Theories of Punishment
Utilitarian: pleasure or pain experience or inflicted measured
by the total happiness of community. Purpose is to exclude
mischief, so punishment mischief must be less than mischief of the
crime. (Forward looking/ consequentialist theory) So, want to
punish in a way that is less costly than the crime prevented to
maximize net benefit to society. Assumes rational actors making
risk/benefit calculations, which is dubious since most criminals
probably are lacking in sound judgment.a. Sub-Theories as Part of
Utilitarianism: i. Deterrence (Greenawalt): Individual/Specific or
General1. Individual/specific deterrence: Encouraging that person
not to do that thing againa. Utilitarian perspective argues for
more severe punishment of repeat offenders because they werent
deterred the first time.2. General deterrence: Setting an example
to discourage society as a whole from doing that thinga. Benefits
of crime outweighed by punishment, even when discounted by
probability of avoiding detectioni. POLICY: Would argue that the
greater the temptation to commit a crime and the smaller the chance
of detection need more severe punishment to deter.ii. Policy: Want
to deter criminals from escalating crime, thus the need for
graduated punishment; severity of punishment should be
proportionate to the crime so that criminals will have reason to
not take crimes to the next level (marginal deterrence)3.
Punishment x probability > expected gainii. Consequentialist:
Better for society at large to have people know the consequences of
their action (Perhaps punishment might one change his ways)iii.
Incapacitation: Better for society at large to incapacitate
individuals who committed crimes to prevent them from committing
future crimes, but ONLY when the cost of doing so is cheaper than
their potential crimes. You wouldnt just lock up everyone or kill
off any minor offender, because the cost of doing so would be more
than the cost of their crimes, which decreases net social
benefit.iv. Rehabilitation: punishing individuals so they somehow
rehabilitate, get better, and dont commit future crimes. Less
prevalent last few decades.v. Expressive Condemnation: Using the
stigma of punishment to get the D and others to internalize good
social norms and change behavior. b. Benthams classical
utilitarianism: Maximizing pleasure and minimizing pain. i. If your
crime has no bearing on the magnitude of the punishment you
receive, what's the point? Need proportional punishment to achieve
deterrence.ii. Net happiness calculations: would even allow
punishment of an innocent person to prevent greater negative
impact.c. Criticisms of Utilitarian Theory of Punishment:i. Tries
to reduce everything to net happiness or pain v. pleasure; this is
a difficult task, because we all have different kinds of
experiences in the world difficult to measure by utility. ii. Kant:
Said that one man shouldnt be punished as a means subservient to
the purpose of another; shouldnt allow one mans crime &
punishment to deter other men from committing such crimes. A
criminal sentenced to death shouldn't be let off for medical
experiments; justice wouldn't be justice.
Retributivist: Moral Desert of offender is sufficient reason to
punish; he did something wrong, and he should pay for it
[deterrence just a happy surplus]. Notion that offenders are
deserving of punishment because of what they did, so culpability
not the harm of the crime or the wrongfulness of the act is what
justifies punishment. (Backward looking theory)a. Factors: Mental
state, voluntary engagement in socially harmful acts, actual social
harm, lack of justification or excuseb. Negative retributivism:
guilt as a necessary condition of punishment; i. Positive
retributivism: guilt is both a necessary and sufficient condition
of punishment-- Must be punished even if no deterrence goal can be
served.ii. Negative retributivism: Moral desert is necessary for
punishment, but is only one of potentially more factorsc. Kant:
judicial punishment can only come when someone has committed a
crime; cant be done for the greater good of society. i. Punishment
as striking a blow in the name of moralityd. Why it's better for
society to impose punishment rather than allowing for self-help:i.
Practical effect would be disastrous otherwise; danger of cycle of
vigilante violence. Dont want retaliation without due process.ii.
But: CJ system may be less accurate in determining guilt:1.
Destruction of eye-witness accounts and evidence over time; system
doesnt always get questions of fact correct.iii. Moral condemnation
by society: Crime as an offense against the community, while civil
wrongdoings are only against individuals.
