
death. PA began to divide murder into degrees. In all cases, first degree carries strictest penalties. 1. Aforethought: reminds us that the actor must think about the killing beforehand (premeditated) and
more recently indicates that the “malicious” state of the D must exist at the time of the killing, not as an afterthought
2. Malice: A person acts with malice if she unjustifiably, inexcusably, and in the absence of any mitigating circumstances, kills a person with any one of 4 mental states:
NOTE: If anyone kills with any of these 4 states of mind, the person has acted with malice aforethought and is guilty of common law murder.
(1) the intent to kill a human being: “Intent” is a subjective form of fault. The prosecutor must prove that the killer purposely or knowingly (with substantial certainty that a result would occur) took another’s life [express malice -- > premeditation and deliberation]
Did you know the person would die?
(2) the intent to inflict grievous bodily injury on another: if actor dies, it still constitutes malice aforethought. Some jurisdictions say that this means injury that imperils life or causes serious bodily injury. Others define it as injury that seriously interferes with victim’s life, health and comfort. This involves implied malice
(3) an extremely reckless disregard for the value of human life (depraved heart murder/abandoned and malignant heart): Utter callousness to value of human life – complete indifference to whether one lives or dies. Modernly, we’d say this is someone acting with extreme recklessness. Person is consciously taking a substantial and unjustifiable foreseeable risk of causing human death and has disregarded it. This involves implied malice
(4) the intention to commit a felony during the commission or attempted commission of which a death results (felony-murder rule)
Felony Murder Rule: a person is guilty of murder if she kills another person, even accidentally, during the commission or attempted commission of any felony. (See below)
Doesn’t matter if it is innocent or intentional. Malice Substitute Ex. Pickpocket picks V’s wallet who has a heart-attack from the shock. The FMR
applies. Want to encourage those who are committing felonies to do so in a manner than doesn’t
threaten human life. Very controversial b/c some jurisdictions believe that it results in disproportionate
punishment. Some jurisdictions have narrowed the rule so that it doesn’t apply to all deaths
occurring with all felonies.
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Common Limitations: a. Inherently dangerous felony limitation – some jurisdictions will only apply
FMR to inherently dangerous felonies. i. What is an inherently dangerous felony? Look at facts of case or crime in
the abstract. (some courts will use particular facts of case) ii. Courts will ask if the offense could be committed w/o creating a “high
probability” of loss of life or without a substantial risk that someone will die? Was there a way to commit crime in non-dangerous way?
b. Independent felony/merger limitation – goal is not to deter felonies, but to prevent D from committing felonies in a violent manner ?????. i. The felony that serves as the predicate for the FMR must be independent of
the homicide (a felony that does not have an independent felonious purpose will merge with the homicide)
ii. Examples of independent felonies: armed robbery – to take property from the victim; rape – sexual intercourse with the victim
iii. Where underlying felony is an assaultive crime then FMR will not apply. (Ex. - assault with a deadly weapon)
iv. In term s of robbery, independent felonious purpose is to take victim’s property so FMR does apply – we would prefer they commit theft not robbery.
v. NOTE: page 309 in Dressler
c. Res Gestae Requirement – A requirement of the felony-murder rule is that the homicide must occur “within the res gestae [things done to commit/during] of the felony,” which requires both:
(1) temporal and geographical proximity – There must be a close proximity in terms of time and distance between the felony and the homicide. The res gestae period begins when the defendant has reached the point at which he could be prosecuted for an attempt to commit the felony, and it continues at least until all of the elements of the crime are completed. Most courts provide that the res gestae of a felony continues, even after commission of the crime, until the felon reaches a place of temporary safety.(2) a causal relationship between the felony and the homicide.
Remember airplane example: deaths had no causal relationship to felony
d. Killing by a Non-Felon - FMR does not apply if person who commits homicide is a non-felon resisting the felony (Note: the victim of the homicide at the hands of the non-felon may be a felon himself or another innocent person) 1. The “Agency” Approach – A majority of states that have considered the
issue apply the so-called “agency” theory of felony murder, which precludes any killing committed during the commission of the felony by a person other than the defendant or his accomplices from serving as the basis for felony-murder. However, a killing by an accomplice can be imputed to others involved in the commission of the felony so that felony-murder can be charged against the non-killers. The felon is only responsible for the homicides committed in
furtherance of the felony, by a person acting as the felon’s “agent”
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This does not include homicides committed by a police officer, felony victim, or bystander. They are all antagonists (not agents)
2. “Proximate Causation” Approach – A minority of courts apply the “proximate causation” theory of felony-murder under which a felon is liable for any death proximately resulting from the felony (shooting D caused), whether the killer is a felon or a third party/non-felon. This makes felon responsible for the death of another. (Sophophone)
3. “Provocative Act” Doctrine – A felon may be held responsible for the death of another at the hands of a third party, if the basis for the charge is not felony-murder, but instead is founded on what is sometimes termed the “provocative act” doctrine, which is simply a form of reckless homicide, e.g., a felon recklessly provokes a victim to shoot in self-defense, killing an innocent bystander.
B. STATUTORY REVISIONS: MURDER Statutory Definition: Many states have divided murder into degrees.
a. PA Modeli. 3 categories of first-degree murder 266
1. Homicides committed in a particular way and they will be enumerated by statutea. Ex. Killing by poison.
2. If person kills during commission or attempted commission of certain enumerated felonies .a. Ex. Arson, robbery, rape.
3. A killing that is “willful, deliberate and premeditated . ” (this is like C/L “intent to kill”) a. Willful – killing was done intentionallyb. Premeditated – think about it beforehand – quantity of time c. Deliberate – measure and evaluate what you are doing – quality of thinking process
i. Last two indicates cold bloodii. Some courts think premeditation can occur in a split second. In these jurisdictions
every intentional killing will ultimately be deemed premeditated and deliberate. (appreciable time vs. no time too short)
iii. In jurisdictions that take these more seriously, premeditation must be more than a split second – long enough to weigh the pros and cons and really deliberate about the killing.
iv. Deliberation requires “cool, calm” thinking
ii. 2 nd Degree Murder – every other type of murder. 1. Consider all types of murder constituting common law murder and if not listed above then they
fall under 2nd degree. 2. The C/L classification of “intent to inflict grievous bodily injury” and “extreme
recklessness/depraved heart” murder fall into 2nd degree murder under Statutory scheme (b/c constitutes Malice Aforethought, but is not W, P, D)
Statutory Approach to the Felony-Murder Rule: o For states that divide murder into degrees, there is often a dual approach to the FMR
1st degree murder = killings that occur during the commission of a crime specifically listed/enumerated (most commonly: arson, robbery, rape, and burglary)
2nd degree murder = a death during the commission of any non-enumerated felonyo The FMR authorizes strict liability for a death that results from the commission of a felony
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Murder under MPC – doesn’t include malice aforethought or degrees of murder. Guilty if D kills someone purposely, knowingly or recklessly under circumstances manifesting an
extreme indifference to value of human life. Note: purposely and knowingly = C/L “intent to kill” (no proof of premeditation/deliberation) Recklessly..extreme indiff in MPC = C/L “grievous bodily injury/depraved heart” --- >
However, MPC requires proof of advertent risk-taking that is substantial and unjustifiable NO FMR – but reckless indifference presumed (inferred by jury, but can be rebutted by evidence
from D) if person causes death during a felony enumerated in the Code (robbery, arson, burglary, kidnapping, felonious escape, or rape)
C. Things to remember --- Other Considerations: 1. Aggravators –
i. Manner of commission -- willful, deliberate and premeditated or lying in wait, by poisonii. Nature of Victim - ex. worse to kill a child than an older person
2. Mitigators – Extreme Mental or Emotional Disturbance or IHOP
III. MANSLAUGHTER A. General Principles – second form of criminal homicide at C/L
1. C/L Definition: “an unlawful killing of a human being by another human being without malice aforethought.”
2. 2 categories of Manslaughter a. Voluntary Manslaughter- at common law these were punished the same but, today this is
treated as a more serious crime. Definition: an intentional killing (intent to kill) committed in “sudden heat of
passion” as the result of “adequate provocation before there has been a reasonable opportunity to cool off”
Elements of the Mitigating Factor: (Provocation Doctrine: Sudden Heat of Passion - IHOP)-- Under common law principles, an intentional homicide committed in “sudden heat of passion” as the result of “adequate provocation” mitigates the offense of murder to voluntary manslaughter. The common law defense contains four elements: (1) D must have acted in heat of passion at the moment of the homicide. “Passion”
has been interpreted to include any violent or intense emotion such as fear, jealousy, and desperation.
(2) D’s passion must have been the result of sudden and adequate provocation. Under the modern approach, it is up to the jury to determine what constitutes adequate provocation. Juries in such cases are typically instructed to apply an objective “reasonable-person” standard.
o Common law felt that someone that was provoked is less culpable.
o Definition : provocation that might render an ordinary person of average
temperament liable to act irrationally and without due deliberation. Suggests one responds out of passion rather than reason (without due deliberation, reflection or judgment).
o Common Law Categories of provocation that would meet this element:
Man observing his wife in act of adultery; discovering one's spouse in the act of sexual intercourse with another.
Observing seduction of one’s daughter. Mutual combat
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Aggravated assault and battery Witnessing injury to one of defendant's relatives or to a third party Death resulting from resistance of an illegal arrest as adequate
provocation for mitigation to manslaughter. Those acts mitigate murder to manslaughter because they create passion in defendant and are not considered the product of free will.
o Words alone, no matter how insulting, never constitute adequate
provocationo Modern Trend: now juries use a reasonable person (objective) standard,
but can consider D’s characteristics (subjective) if they are relevant in measuring the gravity of the provocation, but not to include it in assessing the D’s level of self-control to be expected of a reasonable person
(3) The defendant must not have had a reasonable opportunity to cool off. (4) There must be a causal link between the provocation, the passion, and the
homicide. Ex. Man walks into home and observes his wife in act of adultery with third party. He
becomes enraged and kills wife’s lover.
Note: the Provocation doctrine is a full defense to murder and partial defense overall (D is guilty of M/S)
Rationale:
Partial Justification = the victim, by provoking the killer, partially forfeits right to life by his unlawful conduct; the death of the provoker-victim constitutes less of a social harm than the killing of an entirely innocent person is not an innocent person, but got what they “deserved” (social harm of killing another is mitigated/not as great)
Partial Excuse = (most common characterization today) – the provoker doesn’t deserve to die, but the culpability of the actor is reduced b/c of the provocation (the actor is sufficiently upset (adequately provoked) that their self-control is impaired)
MPC – Manslaughter: o A person is guilty of manslaughter if he:
(1) recklessly kills another (reckless homicide -- > involuntary M/S); 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.” [EMED][MPC § 210.3(1)(a)-(b)]
o The Code does not recognize any form of criminal homicide based on the unlawful-act (misdemeanor-manslaughter) rule. [MPC § 6.06(2).]
o Extreme Mental or Emotional Disturbance – A person who would be guilty of murder
because he purposely or knowingly took a human life, or because he killed a person recklessly under circumstances manifesting an extreme indifference to the value of human life, is guilty of the lesser offense of manslaughter if he killed the victim while suffering from an “extreme mental or emotional disturbance” (EMED) for which there is “reasonable explanation or excuse.” (question for the jury – does the D have a reasonable explanation or excuse for being emotionally overwrought --- > for the EMED, not the homicide)
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The reasonableness of the explanation or excuse regarding the EMED is “determined from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be.” [subjective view]
The concept of EMED is intended to incorporate two common law doctrines: (1) sudden heat of passion (but in a much expanded form); and (2) partial responsibility (diminished capacity).
Diminished Capacity – Murder will be reduced to manslaughter if can show that person killed as a result of diminished capacity.
Only permitted in some jurisdictions.
o The EMED (MPC) manslaughter provision is broader than the common law provocation
defense in the following ways:(1) a specific provocative act is not required to trigger the EMED defense; (no causal connection)(2) even if there is a provocation, it need not involve “an injury, affront, or other provocative act perpetrated upon [the defendant] by the decedent”;(3) even if the decedent provoked the incident, it need not fall within any fixed category of provocations;(4) words alone can warrant a manslaughter instruction; (5) there is no rigid cooling-off rule. The suddenness requirement of the common law – that the homicide must follow almost immediately after the provocation – is absent from the EMED defense.
o Ex. People v. Casassa - girlfriend breaks up with boyfriend, he breaks into her house and waits for her to come home. When she arrives home, she rebuffed him and he killed her.
b. Involuntary Manslaughter - today this is treated as a less serious crime than voluntary Definition: an unintentional accidental killing resulting from the commission of a lawful
act done in an unlawful manner (w/o due caution and circumspection). This is akin to criminally negligent homicide.
o Negligence = when person fails to be aware of a substantial and unjustifiable risk
that circumstances exist or a result will followo The failure constitutes a substantial deviation from the standard of care that a
reasonable person would exercise under the circumstances (gross negligence) Definition: an unintentional killing that occurs during the commission or attempted
commission of an unlawful act (involuntary manslaughter). This type of manslaughter is sometimes dubbed “unlawful-act manslaughter,” or if the killing occurred during the commission of a non-felony, “misdemeanor-manslaughter.”
At C/L there were two types: Criminal Negligence
o Commission of a lawful act which might produce death committed in an unlawful manner or without due caution and circumspection.
Misdemeanor Manslaughter Rule or Unlawful Act Version of Manslaughtero Equivalent of FMRo An unintended homicide that occurs during the commission of an unlawful
act not amounting to a felony constitutes common law involuntary manslaughter.
o At common law unlawful act could mean a morally wrongful act that isn’t criminal. Any morally wrongful act that leads to death, even if unintentional, would amount to involuntary manslaughter.
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o Ex. Car driver non-negligently causes the death of a victim while violating a traffic law.
o Reckless and Criminally Negligent Homicide – A person who kills another recklessly
(and doesn’t manifest an extreme indifference to human life) is guilty of manslaughter. o In a sharp departure from the common law, the Code precludes liability for manslaughter
based on criminal negligence. (this means the D MUST be aware she is taking a substantial and unjustifiable risk) (at C/L can be guilty of involuntary M/S based on inadvertent risk taking)??????
o A criminally negligent homicide – involuntary manslaughter at common law – constitutes the
lesser offense of negligent homicide under the Code. [MPC § 210.4]o NOTE: there is no “unlawful act” or MMR
o If a person kills another person, MPC drops this to lower crime of negligent homicide
PEOPLE v. EULOIs about defining DEATH – with respect to the crime of murder.Common law has always said that death is the cessation of function of the heart and lungs
Legality principle argument – But counter = getting consent to turn off the machines IS FORESEEABLE so ∆s remain the but for cause, even if we go with the original. (year-and-a-day rule)
Court: looks at other states (statutes) Kansas - πMedical practice (experts) - πCommon law - ∆Other statutes in OUR jurisdictionsLegislative INTENT – what did the leg intend at the time that the statute was passed? (heart/lung) – so …∆ (why haven’t the legislature changed the statute? ∆ will say b/c they do not want to
include brain def of death. Π will say that “death” means whatever the court says – current def – so the statute does not NEED to be changed! Already covers death!
Murder Cases - Intentional Killings - Premeditated or “with malice aforethought”Ex. State v. Guthrie, SCOAWV, 1995
o Facts: D and decedent were both at work together as dishwashers and D was in a bad mood. Farley told him to lighten up, snapped him with a dishtowel, which flipped D on the nose and left him enraged. D removed knife from his pocket and stabbed co-worker in the neck and killed him. D had host of psychiatric problems including panic attacks, chronic depression, body dysmorphic disorder and borderline personality disorder.
o Procedural History: Jury verdict found D guilty of first degree murder When this case was tried, “twinkling of an eye” was standard for amount of premeditation.
(Note: Twinkle of an eye is still enough for premeditation in NC. )o Holding: Reversed, Schrader definition of premeditation and deliberation is confusing, if not
meaningless. To allow the state to prove these elements by showing that the intention came into existence for the first time at the time of the killing eliminates the distinction between the two degrees. There must be some evidence that defendant considered and weighed his decision to kill to establish premeditation.
o Rule: Premeditation and deliberation characterize a thought process undisturbed by hot blood…should be long enough to afford a reasonable man time to subject the nature of his response to a “second look”
o Rule: There must be some evidence that the defendant considered and weighed his decision to kill in order for the state to establish premeditation and deliberation under our first degree murder
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statute. This is what is meant by a ruthless, cold-blooded, calculating killing. Any other intentional killing, by its spontaneous and nonreflective nature, is second degree murder.
Ex. Midgett v. State, SCAR, 1987o Facts: Ronnie Jr. had been abused by brutal beatings over a substantial period of time. Sister
testified that father had been drinking whiskey and she witnessed him hitting Ronnie Jr. on the stomach and the back. Autopsy results revealed that Ronnie Jr. was poorly nourished and under-developed and that he died from an intra-abdominal hemorrhage caused by a blunt force trauma consistent with having been delivered by a human fist.
o Procedural History: Jury convicted D of first degree murder. o Holding: There was no evidence of the premeditated and deliberated purpose of causing the death
of another person necessary for conviction of first degree murder. Evidence was sufficient to sustain a conviction of second degree murder as the appellant was shown to have caused his son’s death by delivering a blow to his abdomen or chest with the purpose of causing serious physical injury.
o To show that a defendant acted with a premeditated and deliberated purpose, the state must prove that he (1) had the conscious object to cause death, (2) formed that intention before acting, and (3) weighed in his mind the consequences of a course of conduct, as distinguished from acting upon sudden impulse without the exercise of reasoning power.
o Rule: To be guilty of premeditated first degree murder a defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. Perhaps the best that can be said of "deliberation" is that it requires a cool mind that is capable of reflection, and of "premeditation" that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing. Premeditation and deliberation which are instantaneous, or which take no appreciable time, destroys the statutory distinction between first and second degree murder.
Ex. State v. Forrest, SCNC, 1987o Facts: D admitted his critically ill father to Moore Memorial Hospital. Father was suffering from
numerous serious ailments, including severe heart disease, hypertension, a thoracic aneurysm, numerous pulmonary emboli, and peptic ulcer. By the morning, his condition was determined to be untreatable and terminal. D went to hospital to visit his father and shot his father. Following the shooting he was crying and upset but neither ran nor threatened anyone.
o Procedural History: Jury found him guilty of first degree murder. o Holding: Affirmed, there was substantial evidence that the killing was premeditated and deliberate. o Rule: Circumstances to be considered in determining whether a death was committed with
premeditation and deliberation include: want of provocation on part of deceased, conduct/statements of D prior and following the killing, threats and declarations of D during course of occurrence giving rise to death, ill-will or previous difficulty between parties, evidence of a brutal killing, nature and number of victims.
Manslaughter Cases - Intentional Killings Ex. Girouard v. State, COAMD, 1991
o Facts: On night of Joyce’s death, Steven overheard her talking on the phone and telling a friend that she had asked her first sergeant for a hardship discharge b/c her husband didn’t love her any more. He asked her what she meant by it, she said nothing and then he walked to the bedroom. She followed him, stepped on his back, pulled his hair and proceeded to verbally berate and attack him, claiming that she never wanted to marry him, she wanted a divorce, their marriage had been a mistake, she had filed charges for abuse, etc. He then left the room with his pillow, went to the kitchen to get a knife and returned to the conversation. When asked what he would do about it, he lunged at her and stabbed her 19 times.
o Procedural History: Witnesses testified to his psychological trauma, claiming that he was out of touch with his own capacity to experience anger or express hostility and that he had reached his limit of his ability to swallow his anger. He was convicted of second degree murder and was sentenced to 22 years incarceration, 10 of which were suspended.
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o Holding: Affirmed, words alone are not adequate provocation. Words spoken by the victim, no matter how abusive, fall into a category society should not accept as adequate provocation. Words can only constitute adequate provocation if they are accompanied by conduct indicating a present intention and ability to cause the D bodily harm
o Rule of Provocation: 1. There must be adequate provocation; (was not)2. The killing must be in the heat of passion; 3. It must be a sudden heat of passion; the killing must follow the provocation before there is a reasonable opportunity for the passion to cool; and 4. There must be a causal connection between the provocation, the passion, and the fatal act.
Unintentional Killings - Unjustified Risk TakingEx. Berry v. Superior Court, CA COA, 1989 (2nd degree Murder)
o Facts: James Soto was killed by a pit bull dog named “Willy” owned by D. Dog was tethered near D’s house but no obstacle prevented access to the dog’s area. Victim lived in a house which stood on the same lot, sharing a common driveway. Child’s mother left him playing on the patio while she went into the house. When she came out, the child was gone. There was considerable evidence that he was bred and trained to be a fighting dog and that he posed a known threat to people.
o Procedural History: Berry was charged with murder of 2 year old James Soto o Held: The court noted that petitioner exhibited an extreme indifference to the value of human life
because he knew that his neighbors had four small children, and he knew that the dog was dangerous to the children, yet the dog was accessible to them.
o RULE: The test of implied malice in an unintentional killing is actual appreciation of a high degree of risk that is objectively present. The requirements of implied malice include wantonness, an extreme indifference to the victim's life, and subjective awareness of the very high probability of his or her death.
Ex. People v Benitez (see case brief)
Unintentional Killings - Unjustified Risk Taking --- Involuntary ManslaughterEx. State v. Hernandez, MO COA, 1991
o Facts: Cecil Barrymore was killed as a result of a car accident. D revealed that prior to the accident he had drunk a 12-pack and some whiskey. Materials covered in drinking slogans were submitted into evidence over D’s objections.
o Procedural History: D was found guilty of involuntary manslaughter and received imprisonment for a term of seven years.
o Holding: Reversedo Rule: Criminal Negligence - A person acts with criminal negligence or is criminally negligent
when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.
o Reasoning: State attempted to use drinking slogans to prove that D knew of the effects of alcohol upon him – which was irrelevant.
o Statutory Language: Criminal negligence is conduct which amounts to a gross deviation from the standard of care which a reasonable person would exercise in the situation. (least culpable mental state)
Ex. State v. Williams, COA WA, 1971o Facts: D husband is a 24 year old Indian with a 6th grade education; D wife is a 20 year old part
Indian with a 11th grade education. Child had abscessed tooth that had been allowed to develop into an infection of the mouth and cheeks, eventually becoming gangrenous. Lead to malnutrition and pneumonia. Dr. testified that the infection had likely lasted for 2 weeks and that the odor associated with gangrene would have been present for 10 days before death.
o Procedural History: Ds were charged with crime of manslaughter for negligently failing to supply their 17-month old child with necessary medical attention, as a result of which he died.
o Holding: Affirmed
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o Statutory language: Wash. Rev. Code § 26.16.205 imposes civil liability on parental property for the expenses of their family and education of their children which includes necessaries. Necessaries encompass necessary medical expense of dependent minor children which it is the duty of a parent to provide. On the question of the quality or seriousness of breach of the duty, at common law, in the case of involuntary manslaughter, a breach must amount to more than mere ordinary or simple negligence. Gross negligence is essential. In Washington, however, Wash. Rev. Code §§ 9.48.060 (amended by ch. 49, 1970 Wash. Laws 2) and 9.48.150 supersede both voluntary and involuntary manslaughter as those crimes are defined at common law. Under these statutes, the crime is deemed committed even though the death of the victim is the proximate result of only simple or ordinary negligence.
o Rule: Common law natural duty of parental duty to provide medical care for a dependent minor. If child would have died before duty arose then their breach did not cause the death. If it arose after, then their breach of duty did arise. Ordinary caution is the kind of caution that a man of reasonable prudence would exercise under the same or similar conditions. If, therefore, the conduct of a defendant, regardless of his ignorance, good intentions and good faith, fails to measure up to the conduct required of a man of reasonable prudence, he is guilty of ordinary negligence because of his failure to use ordinary caution. If such negligence proximately causes the death of the victim, a defendant is guilty of statutory manslaughter.
Unintentional Killings – Unlawful Conduct: Felony Murder RuleEx. People v. Fuller, CACOA, 1978
o Facts: Broke into four vans and stole four tires. This action constitutes burglary. Following they fled to avoid arrest and in the process they killed someone.
o Holding: The FMR applies and respondents can be prosecuted for first degree murder.o Rule: All murder which is committed in the perpetration of, or attempt to perpetrate, arson, rape,
robbery, burglary, mayhem, or lewd acts with a minor is murder of the first degree. This statute imposes strict liability for deaths committed in the course of one of the enumerated felonies whether the killing was caused intentionally, negligently or merely accidentally.
Ex. People v. Howard, SCCA, 2005 - The Inherently Dangerous Limitation o Facts: Tahoe without a rear license plate was signaled to pull over and failed to do so. During
course of police chase, several traffic regulations were ignored and resulted in death of Jeanette Rodriguez due to car accident.
o Holding: Second degree felony rule does not apply o Rule: Long-established decisions holding that the rule applies only to felonies that are inherently
dangerous in the abstract. The felony as written is not inherently dangerous. Ex. People v. Robertson, SCCA, 2004 – Felony-Murder Rule and Merger Doctrine
o Facts: Defendant convicted of a second degree murder and assault by means of a deadly weapon. He shot two (one wounded, one killed) people trying to steal parts of his car. The defendant claimed that he shot in the air and did not intend to inflict any injuries to the two men. D argued that the felony-murder instruction was precluded by the merger doctrine
o Issue: Was there an error in instructing the jury on second-degree felony murder based upon the predicate of discharging a firearm in a grossly negligent manner?
o Holding: The court held that the merger doctrine did not preclude the application of the felony-murder rule under the facts of the case.
o RULE: Felony-murder instruction is not proper when the predicate felony is an “integral part of the
homicide” and when, under the prosecution’s evidence, it is included in fact within the offense charged.
o RULE: Merger doctrine does not apply when death results from D’s commission of a felony with
an independent purpose, that is, when the felony that provides the basis for the F-M conviction “was not done with the intent to commit injury which would cause death.” (for the FMR to apply, the felony must be independent of the killing; otherwise the felony and homicide are merged and the D cannot be charged with felony-murder, but only a lesser crime of manslaughter/felony)
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Ex. State v. Sophophone, 2001 – Killings “in the perpetration” or “in the furtherance” of a felonyo Facts: Ds had been breaking into house and when police appeared both perpetrators tried to escape.
D was handcuffed and placed in car at time death of other felon occurred. o Holding: Reversed, it appears that to impute the act of killing to Sophophone when the act was the
lawful and courageous one of a law enforcement officer acting in the line of his duties is contrary to the strict construction we are required to give criminal statutes.
o Rule: Agency Approach – majority rule is the felony-murder doctrine does not apply if the person who directly causes the death is a non-felon.
It follows that a co-felon cannot be convicted of the homicides because the primary party was not the person with whom she was an accomplice.
o Proximate Causation Approach – felon may be held responsible under the felony-murder rule for a killing committed by a non-felon if the felon set in motion the acts which resulted in the victim’s death.
Issue is one of proximate cause: if an act by one felon is the proximate cause of the other homicidal conduct by the non-felon or the police officer, murder liability is permitted.
CH. 11: ACCOMPLICE LIABILITY - LIABILITY FOR THE CONDUCT OF ANOTHER 1. General Rule: Criminal law only holds people responsible for their own actions. Doesn’t account for
vicarious liability. 2. Complicity – under some circumstances people will be held responsible for actions of another.
o Accomplice Liability – Accomplice law makes an accomplice accountable for actions of a perpetrator so that accomplice is not guilty of (a separate crime of) aiding and abetting, but is instead of the other person’s (the principal’s) crime, itself.