Expressive Theory of Punishment: The messages we send
[expressions] about crime are as important to society as the
practical consequences imposed by punishment.a. Some things we deem
morally culpable but not criminal or worthy of punishment.b.
Sometimes we define a crime based on the aggregate consequences of
that behavior at large; we want to send a message to potential
future criminals that we dont tolerate that type of conduct in our
society. i. Potential stigmatizing nature of having a criminal
record, or idea that it shames a criminal gets at deterrence, but
away from rehabilitation. ii. All about protecting the community
interest. c. Why do we need imprisonment?i. Wouldnt it meet our
goals to just publicly condemn the action? Prison is costly to the
state and the prisoners families. ii. But, expressive credibility
of punishment needs proportionality: want the stigmatizing tool of
imprisonment to be available. Key Ideas: Reason we think about
punishment theory is that punishment means inflicting pain on
people, so we need to somehow justify it to make it morally
legitimate.a. Three questions that we need to address when
discussing theories of punishments:1. Is the social institution of
punishment warranted?2. What conditions are necessary for criminal
liability and punishment in particular cases?3. What form and
severity of punishment is appropriate for particular offenses and
offenders?b. Reasons why we punish divide into two categories:i.
Forward looking: how it will deter future crimeii. Backward
looking: focusing on what the person did in the pastc. Expressive
condemnation: law sends a message about the wrongfulness of
conduct. Society thinks it's wrong for a criminal to elevate
himself above the victim. Punishment as a way of restoring that
balance. i. Can be expressed in consequentialist and
non-consequentialist terms. ii. Helps to build social norms and
change behavior in the long run. d. Why punishment matters: it
matters how society defines crime.i. Different intuitions about
appropriate punishments lead to different notions of what is
criminal, and how criminal it is.ii. Also leads to different
justifications and excuses (see DEFENSES) for crimeiii. Weighs into
sentencing: no concrete decision about which punishment theory is
the best, so judges might weigh sentencing options based on these
different theories.
Canons of Statutory Interpretation
Prohibition on Common Law Crimes- No new judge-created common
law crimes are allowedLimits on statutes1. Must give fair notice
(no ex post facto laws)2. Can't deny due process to DFour ways to
interpret a statute (FEDERAL ONLY, state courts are final authority
on how to interpret state statutes):1. Text of the statute
(rebuttable presumption that text is constitutional)2. Indicators
of legislative intent: Can include goals/ structure of law,
legislative history, prior judicial interpretations, common law,
similar language in other provisions, assume words aren't
superfluous.i. Fulfill legislative purpose, but give fair notice to
D3. Rule of lenity: If statute is still vague, courts define it
narrowly. Strict construction. This is usually in favor of the
defendant, but not automatic.4. Void for vagueness: no plausible
narrow reading that reaches only clearly covered conduct exists.
Last resort.
Principle of Legality: Prohibition on retroactive criminal
lawmaking. Criminal statutes should be understandable to ordinary
citizens. No crime without law. Person cant be punished unless her
actions were defined as a crime at the time of commission. Idea of
fair notice of the criminality of certain types of actions.1. Cant
be convicted of a crime unless it was a crime when you did it. a.
Utilitarian rationale: Wouldnt serve a deterrence purpose if people
are punished for things that werent crimes in the first place. Want
people to be free to pursue their own happiness unless it directly
conflicts with some principle society has already establishedb.
Retributivist rationale: people arent morally blameworthy if it
wasnt a crime when they did it [Legality principle as a RESTRAINT
on Retributivist perspective]2. Due Process and Ex-Post Facto
rationales: [Ex post facto] constitution prohibits retroactive
legislation and retroactive judicial lawmaking. [Due process]
prevents courts from interpreting existing criminal statutes in
ways that would be unpredictable to persons at the time of
committing the act. 3. Is it there to protect people who are truly
innocent or people whose actions would be elevated to a different,
more serious crime based on the new law? Unclear.