Common law – One is an accomplice in the commission of an offense if he intentionally assists another to engage in the conduct that constitutes the crime. Accomplice activity may include aiding, abetting, encouraging, soliciting, advising, and procuring the commission of the offense.
Accomplice liability is derivative in nature. In general, the accomplice may be convicted of any offense committed by the primary party with the accomplice’s intentional assistance.
Model Penal Code – The Code rejects the common law natural-and-probable-consequences rule. Thus, an accomplice may only be held liable under the Code for acts that he purposefully commits.
Question: Under what circumstances does one derive criminal liability from actions of another? What does it take for one to become sufficiently involved in a crime that we can say he/she will be held responsible for the crime?
Common law terms that governed accomplice liability: Principal: 1st degree – one who, with the mens rea required for the commission of the
offense: (1) physically commits the acts that constitute the offense; or (2) commits the offense by use of an “innocent instrumentality” or “innocent human agent.” (m/r, a/r, etc) o The innocent-instrumentality rule provides that a person is the principal in the
first degree if, with the mens rea required for the commission of the offense, he uses a non-human agent (e.g., a trained dog) or a non-culpable human agent to commit the crime. (Bailey v Commonwealth (Murdock))
o Note: with Innocent Instrumentality – the behavior must be foreseeable - if you
act through innocent instrument and the result was foreseeable, then won’t hold the innocent agent responsible
Ex – you give a cup of poison to a 7 year old and tell him to take it to his grandmother – you are liable, not the 7 year old
Husband who provokes a mentally ill (paranoid) friend to kill his wife.
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Though on the surface he has committed no crime – he is a PRINCIPLE! “innocent instrumentality” doctrine
∆ argues: Not the proximate cause Murdock was a superseding cause Police did it
Crime: involuntary manslaughter (mens rea is negligence)So…no accomplice liability – one’s own conduct creates the culpability
Bailey is very drunk – so problem w/his mens rea. Only have to get negligence for involuntary manslaughter.
INNOCENT INSTRUMENTALITY id NOT DERIVITIVE – We do NOT need a principle; ∆ IS the principle. UNLIKE accomplice liability…
Principal: 2nd Degree – (aider and abettor) criminally responsible for actions taken by principal in the 1st degree; present at the scene – assists but doesn’t perpetrateo Actually or constructively present AND (i.e. – lookouts and getaways)
o Aid, alert, command, counsel, procure, encourage
Accessory: before the fact1) Aid, alert, command, counsel, procure, encourage 2) BUT NOT actually or constructively present
a. Ex – If you leave poisoned cupcakes and then leave the scene, then you’re constructively present b/c your prior behavior placed you there (not there when the crime happens)
Accessory: after the fact o One who, with knowledge of another’s guilt, intentionally assists him to avoid
arrest, trial, or conviction o The conduct of the accessory after the fact occurs after the completion of the
crime. o Many states have done away with this category and have replaced it with
misprision, aid in helping flee o If an accomplice is involved prior to the completion, i.e., up to the point when the
principal in the first degree has reached a place of temporary safety, the accomplice is in fact a principal in the second degree.
o Today, nearly all jurisdictions treat the offense of accessory after the fact as
separate from, and often less serious than, the felony committed by the principal in the first degree.
Principals in 1st and 2nd degree can be independently convicted (tried in different trials) Not true at common law for accessories At C/L the principal must be convicted for the accessory to be tried and could not be convicted of a
more serious offense than principal ??? Modern Law – accessory can be tried and convicted separately from the principal in 1st degree
o Majority rule is that a conviction (or even a prosecution) of the principal in the first
degree is not a prerequisite to the conviction of a secondary party.o An accomplice or accessory may be convicted of a more serious offense than is proved
against the primary party. 44
All 50 states have a statute that abolishes distinction b/w principals in the 1st and 2nd degree for punishment of certain crimes – accessories before the fact are principals
Modern Day: will say we have a principal and an aider and abettor (accessory)
3. What makes a person an accomplice?
Lauria – knew prostitutes were using his answering service “stake in the venture”? intent by sale/participation to “further, promote, and cooperate in?” volume grossly disproportionate to norm? dangerous crime?
A. ACTUS REUS ------- Acts Giving Rise to Accomplice Liabilityo Common Law --- Types of Assistance – An accomplice is a person who, with the requisite mens
rea, assists the primary party in committing an offense. Generally speaking, there are three basic types of assistance:
(1) assistance by physical conduct (e.g., furnishing an instrumentality to commit an offense, “casing” the scene in advance, locking the door to keep an assault victim from escaping, or driving a “getaway” car from the scene of the crime);(2) assistance by psychological influence (e.g., incitement, solicitation, or moral encouragement); and [if one solicits another to a crime]
Can be an accomplice even if it can be shown that perpetrator would have committed the crime without that assistance. There doesn’t have to be a causal connection between assistance and completion of the crime. It is enough that accomplice has helped in some minor/trivial way. (but he must ACT)
(3) assistance by omission (if there exists a duty to act). A person is not an accomplice simply because he knowingly fails to prevent the commission of an offense, but such failure to act may serve as a critical factor in determining that he assisted by psychological influence. (can be liable if one didn’t act in order to allow crime to occur)
o Amount of Assistance Required – A person is not an accomplice unless his conduct (or omission)
in fact assists in the commission of the offense. However, the degree of aid or influence provided is immaterial; even trivial assistance suffices. Furthermore, a secondary party is accountable for the conduct of the primary party even if his assistance was causally unnecessary to the commission of the offense. DID IT AID IR ABBET AT ALL? If yes, then 2 is an accomplice. Congrats.
NOTE: you must actually act/aid to be guilty of accomplice liability (must act affirmatively to aid the person committing the crime)
o Wishing will not suffice
o Note: there’s a difference b/w aiding and attempting to aid – if you’re only attempting, but you
don’t succeed, then you’re not an accessory Is attempt to aid ni the commission of…a crime???o If a person believes that your prayers will help them, then arguably you have aided/abetted the
crime b/c they are more likely to commit it than they otherwise would be ACTUS REUS -- very little A/R is required to be guilty of the entire crime
NO CAUSATION REQUIREMENT – there is no causation requirement necessary to convict someone as an accomplice (only the requirement that you attach yourself to the guilty behavior of the principal)
o Ex. – Wilcox v Jeffrey – knows man is in the country illegally to play sax without a visa and aids him
o The law does not require a “but-for” causal connection b/w assistance and the crime
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o If it sufficient to make the commission of a crime slightly easier or to offer encouragement o Audience did not have requisite mental state
MERE PRESENCE RULE – generally not enough! (State v Vaillancourt) RULE: Mere presence (and/or knowledge) at the commission of a crime, is not sufficient to make you an accomplice; you must do something more than watching a person commit a crime to show that you were aiding/encouraging behavior (affirmative act required)
If you aren’t actively doing something then not an accomplice If you accompany with intent to render aid and person you are accompanying knows you’re
there to render aid, then you are an accomplice BUT, if other person doesn’t know that you’re there to render aid or you don’t provide aid, then
you are merely present (you must in fact aid to be guilty) It must be more than mere presence, it must actually encouraged the behavior of committing the
crime (you must tie the behavior of the independent actors together) General Rule – you cannot be guilty of attempting to aid The fine line is: Does the other person know that you are willing to help them? – this
distinguishes presence from aid/acting as accomplice Mere Presence + Flight --- does NOT equal commission of the crime OMISSIONS – normally you can’t be held liable as an accomplice for an omission, unless you
had a legal duty to act and did not (failed to prevent a crime)
State v HelmensteinWhat is the Rule in this case?
The testimony of the accomplices alone cannot render you guilty of a crime The testimony of an accomplice does not warrant a conviction unless it is corroborated by
other evidence to connect the defendant with the offense. Corroboration is not sufficient if it merely shows commission of offense or circumstances.
All accomplices so no one is guilty!!! TRICK – since all are accomplices – easy to be an accomplice = when another witness is
available, then ALL are GUILTY. ???? Are all conspirators = accomplices?
B. MENS REA What is the intent you must possess? “Dual intent” – must prove two things:
1) Must prove intent to aid behavior that constitutes the crime (purpose or knowledge) (must share the intent to commit/aid/abet the crime)
2) Must have specific M/R for the crime (if the M/R is negligence and you are negligent, then you are guilty) (must have same M/R as the principal in the 1st degree)
C. Different approaches in different statesa. Purpose – M/R for the crime – (Echols – minority rule) b. Purpose or knowledgec. w/ M/R required for crime itself --- can be a negligence crime or a recklessness crime
(Riley – majority rule)
Some states require higher M/R b/c the accomplice didn’t commit the act, but only aided If you’re negligent and you have the intention to aid the behavior, then under the majority rule the accomplice is guilty
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Example - Leaving gun on the playground = intention to aid behavior and negligent in leaving the gun
o Model Penal Code – The Code person resolves the common law ambiguity as to whether
complicity requires purpose or mere knowledge of the consequences of their conduct. Under the Code, accomplice liability exists only if one assists “with the purpose of promoting or facilitating the commission of the offense.” [MPC § 2.06(3)(a)]
o Accomplice liability may also be found in cases involving recklessness or negligence when
causing a particular result is an element of a crime:(1) he was an accomplice in the conduct that caused the result; and (2) he acted with the culpability, if any, regarding the result that is sufficient for
commission of the offense. [MPC § 2.06(4)]
Natural and Probable Consequences Doctrine – no INTENT Required --- > takes accomplice liability much further (This is the MAJORITY RULE)
Common Law Rule: If person intentionally assists in one crime and another occurs as well, then one is guilty of the second crime if it is a natural and probable (foreseeable) consequence of the first crime.
1) Principal commits crime 1; Accomplice aids crime 1 w/appropriate M/R2) Principal commits crime 2 3) If crime 2 is a natural and probable consequence of crime 1, then accomplice treated as
committing crime 2 as well 4) THUS, you are responsible for murder, if the natural and probable consequence of robbery is
murder (Example is State v Linscott) MUST prove initial accomplice liability (for crime 1) in order for accomplice to be guilty of
crime 2 under N&P consequences NOTE: only applies in SOME jurisdictions
4. LIMITS on Accomplice LiabilityA. Generally:
Crime must have been committed – a principal must exist and commit a crimeGENOA – cop fames drug dealer to give 10K for non-existent cocaine
accomplice liability is derivative liability – must be a crime/principle must be a primary party / principle responsibility for crime of another CAN have a guilty accomplice and acquitted principle CAN have a guilty accomplice if principle escapes
Those elements of aiding and abetting are: (1) the underlying crime was committed by either the defendant or some other person, (2) the defendant performed acts or gave encouragement which aided and assisted the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time of giving aid or encouragement.
MPC – treats attempts very seriously – 2.06 – other person does not even have to KNOW you are aiding and abetting AND your efforts do not have to be successful!)
Genoa – no crime, then no liability Separate this from a whether the principal is convicted – a crime can be committed and then
get away --- > the accomplice is still held liable
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Even if principal is found not guilty, the accomplice may be found guilty (can have inconsistent jury verdicts that acquit principal and convict accomplice)
Accomplice need not be the CAUSE of the crime – it is sufficient that the accomplice made it easier for the principal actor to accomplish the end intended, even if the crime would have been committed anywayAccomplice must IN FACT AID – you must aid in some way – something to connect your behavior to the principal’s behavior Is my D in a legislatively protected category??????
B. Entrapment – you are not responsible if you were not going to procure crime before the authorities altered your state and induced you to commit crime (this is a Defense, so you must prove it) Rape / defense of consent – said π would have to prove all elements BRD…but this says ∆ must prove defense – shift in burden of proof)
In federal courts it is a SUBJECTIVE TEST – o look at the D
o Ask: were they ready, willing and able
If Yes, then they have NOT been entrapped even if the authorities got them to acto Was their non-criminal state changed to a criminal state by the authorities?
o Were you predisposed to do it? If so, then you are not entrapped.
OBJECTIVE TEST o Looks at a police conduct
o Can we condone this police conduct – should police be allowed to do this to people?
C. If the Perpetrator is Acquitted Accomplice liability is derivative in nature, therefore, most of the time the principal must be
convicted before the accomplice can be convicted (and crime must also occur) 1. If no Crime Occurred – Justification/Excuse and Accomplice Liability
o If the principal is acquitted b/c the court finds that no crime occurred, then the accomplice must also be acquitted
o US v Lopez – prison escape (boyfriend in helicopter)
o RULE: A defendant can be convicted of aiding and abetting even if the principal is
not identified or convicted; however, an aider and abettor may not be held liable absent proof that a criminal offense was committed by a principal. The fact that the principal need not be identified or convicted has never been thought to obviate the need for proof showing that an underlying crime was committed by someone.
2. If the Perpetrator is Acquitted on Grounds of a Defense o If a jury acquits the perpetrator of a crime on the grounds that his actions were
justified, then the accomplice will also be acquitted b/c she aided a proper (right) act
Ex - The defense of necessity may be raised in a situation in which the pressure of natural physical forces compels an actor to choose between two evils. The actor may choose to violate the literal terms of the law in order to avoid a greater harm. The defense of necessity is categorized as a justification.
o If the jury acquits the perpetrator on the grounds of an excuse, then the jury has determined a crime DID occur (the act was wrongful) and the perpetrator’s excuse is personal to him and will not necessarily excuse the accomplice.
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Ex. The defense of duress or coercion traditionally arises when a person unlawfully commands another to do an unlawful act using the threat of death or serious bodily injury. The pertinent question is whether circumstances overwhelmed the actor's will so that the inability to make the ''correct'' choice is excused. The defense of duress/coercion is generally classified as an excuse.
D. Perpetrator and Accomplice: Degree of Guilt o The courts are split on whether the accomplice can be guilty of a higher crime than the principal C/L rule was that an accessory could not be convicted of a more serious offense or a higher offense
than that of the principal (he could be convicted of a lesser offense) MODERN TREND: most courts treat criminal homicides differently: on the right facts the courts
are willing to convict an accomplice of a higher degree of criminal homicide than the perpetrator People v McCoy - Court found that in the homicide context, when an accomplice had the mental
state necessary for an aider and abettor, and helped or induced another to kill, that accomplice's guilt was determined by the combined acts of all the participants as well as the accomplice's own mens rea.
o If the accomplice's mens rea was more culpable than the perpetrator's, then the accomplice's guilt could have been greater even if the perpetrator was deemed to be the actual perpetrator.
Aider and Abettor CAN be guilty of a greater crime that the principle “Actus is actus,” but two perps in the same crime can have different mens rea.
E. Special Defense: Legislative-Exemption Rule – (legislatively protected class) RULE: A person may not be prosecuted as an accomplice in the commission of a crime if he is a
member of the class of persons for whom the statute prohibiting the conduct was enacted to protect. o For example, in a case of statutory rape, an underage female who engages in sexual
intercourse cannot be prosecuted as a secondary party to her own statutory rape since the law was enacted to protect young females from immature decisions regarding sex. (In Re Meagan R.)
RULE: When the Legislature has imposed criminal penalties to protect a specific class of individuals, it can hardly have meant (importance of legislative eintent) that a member of that very class should be punishable either as an aider or abettor or as a co-conspirator
F. Withdrawal/Abandonment – As with the law of conspiracy, many courts hold that a person who provides assistance to another for the purpose of promoting or facilitating the offense, but who subsequently abandons the criminal endeavor, can avoid accountability for the subsequent criminal acts of the primary party. The accomplice must do more than spontaneously and silently withdraw from the criminal activity. He must communicate his withdrawal to the principal and attempt to neutralize the effect of his prior assistance.
Can give complete and voluntary repudiation – terminate their actions Attempt to neutralize/prevent/thwart the crime Deprive other actors of their effectiveness Notify authorities
The accountability statute, Ill. Rev. Stat. ch. 38, para. 5-2 (1979), in part, provides that a person is legally accountable for the conduct of another when either before or during the commission of an offense, and with intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. However a person is not so accountable, unless the statute defining the offense provides otherwise, if before the commission of the offense, he terminates his effort to promote or facilitate such commission, and does one of the following: wholly deprives his prior efforts of effectiveness in such commission, or gives timely
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warning to the proper law enforcement authorities, or otherwise makes proper effort to prevent the commission of the offense.
G. Model Penal Code – A person is not an accomplice in the commission of an offense if:(1) he is the victim of the offense; or(2) his conduct is “inevitably incident” to the commission of the offense; or(3) he terminates his participation before the crime is committed, and he:
(a) neutralizes his assistance; (notifies the authorities)(b) gives timely warning to the police of the impending offense; or(c) attempts to prevent the commission of the crime. (thwart crime)
CH. 9: GENERAL DEFENSES TO CRIMES REMEMBER: if each element of a crime haven’t been proven, you don’t need to discuss defenses
Categories of DefensesFailure of Proof - REM not a defense. State can’t meet the burden (ex – a mistake may mean the state can’t prove the element of mens rea)
Consists of instances in which all elements of the offense charged cannot be proven (conditions necessary for guilt are not present)
Defense = I didn’t do it --- if client isn’t there to commit the crime Offense Modification (p. 441)
May apply to black mailer – if someone repeatedly pays a black mailer -- are you an aider and abettor - yes, but the crime doesn’t apply to the black mailee (won’t apply to the person being black mailed)
Courts will apply a C/L modification of the offense such that the crime won’t apply to the person who is the aider and abettor of blackmail
While the actor has satisfied all the elements of the offenses charged, he has not in fact caused the harm or evil sought to be prevented by the statute defining the offense
Ex - “legal impossibility” is a common law defense to the crime of attempt.
Justification Ex. – arson – you did something purposefully and knowingly, but you weren’t wrong/didn’t commit a crime
b/c you were justified (corn field burnings) Focuses on the ACTOR
Excuse What you did was the WRONG thing, but we forgive you – won’t hold you morally culpable Ex – you’re crazy (paranoid delusion causes you to commit the crime) Focuses on the Act, not the actor
Non-exculpatory public policy defenses Justification, excuse, and offense-modification defenses all relate to the defendant’s culpability or to the
wrongfulness of his conduct. In contrast, extrinsic or non-exculpatory defenses bar conviction, or even prosecution, based on factors
unrelated to the defendant’s actions or state of mind at the time of commission. Examples of such defenses are statutes of limitations, diplomatic immunity, and incompetency to stand trial.
Ex - Statute of Limitations – if you committed the robbery, but did it 20 years ago, then we may not convict you b/c no longer makes sense to hold you accountable
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o Note: there is NO SoL for murder
Ex - Diplomatic immunity, judicial immunity, legislative immunity
Patterson v New York Burden of Proof/Persuasion vs. Burden of Production 2 elements of the crime of 2nd degree murder:
1) Intent to cause death of a V 2) Causing death of V or a third party (transferred intent included in statutes)
Due process question – can the state create an affirmative defense and put burden on D to prove this by preponderance of the evidence? Does this meet the Due Process constitutional requirement?
Components to be concerned with in a DP case:o Must give the public notice
o Legality - yes, legislature passed the statute
o Innocence/fairness
DUE PROCESS: Prosecution has the burden to prove each and every element of the crime beyond a reasonable doubt
o This shifts the common law definition that included Malice and required the state to prove it as an
element of the crime, to a situation where the D must prove as an affirmative defense o Legislature can alter statutes as long as all the components of due process are met
Can shift the burden to the D
Legislature can now decide what is an affirmative defense and at what burden it must be proved Once the state decides to create defenses then there are two concerns:
1) Burden of proof (persuasion) a. Standard can be BRD, Clear and convincing, Prepd of evidence b. State can allocate this burden as it wants c. Can’t make the prosecution prove (disprove) something alleged by D unless D meets burden of
production 2) Burden of production - the burden of going forward
a. Do I get an instruction?b. Can I get to the jury?
Example – in order to get a self-defense instruction, you must meet the burden of production (put enough evidence in the case)
JUSTIFICATION DEFENSESA justification defense deems conduct that is otherwise criminal to be socially acceptable and non-punishable under the specific circumstances of the case. Justification focuses on the nature of the conduct/actions under the circumstances. (D did the right/permissible thing or at least did nothing wrong in causing the outcome that occurred – his behavior was morally or socially desirable)
Examples include: Self-defense Defense of others Defense of property and habitation Use of lawful force (law enforcement) Necessity (“choice of evils”)
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1. SELF-DEFENSE Use of Non-deadly force
o Common Law – A non-aggressor is justified in using force upon another if he reasonably believes
that such force is necessary to protect himself from imminent use of unlawful force by the other person. However, the use of force must not be excessive in relation to the harm threatened. One is never permitted to use deadly force to repel a non-deadly attack.
Use of Deadly forceo Common Law Rule – D is justified in using deadly force in self-protection only if the D
reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor. Deadly force may not be used to combat an imminent deadly assault if a non-deadly response will apparently suffice. D additionally must not be the aggressor.
1. D has to demonstrate that use of force was necessary and imminent. Self-defense in measured against necessity Imminence requirement Law values human life – even that of an aggressor. Deadly force cannot be used if unnecessary. (use of less force) Ex. If have 85 year old aggressor who is holding a knife and is threatening to stab and
kill B. One can only shoot him if it is necessary. If there are other solutions, then these will be expected under the law.
Duty to Retreat – if person under attack knows he can go to reach complete safety without bringing further injury, then many jurisdictions require retreat. If fails to do so and takes life of aggressor, this may not be a justifiable killing.
At C/L you had a duty to retreat (where safe) before engaging the use of deadly force in self-defense (Not allowed to use deadly force if you can safely retreat)
o Ask: would the person in the situation have subjectively believed it and was it
reasonable to the objective person? “Retreat to the wall” [Minority Rule]
o The duty was to retreat as far and as long as you could – when you can’t go any
further you can defend yourself (only if n-a knows of safe way to retreat)o Retreat rule premise – there is no necessity to kill in self-defense if the use of
deadly force can be avoided by retreat “Stand your ground” --- (the alternative to the duty to retreat) [Majority Rule]
o C/L principle is that you have to retreat if there is a safe option to do so
o Significant legislative movement toward allowing people to stand their ground
(FL – did this by legislation and many states have followed) “Castle” Exception – even in a duty to retreat jurisdiction, don’t have to retreat from
your home (if someone enters your house you can stand and defend) o In NC – we don’t have the full castle exception – if you are in your house don’t
have to retreat (but probably should), -- > but use of force must be necessary (we are also a duty to retreat state)
o NC – must reasonably belief the force is necessary §14-51.1 (burden of
production is on D to show that the force was necessary) 2. D must show that force used was proportional (force) to threat combating.
May not use deadly force as a response to non-deadly threat. Limitations on use of deadly force
▫ To use deadly force in self-defense, you must believe you will suffer imminent death or serious bodily harm
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▫ If not apparent from the facts that the use of deadly force was necessary, then the use of it is not permissible (deadly force, MUST be necessary)
RULE: one may use deadly force in self-defense even if the use of force could be avoided by safely retreating, UNLESS you are the aggressor
Even if there is a deadly threat, must be combating an unlawful deadly threat. Ex. Police pursuit of officer saying “stop or I’ll shoot.” This is not unlawful. (can’t use
self-defense as an excuse – no right to defend self against lawful force) 3. D must meet reasonable belief requirement
D doesn’t have to show that in fact that decedent would have killed D. It is enough if D genuinely believed that D was under imminent deadly attack and that this was a reasonable one. (Objective Reasonable Man Standard)
Goetz Case: Man on subway thought he was about to be mugged and potentially killed so he shot and killed imposing individuals. If we believe this is reasonable and other elements are met, he is granted self-defense justification.
Must have a reasonable and genuine belief that deadly force was necessary – this encompasses the subjective notions of what the jury thinks is reasonable o Genuine = subjective element
o Reasonable belief = objective element
o Ask: did the person (in the D’s position) have a reasonable fear that the offenders
would inflict serious bodily harm or death? o If the belief is genuine + reasonable, then self-defense is proper
o If the belief is genuine, but NOT reasonable, then many states use imperfect self-
defense o OR, if you use deadly force in response to a non-deadly threat (unreasonable self-
defense) This will mitigate murder to manslaughter
o Courts are increasingly applying a standard of the “reasonable person in the defendant’s
situation” in lieu of the “reasonable person” standard. Factors that may be relevant to the defendant’s situation or circumstances include:
(1) the physical movements of the potential assailant;(2) any relevant knowledge the defendant has about that person; (3) the physical attributes of all persons involved, including the defendant; (4) any prior experiences which could provide a reasonable basis for the belief that the use of deadly force was necessary under the circumstances.
4. D must not be initial aggressor Aggressor = person who commits/provokes/initiates an unlawful act reasonably
calculated to produce an affray foreboding injurious or fatal consequences. Mere words don’t provide adequate provocation to make you the aggressor RULE: No right to self-defense if you are the aggressor (US v Peterson) This does not mean that person who is the aggressor can never get self-defense
justification. If D drops weapon and communicates that threat no longer exists and victim continues to come after you, then this may be justified under self-defense.
Restored to right of self-defense – 1) if you withdraw and communicate your withdrawal to opponent (can be done through words or actions – turning and leaving is
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considered sufficient) or 2) when other person escalates a minor fight into one involving deadly force w/o giving aggressor a chance to withdraw
State v WanrowIs the use of force legal?
ISSUES to CONSIDER? o Timing – how far back in time can you look at the D’s conduct?
o RULE: The justification of self-defense is to be evaluated in light of all the facts,
information and circumstances known to the defendant, including those known substantially before the killing. (allowed to consider prior behavior you have witness/been victim of) Must be information that YOU knew and genuinely believed at the time The fact that someone tells you about it later doesn’t qualify as your knowledge at the
time o RULE: You do get to consider the personal characteristics of the D when determining
what is a reasonable belief. All the facts and circumstances known to a defendant, including those known prior to
the incident and the genders of the persons involved, must be taken into consideration when deciding if the D’s belief of danger was reasonable.
State v Norman --- Battered Women, Battered Woman Syndrome and Self Defenseo Battered wife killed her husband while he was asleep – Can she claim self-defense?
o What is the legal problem in this case?
In order to convict her, you must get around the imminency requirement somehow. RULE: the fact that an abusive aggressor was passive at the moment of his killing does not necessarily
preclude a D from claiming self-defense (appellate court)RULE: a D must have a reasonable fear of imminent death or great bodily harm before she is entitled to
a jury instruction of self-defense.
Often ambiguous situations. Ex. Batterer is watching TV and has an empty bottle of bear watching his favorite football team
lose. He is drunk and angry and stumbles into kitchen where woman is. He holds the bottle over his head and says “hey bitch.” At this moment, she takes a knife and stabs him to death. Can she claim self defense?o She will argue that she reasonably believed that he was about to hit her. It may be that he is
vulgar and was about to ask her for another bottle of beer. o Could she believe that she was about to be subjected to an imminent, unlawful and deadly
attack? o To answer this we are allowed to consider experiences of this woman with the acting party.
We are allowed to consider his violent attributes. She should be able to admit evidence that she is a battered woman.
If not it may be hard to understand why she may reasonably believe that she was going to be killed and how she might be justified in stabbing him.
General Rule: In deciding what someone reasonably believe, we should take in experiences of D that may be relevant in understanding why she believed what she believed.
Most jurisdictions say no, claiming that no one is entitled to jury instruction of self-defense unless imminent threat requirement is met.