Lenity Doctrine: (also called Strict Construction) Judicial
interpretation of ambiguous statutes should be interpreted in favor
of the accused. Will often narrow the definition of the crime. A
form of constitutional avoidance. Must be balanced with the
obligation to vindicate legislative intent. Justices disagree on
what degree of ambiguity triggers the Lenity Doctrine. Should be
applied when courts can only guess what the legislature intended.
(Muscarello v. US; Reno v. Koray). Rule of Lenity does not
automatically permit a defendant to win. (Muscarello). Often used
as a reason to overturn a conviction for other reasons that the
court doesnt wish to disclose. Rule of lenity most likely to be
used in favour of defendant when the crime committed is malum
prohibitum, not malum in se.4. Policy: Why we think people would be
more on-notice of statutory law than common law?a. Codified law
helps to reign in judges and hold them accountable. i. Issue of who
is better at writing these codes: judges (who know law) or
legislatures (who know their constituents and the issues in
communities)ii. Maybe good to have legislature decide on the codes
because they are democratically elected and are accountable to
their constituents. But, unclear if legislatures are really
representing the peoples interest, and Democracy isnt always a
great check on state power.b. MPC Set up to codify the ideal penal
code as developed by ALI. Motivated partly by lack of uniformity
within the states, or coherence. Vagueness Doctrine: Criminal laws
that are so ambiguous that they do not provide fair notice as to
what conduct is prohibited may be struck down as void for
vagueness. If statute is over or under-inclusive, and doesnt have
broad literal meaning that is easy to determine, then might be void
for vagueness. Court decides, based on statutory interpretation,
what the meaning is and then if that meaning is clear enough in the
words of the statute. "No more than a reasonable degree of
certainty can be demanded." (Boyce rule). Again, often used as a
pretext for throwing out laws or reversing convictions decided on
other reasons that the court doesnt wish to disclose.
Cases Muscarello v. US (lenity): Does "carries a firearm"
include transporting a firearm in the glove box of a car? SCOTUS
rules that there is not enough ambiguity to invoke the Rule of
Lenity and this definition does include transporting a gun in a
locked glove box. SCOTUS analyzes text and intent to come to this
conclusion. In re Banks (vagueness): Since the peeping tom statute
required the activity to be done "secretly" this implied that
intent was required, which limited the statute to not include
innocent conduct, and therefore provided notice to a person of
ordinary intelligence. It is not overbroad to proscribe legitimate
conduct. Chicago v. Morales (vagueness): Chicago city council
passes an ordinance which prohibited gang members from loitering.
This statute is void for vagueness because it affords too much
discretion to the police and too little notice to citizens who wish
to use the public streets. Scalia has a convincing dissent. He
believes the citizens of Chicago should be able to deprive
themselves of the freedom to hangout on street corners. "Court has
no business second guessing either degree of necessity or the
fairness of the trade."
Voluntary act or omission (Actus Reus)
MPC 2.01: Requirement of Voluntary Act; Omission as Basis of
Liability; Possession as an Act1) A person is not guilty of an
offense unless his liability is based on conduct which includes a
voluntary act or the omission to perform an act of which he is
capable2) The following are not voluntary acts within the meaning
of this section: a) reflex or convulsion, b) bodily movement during
unconsciousness or sleep, c) conduct during hypnosis or resulting
from hypnotic suggestion, d) a bodily movement that otherwise is
not a product of the effect or determination of the actor, either
conscious or habitual.3) Liability for the commission of an offense
may not be based on an omission unaccompanied by action unless: a)
the omission is expressly made sufficient by the law defining the
offense or, b) a duty to perform the omitted act is otherwise
imposed by law.4) Possession is an act, within the meaning of this
Section, if the possessor knowingly procured or received the thing
possessed or was aware of his control thereof for a sufficient
period to have been able to terminate his possession.