Some jurisdictions will allow battered woman to introduce evidence of battered woman syndrome that shows cycle of violence that begins with a violent incident results in acute violence by the male. Male then feels deep remorse, showing love to victim who
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then begins to think that everything will be ok. Over time this woman becomes psychologically paralyzed by the situation – she has no control (man has complete control), she can’t lose abuser. These jurisdictions allow this to help determine whether she had a reasonable belief, even though he was asleep. This belief that she must kill now is reasonable in light of the fact that she is suffering from BWS evidence. It is used at reasonable belief level to explain why she had to kill him.
2. DEFENSE OF OTHERS Traditionally applied only to special relationships (e.g. husband and wife, brothers, parent and child) Generally: a person may use force, including deadly force, upon an aggressor when and to the extent that
they reasonably believe a person that she is aiding would have a right of self-defense. Ex. Albert is walking down the street and observes C pointing gun at B. A may defend B from
aggressor C to same extent that B could defend himself. If B is unarmed, A may come to his aid and use deadly force against C.
Wrinkle: Suppose C turns out not to be an aggressor but an undercover officer arresting B. A is unaware of this and helps B when he shouldn’t. What should law do?
Assuming A’s mistake is a reasonable one? What should be our position.o Courts are split. Some like good Samaritans. Some courts want to help A in this situation
and will grant him the defense as long as his belief that C is an aggressor is reasonable. Other courts worry that good Samaritans would end up as bad intermeddlers, getting involved in things they don’t understand. If A acts in this case, he acts at his own risk. Issue is not whether or not the belief is reasonable but instead, was B in fact threatened unlawfully by C? If A acts reasonably, but incorrectly he will lose defense. (ALTER-EGO RULE)
o Most jurisdictions follow first test – reasonable belief allows force necessary to protect B. (MODERN RULE)
o Alter Ego Theory – A stands in shoes of B and has no greater right than B would have. If B has no right then A has no right.
Modern Rule (Majority): D is privileged to use force in defense of a third party if D reasonably believes such force is necessary – deadly force may be used to avoid death or serious bodily injury (akin to self-defense, but can use when someone else can’t protect themselves)
Alter “Ego” Rule (Minority): A stands in shoes of B (who’s being assaulted) and has no greater right than B would have. If B has no right then A has no right.
o Potential problem – you may be stepping into the shoes of the aggressor unknowingly (you would
lose in this case b/c you defended the little old lady who attacked the man) – potential for the D to use force in cases where the person being defended was not privileged to use force
3. DEFENSE OF PROPERTY General Rule: A person in possession of real or personal property is justified in using non-deadly force
against a would-be dispossessor if he reasonably believes that such force is necessary to prevent imminent and unlawful dispossession of the property.
Limitation on Rule: A person may never use deadly force to protect real or personal property. Will often merge with other defenses that permit deadly force. Ex. - May not use it to protect car but are allowed to use moderate, non-deadly force to protect property.
What if car thief then turns gun on you? Defense of property becomes a self-defense case, authorizing this justification.
Clarification: Recapture of Property - A person may not ordinarily use force to recapture property of which he has been unlawfully dispossessed except if he acts promptly after dispossession. One may follow the dispossessor in hot pursuit in order to recapture his property and if necessary, use non-deadly force in the process.
Exception for real property (one’s home/dwelling) – defense of habitation (see below for example)
4. DEFENSE OF HABITATION
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The one exception to defense of property rule. Are allowed to defend real property of one’s home/dwelling with deadly force.
Home is one’s castle. Law allows person to use deadly force under certain circumstances to protect the home. Original Common Law/Broader Approach: may use deadly force if reasonably believe that other
person will imminently, unlawfully enter your dwelling and if a deadly force is necessary to prevent that intrusion.
o 3 elements (must be overlaid by reasonable belief): 1. V intends to unlawfully and imminently enters D’s house2. V intends to commit a felony inside, or to cause bodily injury (regardless of degree)3. Necessity to use deadly force to prevent the entry.
If can keep someone out without deadly force, have to use that method.o Modern Law: most jurisdictions require that D must also reasonably believe that intruder will
commit a forcible or atrocious felony when he enters. Must be a threat of deadly force or serious bodily harm or a possibility of such happening –
murder, robbery, rape, etc. 4 elements:
o Imminent entryo Unlawful entryo Necessity to use deadly force to prevent the entry. o Reasonable belief that forcible or atrocious felony will be committed inside.
Owner has ability to protect home against forcible entry before violence inside home might occur. The only thing that has to be imminent is the entry itself. The forcible felony need not yet be imminent.
Ex. People v. Ceballos, SCCA, 1974 – Spring Guns o Facts: D noticed that his garage (in which he stored $2,000 of property and sometimes slept) had
been tampered with so he set up a trap gun in the garage. It was aimed at the center of the garage doors and was connected to a wire that would fire the gun if the door was opened several inches. Two unarmed teenagers entered the garage and one was hit in the face with a bullet from the gun.
o Procedural History: Found guilty by a jury of assault with a deadly weapon. o Holding: Affirmed, fails to meet the exception limitation that the felony be some atrocious crime
attempted to be committed by force. o Rule: if the D would be privileged/justified to use the force were he present, then the mechanical
device can use that force (alter ego rule for mechanical devices) The actor is relieved from liability only if the intruder is, in fact, one whose intrusion
involves danger of life and limb of the occupants of the dwelling place or is for the purpose of committing certain serious crimes. (deadly force must be necessary)
o Alternate Rule: An increasing number of states now prohibit the use of a mechanical device designed to kill or seriously injure an intruder to protect property, even if the possessor would be justified in using deadly force in person.
5. LAW ENFORCEMENT DEFENSES Defense of Crime Prevention - It is justifiable for police to use force to prevent crimes from occurring
When might someone use deadly force?o Never to prevent a misdemeanor.o Only can be used to prevent any felony.o Common Law: Could be used to prevent any felony, unless could be avoided with non-deadly
force. o Modern Law: Deadly force can only be used if one reasonably believes it is necessary to
prevent a forcible or atrocious felony. Defense of Escape Prevention?????: Use of force to effectuate an arrest or prevent someone from escaping
after arrest.
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Arrives after crime has occurred. Common Law: Exceptionally broad, police could use deadly force in the arrest or prevention of an
escape of any felony. o Police officer didn’t even have to demonstrate that it was necessary to use deadly force. If PO
reasonably believed that he was after a felon, he could use deadly force. o At common law, every felony carried the death penalty. Any one committing one of these
crimes has sacrificed his right to life. Modern Law: Constitutional Rule
o Ex. TN v. Garner, SC ruled that the use of deadly force to prevent any felon from escaping violates the 4th amendment of the US constitution (prohibiting unreasonable searches and seizures). When officer shoots and kills, this is act of killing is an ultimate seizure of that person. SC concluded that this method of bringing a criminal down constitutes an unreasonable seizure unless officer meets more stringent requirements.
o Rule today is that deadly force may be used by a police officer to prevent the escape of an
arrestee only if: (only applies to govt. agents, not private citizens) 1) It is shown that deadly force was reasonably necessary to prevent the escape
2) If practical, the officer warns the suspect of intention to use deadly force
3) Officer has probable cause to believe that this person, if not arrested immediately, posses a significant threat of death or serious bodily harm to police or others.
6. NECESSITY It is a defense of last resort as it legitimizes technically illegal conduct that common sense, principles of
justice, and/or utilitarian concerns suggest is justifiable, but which is not specifically addressed by any other recognized justification defense. (Only use if no other defense applies.)
MPC refers to it as the “choice of evils” EX - Person in the street is fearful of oncoming tornado. Thinks only way to protect himself is to break
into home and get into a basement.
Elements of the Necessity Defense 1) Natural Forces Create – (separates necessity from duress) 2) D must violate law (evil 1) to avoid greater evil (evil 2) 3) Evil 2 must reasonably appear greater than evil 1
o The defendant’s actions are evaluated in terms of the harm that was reasonably foreseeable at
the time, rather than the harm that actually occurred. 4) D generally believes there is a threat of clear and imminent harm to himself/others/property5) There must be a direct causal relationship between the action and the harm to be averted.6) D not at fault in brining situation about -- “Clean Hands”7) Imminence/absence of legal alternative (No effective legal way to avert the harm) – D must reasonably
believe that the harm he is committing is the only way to prevent harm to himself 8) Legislature has not foreclosed the choice (if the legislature had looked at the behavior under
consideration and made a decision to allow necessity, then the defense is permitted – can get to jury) 9) Not a defense to murder at C/L
Limitations on the rule – The availability of the necessity defense may be further limited to:(1) emergencies created by natural forces; (2) non-homicide cases [see Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884)](3) protection of persons and property only, excluding for example, the protection of reputation or
economic interests.
Most commentators believe that this is not available for murder.
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Ex. Dudley v. Stephens – lifeboat in which weaker survivor is killed to sustain the remaining two who were later prosecuted for murder. Court held that Ds could not claim necessity and were guilty of murder.
Commentators believe that case stands for proposition that a person may never kill an innocent individual even if doing so would save more lives – being the lesser of two evils.
Note: Model Penal Code DOES NOT HAVE a no homicide rule – necessity is a defense to homicide
MPC Section 3.02 – Choice of Evils Defense May be used for any crime as long as meet basic criteria of the defense, including that it is the lesser of
two evils. Threatening harm need not be imminent. All that D must show is that he/she reasonably believed that some harm would befall him or another,
that he chose the lesser of two evils, and that he was not reckless or negligent in creating the emergency situation.
The necessity defense is broader under the Code than under common law and many non-Code-based statutes. Under the Code, otherwise unlawful conduct is justified if:
(1) the defendant believes that his conduct is necessary to avoid harm to himself or another;(2) the harm to be avoided by his conduct is greater than that sought to be avoided by the law prohibiting his conduct; and(3) there is no legislative intent to exclude the conduct in such circumstances. [MPC 3.02(1)] o Unlike common law, the Code does not require that the harm be imminent or that the defendant
approached the situation with “clean hands.” Furthermore, the common law limitations regarding natural forces, homicide cases, and property and personal are inapplicable to the Code’s necessity defense.
Ex. Nelson v. State, SCAL, 1979 Facts: Nelson was driving on a side-road and got his car stuck in the marsh. They tried to free the
vehicle, waited hours for someone to come to the Highway Department assistance and then decided to take a dump truck and use it to pull out their car. The dump truck also got stuck. They then took a front-end loader which they used to free the dump truck. Then used dump truck to free Curly’s car and then front-end loader got stuck again. Nelson and friends then quit and went to sleep. Two of them slept in tent and one slept in the truck. They were awaken by a Highway Department employee who placed them under citizen’s arrest.
Procedural History: N was convicted of reckless destruction of personal property Holding: Affirmed, defense of necessity may be raised if the D’s actions, although violative of the law,
were necessary to prevent an even greater harm from occurring. There’s a balancing test here between the harm actually caused and the harm averted by the act. That’s
the very definition of necessity.Rule: the defense of necessity may be raised only where the D’s law-violating actions were necessary to prevent an even greater harm o RULE: 3 elements are required in order to show necessity:
The act charged must have been done to prevent a significant evil There must have been no adequate alternative Harm caused must not have been disproportionate to the harm avoided.
Note: must look at what the D would have done at the time he made the decisiono Put yourself in the shoes of the D --- at the time they were making the D, did
they chose the lesser of the two evils and what does this D believe Ex. US v. Schoon, USCOA, 1991
Facts: 30 people gained admittance to the IRS office in Tucson, where they chanted “keep America’s tax dollars out of El Salvador” splashed simulated blood on the counters, walls, and carpeting, and generally obstructed the office’s operation. Appellants were arrested.
Procedural History: DC denied the necessity defense on the grounds that the requisite immediacy was lacking, the actions taken would not abate the evil, and other legal alternatives existed.
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Holding: Affirmed, necessity defense is inapplicable to cases involving indirect civil disobedience. The court denied necessity b/c 1) immediacy was lacking; 2) action taken would not abate the evil and
3) other legal alternatives existed
Direct vs. Indirect Civil Disobedience Indirect – the law that they are protesting is not the one they violated (it is very removed)
o E.g., violating trespass statutes to protest construction of a nuclear power plant or the performance of abortions at a clinic.
o Also have legal, permissible alternatives o Even if evil 2 may be greater than evil 1, the connection b/w the evils is not close enough
Direct – breaking the law as you protest it – sit-ins at lunch counters in Greensboroo Still hard to show necessity b/c there are lawful alternatives
RULE: indirect protests of congressional policies can never meet all the requirements of the necessity doctrine, and the necessity defense is thus unavailable in such cases (necessity is not a defense to indirect civil disobedience.
EXCUSE DEFENSES – looks at actor, instead of the acts of D and says that actor didn’t do the right thing but shouldn’t be blamed for having caused the harm because of some excusing condition.
Excuse defenses focus on the defendant’s moral culpability or his ability to possess the requisite mens rea. An excuse defense recognizes that the defendant has caused some social harm but that he should not be blamed or punished for such harm/wrongful conduct. (Few because law doesn’t look kindly upon them -- > are defined narrowly.)
Examples include: Duress, Insanity, Diminished capacity Intoxication (in very limited circumstances) Mistake of fact Mistake of law (in very limited circumstances)
1. DURESS – looks like necessity Common Law:
General Principle/ElementsA person may be acquitted of any offense except murder if the criminal act was committed under the following circumstances:
(1) Another person issued a specific, immediate threat to kill (use deadly force) or grievously/seriously injure the defendant or a third party, particularly a near relative, unless he committed the offense;
(2) The defendant reasonably believed that the threat was genuine (well-founded fear); Depends on who’s threatening you
(3) The threat was “present, imminent, and impending” at the time of the criminal act;(4) There was no reasonable escape from the threat except through compliance with the
demands of the coercer; and(5) The defendant was not at fault in exposing himself to the threat. (6) The defense is available in non-homicide cases
Ex. Terrorist drives mother and daughter to bank and threatens to kill daughter unless mother robs the bank. If mother goes through with it, she will likely claim duress.
Courts will define imminency requirement very narrowly.
Factors to consider: Time
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Who is threatening you Where you are being threatened – LA v Colombia Availability/opportunity of help/aid Inform law enforcement – not really an element, but is a factor taken into consideration
MPC Section 2.09 Duress It is an affirmative defense that actor engaged in criminal conduct b/c she was coerced to do so by
use of or threat to use unlawful force against her person or the person of another. The threat must be one that that a person of reasonable firmness in her situation would have been
unable to resist. Distinguished from Common Law (much broader than C/L)
o No limitation by crime – is a defense for all crimes (even murder) o Threat need not be an imminent deadly threat. Instead it must be a physical threat that a
person of reasonable firmness in the same situation would have been unable to resist. Ex. US v. Contento-Pachon, USCOA, 1984
Facts: D is a taxi driver in Bogota, Columbia whom it was proposed to that he could swallow cocaine balloons and transport them to the US. D failed to report the incident to police because he felt police are corrupt and that they are paid off by drug traffickers. D tried to say he wouldn’t carry the cocaine but when he suggested this, his family was threatened with death. He swallowed balloons, flew to Panama and failed to report b/c of fear of corruption and then was detained by US customs officials who requested to x-ray his stomach.
Procedural History: Conviction for unlawful possession with intent to distribute a narcotic controlled substance.
Holding: Reversed b/c there were sufficient evidence of duress to present a triable issue of fact.
Rule: Elements of Duress: 1) immediate threat of death or serious bodily injury, 2) well-grounded fear that the threat will be carried out and 3) no reasonable opportunity to escape threatened harm.
People v Anderson RULE: duress is NOT a defense to murder RULE: duress will not reduce murder to manslaughter If the state’s theory of homicide is a felony-murder -- and if duress is a defense that
prevents you from being guilty of felony, then you are not guilty for an incidental murder (F-M = felony + death = murder)
Duress v. Necessity Duress involves only human threats. Traditional necessity involves natural threats (non-
human, outside force) (tornadoes and starvation). Today this has been expanded. Duress is an excuse defense – D has not necessarily made right decision or chosen the lesser
of two evils. Necessity is a justification – person has done the right thing.
2. INTOXICATION Voluntary Intoxication (self-induced) – a person chooses to get drunk or do drugs.
C/L Rule: Voluntary intoxication is NOT an excuse/affirmative defense for criminal conduct. May still serve as a mens rea defense. Voluntary intoxication can work in the same way that mistakes
of fact and mistakes of law work. Can serve to demonstrate that D did not have required mens rea for the crime. It may negate the mens rea required in definition of the crime. If it does, an essential element of the crime hasn’t been proven by prosecutor and D should be acquitted.
Because it involves voluntary intoxication, law is strict, distinguishing between general intent and specific intent crimes. o If general intent crime, voluntary intoxication will NOT be a defense.
Ex. Rape – at common law a D will not be able to win this claim. Law considers a person so drunk as an actor with a morally culpable state of mind and therefore is guilty.
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o If SI crime, voluntary intoxication will be a defense if D’s condition, b/c of intoxication, is so
extreme that he lacked specific intent component of the crime. Ex. Assault with intent to commit rape – George is prosecuted for this crime and says that
he was so drunk that he didn’t know what he was doing or genuinely believed she was consenting. If jury believes George’s claims then he must be acquitted.
Increasing number of jurisdictions that have abandoned this excuse altogether – even for specific intent crimes. Controversial because we would then be convicting D even though he lacked mens rea required for the crime.
o Ex. Montana v. Egelhoff held that such a statute is permitted
Model Penal Code General Rule – Model Penal Code § 2.08(4)–(5) distinguishes three types of intoxication:
(1) voluntary (“self-induced”) intoxication;(2) pathological intoxication; and(3) involuntary (“non-self-induced”) intoxication.
Exculpation Based on Intoxication1. Mens Rea Defense – Any form of intoxication is a defense to criminal conduct if it
negates an element of the offense. [MPC § 2.08(1)] Since the Code does not distinguish between “general intent” and “specific intent” offenses, the mens rea defense is broadly applied, with one exception. In the case of crimes defined in terms of recklessness, a person acts “recklessly” as to an element of the crime if, as the result of the self-induced intoxication, he was not conscious of a risk of which he would have been aware had he not been intoxicated. [MPC § 2.08(2)] (this is like a recklessness M/R for the crime)
2. Insanity – Pathological and involuntary intoxication are affirmatives defenses, if the intoxication causes the defendant to suffer from a mental condition comparable to that which constitutes insanity under the Code. [MPC § 2.08(4)]
Involuntary Intoxication – Occurs in one of three following situations
o Innocent mistake - Person ingested intoxicate innocently or without knowledge. o If person is forced to take the drugo Pathological – a temporary psychotic reaction -- > If a person is taking a prescribed
medication and has an unforeseeable or intoxicating response b/c of an allergic reaction. A response that D doesn’t know will happen and can’t be predicted in normal course of
events Most courts will permit these defenses even to general intent crimes not just specific intent crimes. Jurisdictions will also permit defense if D’s involuntary intoxication causes him to effectively be
insane by means of involuntary intoxication. If he can satisfy state’s insanity definition, then he will be acquitted, even if he doesn’t suffer from a mental illness.
3. INSANITY “Insanity” is a legal term that presupposes a medical illness or defect but is not synonymous with “mental
illness,” “mental disorder,” and “mental disease or defect.” “Mental illness” is a more encompassing term than “insanity,” and thus, a person can be mentally ill – medically speaking – without legally being insane. Five tests of insanity have been applied at one time or another.
Usually an affirmative defense (in jurisdictions where the defense exists, the D bears burden of proving that he was insane; the prosecution then bears burden of proof to show D was not insane)
1. M’Naghten Test – The M’Naghten rule focuses exclusively on cognitive disability. As a result of mental disease or defect
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Under this rule, 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, that he:(1) [incapable of knowing] did not know nature and quality of act he was doing (or)(2) [incapable of knowing] did not know what he was doing was wrong
This test requires total cognitive disability and does not allow for degrees of incapacity and nor does it recognize volitional incapacity in which a person is aware that conduct is wrong yet cannot control his behavior.
2. “Irresistible Impulse” Test – Some jurisdictions have broadened the scope of M’Naghten to include mental illnesses that affect volitional capacity. (added to allow for possibility of knowledge, but inability to stop behavior)ƒ Generally speaking, a person is insane if, at the time of the offense:
(1) he acted from an “irresistible and uncontrollable impulse”; (2) he was unable to choose between the right and wrong behavior (knew his behavior was wrong);(3) his will was destroyed such that his actions were beyond his control.
3. The Product (Durham) Test – DC circuit invented this test – is a “but-for” testThis rule, now defunct, provided that a defendant’s criminal behavior may be excused if he was suffering from a mental disease or defect at the time of the offense and the criminal/unlawful conduct was the product of the mental disease or defect.
4. Model Penal Code Test – The Model Penal Code provides that a person is not responsible for his criminal conduct if, at the time of the conduct, as the result of a mental disease or defect, he lacked substantial capacity to:(1) appreciate the “criminality” (or “wrongfulness”) of his conduct; or(2) to conform his conduct to the requirements of the law.
This test does not require total mental incapacity.
5. Competency – regardless of D’s mental state at the time of the crime, an accused cannot be tried for a crime if:
1. At the time of trial she is a. Incapable of understanding the nature of the proceedings, orb. Of assisting in her defense in a rational or reasonable manner
“Guilty But Mentally Ill”A number of states have adopted an alternative verdict, “guilty but mentally ill” [GBMI]. In all but two of these states, the insanity defense has been retained. In these states, the jury returns a NGRI verdict if the defendant was insane at the time of the crime; it returns a GBMI verdict if he is guilty of the offense, was sane at the time of the crime, but is “mentally ill,” as the latter term is defined by statute, at the time of trial.
Middle Ground = Guilty, but mentally ill [GBMI] – not full exculpation -- different set of penalties and treatment
Not guilty by reason of insanity [NGRI] – no responsibility (full exculpation)
INCHOATE OFFENSESOverview to Inchoate Conduct - incomplete or unsuccessful offenses
Activity that occurs after the formation of the mens rea but short of attainment of the criminal goal is described as “inchoate” – imperfect or incomplete – conduct. The most common of these offenses are attempt, solicitation, and conspiracy. Inchoate crimes are typically treated as a lesser offense than the substantive crime.
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RATIONALE: We have these for law enforcement purposes, we want to give police officers ability to stop criminal offenses before they are committed. As a result common law created these offenses before social harm can occur.
Policy Issues:o Want to give police opportunity to arrest people/intervene b/c we don’t want crime to occur. o On the other hand, if we let police step in too early, we run certain counter risks. We may be allowing
police to arrest someone who is entirely innocent. Also if we believe in retributive theory of free will, we want to give people an opportunity to change their minds.
o There is a constitutional requirement for the police to intervene --- MUST have a crime that prompts their intervention; otherwise, they can be sued for stopping you for no reason
o Person is dangerous so we want to prevent them from harming others: need safeguards and legal
basis/reasons for protection (incapacitation, rehabilitation) o Failure to commit a crime b/c of fortuity should still be punished
o Concerns of Free will
o Opportunity to withdraw – room for moral agency….time to change your mind
1. ATTEMPT o Definition: an attempt occurs when a person, with the intent to commit a criminal offense, engages in
conduct that constitutes the beginning of the perpetration of, rather than mere preparation for, the target offense.
o Mens Rea: Dual Intent: to be guilty, a person must have 1) the intent to commit the acts that constitute the A/R of an attempt (an act that brings him in close proximity of committing the target offense) and 2) the specific intent to commit the target crime.
o Specific intent must be proven even if such intent is not required to be guilty of the completed target offense. (ex. – rape = general intent crime; attempted rape = specific intent crime)
Ex. -- J fires a gun blindfolded into a crowded room as a practical joke. If he kills someone, he is guilty of murder. Suppose if he fires the gun and only wounds a person. Is this attempt? No because D did not have the specific intent to kill. He was acting with an abandoned and malignant heart.
o Actus Reus – questions here is how far must conduct go to constitute an attempt? This is where public policy arguments surface.
If we wait until next to last second then we can’t stop crime from occurring. A person should be guilty before perpetrating the last act necessary to constituting the crime. How early is too early? At time gun is bought? What about when it is loaded? What about when she
arrives on the scene? What if victim isn’t there yet? At what point do we draw the line? Courts have yet to draw a distinct line. What they do is say that the line is between an act of
preparation and an act of perpetration. Common Law tests focus on how close the D is to completing the crime, others focus on how
much D has already done.
o Views of Guilt:
Subjectivist – internal, moral desert/culpability; what does this person deserve?o Facts are proof of mental state --- once we cross the formation of M/R line, then preparation and
commencement are just evidence/facts o once the person has formed the intent, that can suffice as attempt o Start at the bottom (physical proximity and ask how many steps he has taken to completion)
Objectivist – social harm o focus on the conduct the person is engaged in – this must manifest attempt
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o At the end of “last act” -- want to know almost without a doubt that you charging a person who was in the act of attempting a crime
o Stages of Crime of Attempt: (Range of M/R and A/R) Formation of the idea: “I could…?” Evaluation: “Should I…?” Formation of Mens Rea (formation of decision to act): “I will…!”
o Morally culpable person at this moment (guilty under subjective view) Preparation – haven’t yet begun to commit crime
o Quantum of preparation vs. presumption of guilt (due process issue)o TIME – presents an issue b/c may implicate people who could be guilty, but aren’t yet
Commencement – beginning of the crime (if you think a person can decide and then later un-decide to act, then you focus on the A/R of the crime)
o [Actus limit or M/R limit ? --- How much action needed to demonstrate proof of M/R?]
Actus Reus Tests for Attempt (more stringent to less stringent) o OBJECTIVIST
Last Act (NC rule) – you have completed all the steps – pulled the trigger, but missed; so close to completion that crime would be committed except for intervention
Res Ipsa Loquitor / unequivocality – must look at D’s actions/conduct alone (by themselves), no words are considered – and determine that the actions were intended to commit the crime; an attempt is committed when the actor’s conduct manifests an intent to commit a crime
Abnormal Step – an attempt is a step toward crime which goes beyond the point where the normal citizen would think better of his conduct and desist.
Probable Desistance (But-for intervention) – rational actor standard; the conduct constitutes an attempt if, in the ordinary and natural course of events, without interruption form an outside source, it will result in the crime intended (allows the person room to change their mind)
Indispensable element/Essential Means – a variation of the proximity tests, which emphasizes any indispensable aspect of the criminal endeavor out which the actions not yet acquired control
Dangerous proximity (to success) – the greater the gravity/substantiality and probability (degree of apprehension felt) of the offense, and the nearer the act of the crime, the stronger is the case for calling the act an attempt. The more serious the offense, the less close the person has to be to completing the attempt to be guilty of the crime.
Physical Proximity - the over act required for an attempt must be proximate to the completed crime, or directly tending toward the completion of the crime, or must amount to the commencement of consummation (apparent power to commit crime immediately)
o SUBJECTIVIST
o MPC Test – a person has gone far enough if they have taken a substantial step in the direction of committing a crime. Requires that substantial step corroborates the D’s attempt. Have to demonstrate D’s intent and conduct must corroborate this intent.
Will result in sooner conviction than many common law tests.
Punishment --- > In NC – attempt is downgraded one level from the crime that you are committing????
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Potential for notice problems – the more stringent you are with the crime of attempt, the more likely the legislature is going to refashion the definitions of crimes to pick up more offenses
Deliberation Decision preparation ~~~~~ attempt completion --- > you have finished the crime
The deliberation/preparation/attempt line moves depending on which rule your jurisdiction adopts If you are in a last act state, then there are many more steps to preparation before you have reached
the definition of an attempt
2. Solicitation – o If a person requests or encourages or asks another person to commit a crime with the intent that another
person commits the crime, then the person who has made this request is guilty of solicitation. Will be guilty the moment the request is made.
o Can solicit through mail and will be guilty the moment the letter is placed in the mail. o Can make it a crime or a way to commit a crime o Makes it easier to convict b/c there is more than one persono At early common law there was no crime of solicitation.