Test:1. Was the act voluntary? Was the omission voluntary? Was
there a legal duty to act imposed on D or was the omission illegal
by statute?2. Did you have a choice/ choose to do the action? Or
was it a result of sleep walking, reflex, hypnosis, unconscious? 3.
Possession Mens rea is usually knowledge Awareness of the drug is
required to meet voluntary act [constitutes constructive
possession, inferred from driver, owner of property, quantity,
acting suspecious ]
Actus reus is the [voluntary] physical or external part of the
crime and must be proved beyond a reasonable doubt. Omissions
Negative Acts: Failing to act as a basis for liability. [omissions
liability is disfavored] a. Overview: Usually omissions can court
as acts only if a statute says they do; either a statute of general
application or the statute defining the crime. Omissions only count
if the D has an affirmative duty to act, such as one based on the
special relationship between the D and the victim, or an assumption
of care, or the D created the danger for the victim. Must be a
legal duty. No legal duty to prevent or report crimes, unless one
of the special sources of duty exists.b. Classic source of
affirmative legal duty: if you put someone in a position of being
dependant on you to take actions to protect them, and you fail to
take such actions [omission], you will be held culpable.c. Policy:
too slippery of a slope to impose duties on everyone to help
everyone else out; but maybe, morally, we want to impose that duty.
If some sort of established relationship, maybe we should require
the person to aid.d. Why we dont criminalize for failure to help:
Non-doings are more ambiguous than wrongdoings; harder to determine
motives and culpability. Sometimes well-meaning bystanders might
make matters worse by intervening. Laws requiring people to do
things might infringe on individual liberties.e. Bystander
responsibility: majority(no duty to report crimes except child
abuse if mandatory), Minority (failure to report certain crimes is
a misdemeanor)i. People just walk by a crime scene and do not help
out the victim. Should people have a duty to help? Maybe they will
be put in danger or mis-assess a situation. Run the risk of making
the situation worse.Cases Ray Billingslea Case (no legal duty,
omission): Conviction overturned because there was no statutory
duty to take care of his mother under the law at the time. People
v. Beardsley (moral duty, omission): Man cheating on his wife with
mistress in hotel room, goes on bender, mistress takes a lot of
pills and man told others at hotel to take care of her, and she
died. Prosecution tried to convict him of manslaughter, saying he
had a duty to act [to care for the mistress] and failed to meet his
duty. Has to be a legal duty and not just a moral duty to act.
Omission is a basis for criminal liability only if there was a
legal duty to act that was breached.
Mental state (mens rea)
MPC 2.02 (See attached): If mental state not specified in
statute, reckless is the required mental state. Purposely: aim with
intent. [natural and probable circumstances: juries may presume one
intends the natural and probable consequences of actions]
Knowingly: knowledge of a high probability, but no aim. Substitutes
for willfully. High probability satisfies willful blindness.
Non-MPC jurisdictions apply willful blindness as a type of
recklessness. Recklessly: Consciously disregard a substantial and
unjustifiable risk. Need gross deviation from expected behavior.
Objective, considering circumstances. Negligently: Not aware but
should be aware of a substantial and unjustifiable risk. Need gross
deviation from expected behavior. Objective. Criminal negligence is
gross negligence, a substantial risk Other mental states? Malice
(purposefully, knowingly or recklessly); Wilfully (generally, under
MPC, means purposefully or knowingly); Intentionally (often means
purposefully or knowingly, but some statutes say it just means
purposefully).
Must consider Mens Rea for all components of a crime: the
conduct, result, and attendant circumstances Act the nature of the
forbidden conduct Result of the conducta. [natural and probable
circumstances: juries may presume one intends the natural and
probable consequences of actions] attendant circumstancesa.
Knowledge is satisfied by D knowing with a high degree of
probability. Willful can be substituted with knowledge.
Test:1. Is the statute a strict liability statute? (public
welfare can be implied SL under common law but not MPC)2. What
mental state is required? (If not specified in statute, MPC default
is reckless, federal is knowledge).