Burglary = the breaking and entering of the dwelling house of another at night with the intent to commit a felony therein
Larceny = the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the owner thereof.
Robbery = the taking of personal property of another from the other’s person or presence, by force or intimidation, with the intent to permanently deprive him of it
General Intent Crimes: Rape Battery Arson Involuntary Manslaughter “Depraved Heart Murder” Indecent Exposure
Specific Intent Crimes: Burglary Larceny Robbery Voluntary M/S Premeditated Murder Attempt Conspiracy Assault Embezzlement False Pretenses
ACCOMPLICE LIABILITY Principal = one who commits the crimeAccomplice = one who assists or encourages the carrying out of the crime, but doesn’t commit the A/R
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Accessory after the fact = guilty of obstruction of justice
C/L = one is an accomplice if he intentionally assists another engage in conduct that constitute crime Can aid, abet, encourage, solicit, advise or procure commission or attempted commission Words or thoughts/prayers are enough if other party knows of them Presence at crime scene not required Mere presence is not sufficient --- an affirmative act, no matter how slight, is required D won’t be accomplice for failure to intervene unless he has an affirmative duty to do so D’s assistance doesn’t have to be necessary for crime to happen in order for him to be guilty If no crime occurs, then D can’t be liable as an accomplice
Mental State: Dual Intent1. Must prove intent to aid behavior/facilitate commission of crime that constitutes crime (P/K)
2. Must have specific M/R for the crime [Majority rule]i. Other jurisdictions may just require purpose or knowledge
Natural and Probable Consequences Doctrine If accomplice intentionally assists in one crime and principal commits that crime and other offenses,
then accomplice will be held liable for those crimes is:1. The additional offenses are the N&P consequence of the conduct that the A did intend to assist,
and 2. The P committed the additional crimes in furtherance of the original criminal objective
NOTE: must the N&P consequences MUST be foreseeable
MPC = code rejects the Natural and Probable Consequences Doctrine Accomplice is only held liable for acts that the purposefully commits (those he intends to aid)
o Under the Code, accomplice liability exists only if one assists “with the purpose of promoting or
facilitating the commission of the offense.” o Accomplice liability may also be found in cases involving recklessness or negligence when causing
a particular result is an element of a crime:(1) he was an accomplice in the conduct that caused the result; and (2) he acted with the culpability, if any, regarding the result that is sufficient for
commission of the offense
ATTEMPT1. D must intend to perform an act and obtain a result, that if achieved, would constitute a crime 2. D must have committed an act beyond mere preparation for the offense
o Definition: An act which, although done with intention of committing a crime, falls short of completion.An attempt occurs when a person, with the intent to commit a criminal offense, engages in conduct that constitutes the beginning of the perpetration of, rather than mere preparation for, the target offense.
o Mens Rea: Dual Intent: to be guilty, a person must have 1) the intent to commit the acts that constitute the A/R of an attempt (an overt act that brings him in close proximity/furtherance of committing the target offense)
and 2) the specific intent to commit the target crime.
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Specific intent must be proven even if such intent is not required to be guilty of the completed target offense. (ex. – rape = general intent crime; attempted rape = specific intent crime)
o MPC Test – a person has gone far enough if they have taken a substantial step in the direction of committing a crime. Requires that substantial step corroborates the D’s attempt. Have to demonstrate D’s intent and conduct must corroborate this intent.
Will result in sooner conviction than many common law tests.
Actus Reus Tests for Attempt (more stringent to less stringent) o OBJECTIVIST
Last Act (NC rule) – you have completed all the steps – pulled the trigger, but missed; so close to completion that crime would be committed except for intervention
Res Ipsa Loquitor/unequivocality – must look at D’s actions/conduct alone (by themselves), no words are considered – and determine that the actions were intended to commit the crime; an attempt is committed when the actor’s conduct manifests an intent to commit a crime
Abnormal Step – an attempt is a step toward crime which goes beyond the point where the normal citizen would think better of his conduct and desist.
Probable Desistance (But-for intervention) – rational actor standard; the conduct constitutes an attempt if, in the ordinary and natural course of events, without interruption form an outside source, it will result in the crime intended (allows the person room to change their mind)
Indispensable element/Essential Means – a variation of the proximity tests, which emphasizes any indispensable aspect of the criminal endeavor out which the actions not yet acquired control
Dangerous proximity (to success) – the greater the gravity/substantiality and probability (degree of apprehension felt) of the offense, and the nearer the act of the crime, the stronger is the case for calling the act an attempt. The more serious the offense, the less close the person has to be to completing the attempt to be guilty of the crime.
Physical Proximity - the over act required for an attempt must be proximate to the completed crime, or directly tending toward the completion of the crime, or must amount to the commencement of consummation (apparent power to commit crime immediately)
o SUBJECTIVIST
ELEMENTS OF SELF-DEFENSERequirements:
1. Resist unlawful force: D must have been resisting present or imminent use of unlawful force (use of force is necessary and to defend against imminent death or great bodily harm)
2. Force must not be excessive: degree of forced used by D must not be more than reasonably necessary to defend against threatened harm (force used is proportional to threat)
3. Deadly force: the force used by D may not be deadly (likely to cause death or serious bodily injury) force unless danger being resisted is also deadly force
4. Not the Aggressor : D must not be aggressor, unless: (1) he was non-deadly aggressor confronted with the unexpected use of deadly force; or (2) he withdrew after initial aggression, and the other party continued to attack
5. D must have a reasonable and genuine belief that deadly force was necessary/he was under imminent attack
6. Retreat: (in some states) – D must not have been in a position where he could safely retreat, unless: (1) the attack took place in his home/castle; or (2) D used only non-deadly force
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o Proportionality Limitations on use of deadly force
▫ To use deadly force in self-defense, you must believe you will suffer imminent death or serious bodily harm
▫ If not apparent from the facts that the use of deadly force was necessary, then the use of it is not permissible
Use of deadly force in self defense is generally appropriate when the victim engages in a deadly attack which is wrongful, and it is necessary to kill the victim in order to save oneself.
IF D is mistaken, (only appears that D must use deadly force) a resulting homicide is still justified if the D’s mistaken belief was both held in genuine and objectively reasonable
If D’s belief in the necessity of deadly force is honest/genuine, but unreasonable, the intentional homicide is NOT justified = imperfect self-defense and warrants mitigation from murder to M/S
DEFENSE OF OTHERS Generally: A person may use force to defend another in roughly the same circumstances in which he would
be justified in using force in his own defense. C/L: Traditionally applied only to special relationships (e.g. husband and wife, brothers, parent and child) Modern Rule: D is privileged to use force in defense of a third party if D reasonably believes such force
is necessary – deadly force may be used to avoid death or serious bodily injury (akin to self-defense, but can use when someone else can’t protect themselves)
Requirements:1. Danger to other: D reasonably believes that the other person is in imminent danger of unlawful
bodily harm2. Degree of force: the force used must be no greater than D believes is reasonably necessary to
prevent the harm3. Belief in the other person’s right to sue force: D reasonably believes the party he’s assisting has the
right to use in his own defense the force that D is using to assist him Retreat: D may not use deadly force if he has reason to believe that the person could safely retreat
Mistake as to who is the aggressor: Split in jurisdictions 1. Traditional Rule: Alter “Ego” Rule (Minority): you step into the rules of the person being assaulted;
if that person did NOT have the right to use that degree of force, then D’s claim fails2. Modern View (Majority): so long as D’s belief that unlawful force is being used against the aide is
reasonable, D may assert the claim of defense of others
DEFENSE OF PROPERTY/HABITATIONA. Generally: a person has a limited right to use force to defend his property against wrongful taking
1. Non-deadly force: Non-deadly force may be used to prevent the taking of one’s real or personal property
2. Reasonable Degree: the degree of force used must be no more than appears reasonably necessaryB. Deadly Force: in general, one may NOT used deadly force to defend real or personal property
1. Dwelling: In limited circumstances, such as where the intrusion/burglar appears to pose a danger of a violent felony, one may be able to use deadly force if the owner believes the burglar is armed or dangerous to the safety of the inhabitants.
C. Mechanical Devices: a property owner can use mechanical devices to defend property1. Non-deadly devices: a non-deadly device may be used whenever it is reasonable to do so (barbed wire)2. Deadly devices: courts look less favorably on using deadly devices
a. Traditional view: D could use a mechanical deadly device if the situation were one in which D himself could use deadly force
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b. Modern/MPC view: this view prohibits the use of such devices, even if the D would have been justified in using deadly force were he present
NOTE: Minority of states – allow you to use deadly force to defend property if someone is stealing in your presence
LAW ENFORCEMENT DEFENSES Defense of Crime Prevention
o Modern Law: Deadly force can only be used if one reasonably believes it is necessary to prevent a
forcible or atrocious felony. Defense of Escape Prevention: Use of force to effectuate an arrest or prevent someone from escaping after
arrest. Modern Law: Constitutional Rule
o Rule today for dangerous felonies: is that deadly force may be used by a police officer to
prevent the escape of an arrestee only if: (only applies to govt. agents, not private citizens) 1) It is shown that deadly force was reasonably necessary to prevent the escape
2) If practical, the officer warns the suspect of intention to use deadly force
3) Officer has probable cause to believe that this person, if not arrested immediately, posses a significant threat of death or serious bodily harm to police or others.
NECESSITY (CHOICE OF LESSER OF TWO EVILS) [only used as a last resort defense] Natural Forces Create – (separates necessity from duress)
Elements of the Necessity Defense 1) Greater Harm: the harm D seeks to avoid must be greater than the harm D causes (by violating law)2) Reasonableness: the harm D seeks to avoid must reasonably appear greater than the harm he causes
The defendant’s actions are evaluated in terms of the harm that was reasonably foreseeable at the time, rather than the harm that actually occurred.
3) No alternative: there is no alternative that would also avoid the harm, yet would be non-criminal or a lesser offense (no effective legal alternative)
4) Imminence: the harm is imminent, not simply in the future5) Situation not caused by D: D not at fault in brining situation about; didn’t put himself in the
situation/position where emergency would arise -- “Clean Hands”
NOTE: a. Necessity is Not a defense to murder (intentional killing) at C/L b. In contrast to duress, the harm D seeks to avoid doesn’t have to be serious bodily harm, but may
be non-serious harm or even property damage (not economic harm)
MPC Section 3.02 – Choice of Evils Defense The necessity defense is broader under the Code than under common law and many non-Code-based
statutes. Under the Code, otherwise unlawful conduct is justified if:(1) the defendant believes that his conduct is necessary to avoid harm to himself or another;(2) the harm to be avoided by his conduct is greater than that sought to be avoided by the law prohibiting his conduct; and(3) there is no legislative intent to exclude the conduct in such circumstances. [MPC 3.02(1)]
o Unlike common law, the Code does not require that the harm be imminent or that the defendant
approached the situation with “clean hands.” Furthermore, the common law limitations regarding natural forces, homicide cases, and protection or persons or property are inapplicable for Code.
o NOTE: must be the lesser of two evils, NOT one life to save another, but one life to save two lives is
permissible (only exception is when two will die if one isn’t sacrificed – ex. rock climbers)
ELEMENTS OF DURESS69
General Principle: (threat, fear, imminent danger, bodily harm) Generally speaking, a person may be acquitted of any offense except murder if the criminal act was
committed under the following circumstances:(1) Another person issued a specific, immediate threat to kill or grievously/seriously injure the
defendant or a third party, particularly a near relative, unless he committed the offense;(2) The defendant reasonably believed that the threat was genuine (well-founded fear);
Depends on who’s threatening you(3) The threat was “present, imminent, and impending” at the time of the criminal act; (not in future)(4) There was no reasonable escape from the threat except through compliance with the demands of
the coercer; and(5) The D was not at fault in exposing himself to the threat.
NOTE: The defense is available in non-homicide cases (not a defense for intentional killings or M/S) If the state’s theory of homicide is a felony-murder -- and if duress is a defense that prevents you
from being guilty of felony, then you are not guilty for an incidental murder (F-M = felony + death = murder)
MPC Duress It is an affirmative defense that actor engaged in criminal conduct b/c she was coerced to do so by use
of or threat to use unlawful force against her person or the person of another. The threat to D must be one that that a person of reasonable firmness in the D’s situation would
have been unable to resist. Distinguished from Common Law (much broader than C/L)
o No limitation by crime – is a defense for all crimes (even murder)
o Threat need not be an imminent deadly threat. (can be a physical threat)
INTOXICATION Voluntary Intoxication (self-induced) – a person chooses to get drunk or do drugs.
C/L Rule: Voluntary intoxication is NOT an excuse/affirmative defense for criminal conduct. May still serve as a mens rea defense.
o Voluntary Intoxication may negate the mens rea required in definition of the crime. If it does,
an essential element of the crime hasn’t been proven by prosecutor and D should be acquitted. Traditional Distinctions:
o If general intent crime, voluntary intoxication will NOT be a defense.
o If SI crime, voluntary intoxication will be a defense if D’s condition, b/c of intoxication, is so
extreme that he lacked specific intent component of the crime. (lacks M/R required for crime) Modern Trend:
o Courts don’t distinguish b/w GI and SI crimes and D is required to show that his intoxication
negated the intent required for the crime (intoxication prevented necessary M/R) o EXCEPTION: intoxication won’t negate the element of Recklessness
Model Penal Code General Rule – Model Penal Code § 2.08(4)–(5) distinguishes three types of intoxication:
(1) voluntary (“self-induced”) intoxication; (only a defense if it negates an element of crime)(2) pathological intoxication; and(3) involuntary (“non-self-induced”) intoxication.
Exculpation Based on Intoxication
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o Mens Rea Defense – Any form of intoxication is a defense to criminal conduct if it
negates an element of the offense. (NOTE: recklessness will not negate M/R) o Insanity – Pathological and involuntary intoxication are affirmatives defenses, if the
intoxication causes the defendant to suffer from a mental condition comparable to that which constitutes insanity under the Code.
Involuntary Intoxication – Occurs in one of three following situations
o Innocent mistake - Person ingested intoxicate innocently or without knowledge.
o If person is forced to take the drug
o Pathological – a temporary psychotic reaction -- > If a person is taking a prescribed
medication and has an unforeseeable or intoxicating response b/c of an allergic reaction.
Most courts will permit these defenses to GI and SI crimes Allows D to assert a “temporary insanity” defense D can assert that the intoxication negated an element of the crime, even if it is recklessness
INSANITY DEFENSEUsually an Affirmative Defense (in jurisdictions where the defense exists, the D must prove that he was insane)
1. M’Naghten Test – as a result of mental disease or defect, D is: (this is NC) a. [incapable of knowing] did not know nature and quality of act he was doing (or)b. [incapable of knowing] did not know what he was doing was wrong
2. “Irresistible Impulse” – added to allow for possibility of knowledge, but inability to stop behavior D knows his behavior is wrong, but by an insane impulse is irresistibly driven to commit act D was unable to choose b/w right and wrong behavior (but knew behavior was wrong)
3. Product Test - DC circuit invented this test – is a “but-for” test Unlawful act that is a product of a mental disease or defect
4. Model Penal Code Test – A person is not responsible for his criminal conduct if, at the time of the conduct, as the result of a mental disease or defect, he lacked substantial capacity to:(1) appreciate the “criminality” (or “wrongfulness”) of his conduct; or(2) to conform his conduct to the requirements of the law.
This test does not require total mental incapacity.
5. Incompetency to Stand Trial – regardless of D’s mental state at the time of the crime, an accused cannot be tried for a crime if:
1. At the time of trial she is:a. Incapable of understanding the nature of the proceedings, orb. Of assisting in her defense in a rational or reasonable manner
Voluntary Manslaughter: Provocation Doctrine – “Sudden Heat of Passion” C/L Definition: intentional homicide committed in sudden heat of passion as a result of adequate
provocation ---- mitigates murder -- > M/S 4 Elements to C/L defense:
1. Actor acts in heat of passion – any violent and intense emotion2. Passion is the result of adequate provocation3. Actor has no reasonable opportunity to cool off (reasonable person would not have cooled)
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4. Causal link b/w provocation, passion, and homicide --- D has not cooled off
Element 2: Adequate Provocation = amount of provocation excited by the circumstances in the mind of a reasonable person
o C/L categories that qualified as adequate provocation:1. Aggravated assault and battery2. Mutual combat3. Commission of a serious crime against a close relative of the D4. Illegal arrest5. Observing spousal adultery
NOTE: words, no matter how insulting or offensive, ≠ adequate provocation at C/L
o Modern Law - what constitutes adequate provocation is now a jury issue Adequate provocation = ordinary/prudent person, incapable of cool reflection, who acts
rationally and in passion, not out of reason Non-penal code states : words alone do not provide adequate provocation
Element 3: Reasonable Person o Ordinary person who occasionally acts out of control o Average disposition, sober, normal mental capacity o 2 ways D’s personal characteristics are considered/inform the actor’s situation:
1. Gravity of the provocation to reasonable/ordinary person -- > factors in height, weight, sex, race and culture
2. Level of self-control to a reasonable/ordinary person -- > not as likely to subjectivize this element as the gravity element
Element 4: No Opportunity to Cool Off o Cooling off ≠ sudden actiono Adequate provocation is unavailable if reasonable person would have cooled off b/w time of
provocation and the fatal act o Causal connection: motivation for homicide must be related to the provocation
Involuntary Manslaughter: Criminal Negligence (unjustified risk taking) C/L Definition: when a person commits a lawful act in an unlawful manner without due caution and
circumspectiono Involves a gross deviation from the standard of care a reasonable person would exercise in the
same situationo IMPORTANT: consciousness of risk taking distinguishes murder from M/S
Know and disregard = murder (recklessness) Should be aware, but is not = M/S (negligence and maybe recklessness)
Misdemeanor M/S Doctrine: Manslaughter – Unlawful Act o Involuntary M/S = accidental homicide that occurs during commission of an unlawful act not
amounting to a felony (analog to felony-murder rule)
Criminal Homicide under the Model Penal Code A person is guilty if they unjustifiably and inexcusably take the life of another human being purposely,
knowingly, recklessly, or negligently No one year and one day rule like in C/L Note: NO degrees of murder in the MPC, NO malice requirement, and NO FMR -- > just a rebuttable
presumption of “recklessness…manifesting extreme indifference to the value of life” where D is engaged in or an accomplice to robbery, rape, arson, burglary or felonious escape. (no presumption/automatic guilt for murder as in C/L)
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3 forms of Homicide: 1) murder 2) M/S 3) negligent homicide 1. Murder – requires P/K or recklessness w/an extreme indifference to human life (1st degree felony)
(intentional taking) (depraved heart murder)
2. M/S: guilty if: (2nd degree felony) 1. Recklessly kill another (reckless homicide – NO extreme indifference required here)
Note: under MPC, M/S can’t be founded on criminal negligence (requirement of subjective fault, e.g. conscious disregard of substantial and unjustifiable risk, critical for M/S)
2. Extreme Mental and Emotional Disturbance (EMED): a person who would be guilty of murder b/c she P/K took life or killed recklessly with extreme indifference is only guilty of M/S if killed V while suffering EMED for which there is a reasonable excuse or explanation
a. Reasonableness of explanation/excuse is determined from perspective of person in the actor’s situation under the circumstances as he believes them to be
b. EMED is much broader than C/L provocation doctrine c. EMED = subjective component; Reasonable explanation/excuse = objective component
3. Negligent Homicide: criminally negligent homicide (aka involuntary M/S at C/L) is a lesser offense under MPC (3rd degree felony)
Comparison of EMED (MPC) to Sudden Heat of Passion (C/L)o EMED is much broader
1. No specific provocative act required to trigger EMED defense a. Must only prove that homicide occurred as a result of EMED and that there is a
reasonable explanation or excuse2. Provocation need not involve injury or affront to/upon D by V
(NO Causal Connection) 3. Incident V provoked need not fall within any fixed category
Words alone CAN suffice and will allow a mitigation of murder to M/S 4. NO rigid cooling off rule – suddenness requirement is absent
CRIMINAL HOMICIDE: GENERAL PRINCIPLES A killing committed without a justification or excuse MURDER = the killing of a human being with malice aforethought (no degrees at C/L) MANSLAUGTER = unlawful killing without malice aforethought
MURDER: Aforethought -- > no longer has to be great length of time, can be momentary Malice: 4 mental states possible
1. Intent to kill a human being [express malice] --- (desire or substantial certainty)2. Intent to inflict grievous bodily harm/injury [implied malice] -- (subjective idea D must realize)3. Extremely reckless disregard (indifference) for the value of human life (depraved heart murder)
[implied malice]4. Intent to commit a felony and during the commission or attempted commission a death results
o FMR -- [malice substitute]
o Felonies that qualify for the felony murder rule are normally malium in se and are thus
inherently dangerous felonieso They typically are: robbery, rape, arson, burglary and kidnapping
o NOTE: assault will typically not serve as the basis for a conviction using the FMR
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o REMEMBER: to apply FMR, the underlying felony must be independent from the accidental
death AND the underlying felony must be inherently dangerous (malium in se) o LOOK: for the possibility that the D may have acted with a depraved heart and thus even if the
FMR doesn’t apply, D may still be guilty of murder under the depraved heart theory
MANSLAUGHTER: Types of Unlawful Killings (without malice) 3 types:
1. Voluntary Manslaughter -- Intentional killing: “in sudden heat of passion” as a result of sudden and adequate provocation [mitigates murder -- > M/S]
2. Involuntary Manslaughter – Unintentional Killing: a lawful act done in an unlawful manner without due caution and circumspection (like criminally negligent homicide) a. Gross negligence = inherently dangerous b. Ordinary recklessness = conscious disregard for substantial and unjustifiable risk W/O wanton
indifference for value of human life 3. Unlawful Act/Misdemeanor M/S
o Unintentional killing that results during the commission or attempted commission of an
unlawful act not amounting to a felony
S ELF-DEFENSE A. Generally: general right to self defense against the use of unlawful force. When successfully asserted is a
complete defenseNOTE: this is normally an affirmative defense that D must raise and on which he has the burden of persuasion – must prove the elements of the defense by a preponderance of the evidence
B. Requirements: 1. Resist unlawful force: D must have been resisting present or imminent use of unlawful force2. Force must not be excessive: degree of forced used by D must not be more than reasonably
necessary to defend against threatened harm3. Deadly force: the force used by D may not be deadly (likely to cause death or serious bodily
injury) force unless danger being resisted is also deadly force4. Aggressor: D must not be aggressor, unless: (1) he was non-deadly aggressor confronted with the
unexpected use of deadly force; or (2) he withdrew after initial aggression, and the other party continued to attack
5. Retreat: (in some states) – D must not have been in a position where he could safely retreat, unless: (1) the attack took place in his home/castle; or (2) D used only non-deadly force
C. Requirement of “Unlawful Force”: self-defense is only available where D is resisting unlawful force1. This generally means the other party must be committing a crime or a tort 2. Other party uses excessive force: when the other party uses excessive force to defend his person or
property (more than is lawfully allowed), D may treat the force as unlawful and resist with force3. Reasonable mistake by D: if D makes a reasonable mistake about the unlawful status of force being
used against her, she can still claim self-defense (not so for an unreasonable mistake) D. Degree of Force: D may not use more force than reasonably necessary to protect himself
1. Use of non-deadly force: D may use non-deadly force necessary to resist any unlawful attacka. No need to retreat: if you are using non-deadly force (even if could retreat safely)b. Prevention of theft: may use non-deadly force to protect against theft
2. Deadly force: D may defend using deadly force ONLY IF the attacker threatens D with serious harm a. Firing a gun normally constitutes deadly force – It doesn’t matter the actual result, just that
potentially deadly force was usedb. Verbal threats – don’t constitute deadly force, unless D intends to carry out threatc. Nature of attack: D may use to defend against serious bodily harm (i.e. kidnapping and rape)
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d. Effect of mistake: reasonable mistake will still permit D to use self-defense E. Imminence of Harm: harm must be reasonably imminent
1. MPC/Liberal View: D may use force to protect himself against unlawful force that will be used “on the present occasion.”
2. Withdrawal by the aggressor: if the aggressor w/draws, then the V loses his right to use force, unless the aggressor is going to get reinforcements
F. Aggressor may not claim self-defense: the initial aggressor (one who precipitates the conflict or strikes the first blow) may NOT claim self-defense 1. Aggression w/o actual force: D can be the aggressor if does an unlawful act that provokes the physical
conflict (doesn’t have to actually strike the first blow – can simply brandish a knife)2. Exceptions: 2 exceptions to rule that an aggressor loses privilege of self-defense:
a. Non-deadly force is met with deadly force: if D provokes exchange by using non-deadly force, but other party responds with deadly force, then D may then defend himself, even through use of deadly force
b. Withdrawal: if initial aggressor withdraws from conflict and V initiates a second conflictG. Retreat: some states are duty to retreat states if the D can do so safely prior to using deadly force
1. No retreat required prior to the use of non-deadly force2. Retreat is required only where it can be done safely (if D reasonably, but mistakenly believes he can’t
retreat safely, then he will still be protected)3. Retreat in D’s dwelling: no requirement that D retreat from his dwelling before using self-defense
a. Not applicable if D is the aggressor b. Assailant is also resident: split in jurisdictions
H. Effect of mistake D’s mistake concerning the need for self defense may be a mistaken belief that: (1) He is about to be attacked(2) The force used against him is unlawful(3) Only deadly force will suffice to repel the threat; or(4) Retreat could not be accomplished safely
1. D’s mistaken belief must be REASONABLE to claim self-defense (objective standard)2. D will lose the right to use self-defense if his mistaken belief is unreasonable [Majority View]
a. MPC/minority view: even an unreasonable, but genuine mistake will protect D(note: this does not apply when the crime can be committed by reckless or negligent M/R)
b. Not totally Subjective: even courts that use the objective standard of reasonableness allow for:i. D’s physical disadvantages, when determining the reasonableness of his mistake
ii. D’s past experiences and knowledgec. Intoxication: will NOT excuse D’s unreasonable mistake
I. Battered Women and Self-Defense: Generally applicable rules of self-defense apply 1. Standard for Reasonableness: takes into account prior history of abuse, but not particular psychology2. Imminence of danger: woman must kill when imminence is present (must be done during physical
confrontation) J. Resisting arrest: very limited right to use force to resist an unlawful arrest and normally only non-deadly
force is allowed. Also, a person may use non-deadly force to resist an arrest made with excessive force or in a situation where the D believes he will be injured
K. Injury to third persons: if D injures a 3rd person/bystander while using force to protect himself, his liability is measured as it would be were it the assailant who was injured 1. D not reckless or negligent: D will not be liable if his self-defense as to the assailant was proper2. D is reckless or negligent: D may NOT claim self-defense (can be guilty b/c acted recklessly with
respect to the bystander, even if was privileged to use force against assailant)
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L. “Imperfect” Self-Defense: D may be able to claim “imperfect” self-defense that will reduce his crime from murder -- > voluntary M/S if D killed in self-defense, but failed to satisfy one of the elements of the offense 1. Unreasonable mistake: as to the need for force or unlawfulness of other party’s force2. Initial Aggressor3. MPC view: unreasonable mistake = M/S if D is reckless in his mistake
o If D is negligent in his mistake, then = criminally negligent homicide
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