Defense test1. Was there an honest [subjective] mistake of fact?
(this is a complete defense if it negates the required mens rea)2.
Mistake of Law: A misreading of the law (even an ambiguous law) is
not a mistake of law.1. Was there a reliance on a court opinion or
an official statement by an agency interpreting the law (statute
required)?2. Mistake of law always a defense if it negates a mental
state. [Affirmative defense under MPC 2.04(3)(b)]3. Does Lambert
exception apply? Was there sufficient notice of the law? (very
rare, usually applies to obscure or very recent laws)3. Given the
mistake of fact as you perceived it, did you act as a reasonable
person would? (objective)
Definition Broad view: morally blameworthy state of mind,
generally speaking. Narrow view: culpable mental state with regard
to the social harm element of the offense. Intent/Purpose v.
Motive: Intent is what you knowingly or purposefully do, including
the prohibited results you knowingly or purposely cause. Motive is
why you do it. Motive is almost never an element of the crime; the
law doesnt care why we did things. It cares what we did.
Prosecutors often discuss motive because they think juries are more
likely to commit a crime if they understand why he might have
wanted to do it.Intent (old common law) Common law definition: one
intends not only those results that are the conscious object of the
actor, but also those results that the actor knows are virtually
certain to occur from his conduct, even if he does not want them to
arise. MPC equivalent of purposefully or knowingly Natural and
probable: one intends the natural and probable consequences of his
actions... allows jury to infer, not presume. Transferred intent:
the D's guilt is exactly what it would have been had the blow
fallen upon the intended victim instead of the bystander. May be
unnecessary because intent to kill could be sufficient instead of
intent to kill a specific person. General intent: any mental state
required that relates solely to the acts that constitutes the
social harm. (an intentional application of force upon another)
Specific intent: requires a intention to commit a future act, a
special motive, or awareness to an attendant circumstance. (with
intent to _____)Knowing v. reckless: level of certainty is the
deciding factor. This is a question for the jury.Hierarchy of
mental states: Set up in MPC 2.02(5) any lesser standard of care
than described in the statute is also sufficient to create
culpability under the statute. Policy rationale: [R] purposefulness
is especially bad because it says something nasty about D. How
morally culpable do we think people are, based on their actions?
Negligence is an exceptional basis for criminal liability: few
statutes have negligence as the mental state; homicide does because
we think death is the type of risk we want to incentivize people to
avoid. Unless it is clear in the statute, a mental state provided
at the beginning of the statute will apply to everything that
follows it (rather than merely modifying the one verb that comes
immediately before it) MPC 2.02(4): if statute doesnt proscribe the
culpability to a specific material element, it applies to all
material elements.**
Strict Liability Policy Justification (public welfare offenses
and strict liability crimes) [U]- strict liability does not deter
because you are punished regardless of mental state. If fines are
low, may be treated as a license and not deter. May incentivize a
very high level of care. [R]- it is unjust to punish a person who
is not morally culpable. Dilutes moral force of the criminal law
that was historically carried. Policy- cheap administrative costs.
Maybe reflects community standards to punish for these crimes, but
sometimes juries unwilling to convict without a mental state.
Eliminating mental state may lead to a very slippery slope. There
may be a due process problem as well. Court interpretation:
extremely disfavored except for public welfare exceptions (MPC has
no exceptions). Won't read it into a statute because of lenity
doctrine.
Mistake of fact v. mistake of law Mistake of fact negates the
MPC mental state Purpose- any mistake as to existence, knowledge-
any mistake as to high probability, reckless- any mistake as to
substantial risk, negligence- any reasonable mistake as to the
substantial risk. SL: no mistake of fact defense, since no required
mental state. Given the mistake as you perceived it, did you act
like a reasonable person? Objective standard. Mistake of law:
ignorance of the law is not excuse, because knowledge of the law is
not a material element of the crime. If it is, ignorance is a
defense. Lambert: if you didn't have fair notice of the law's
existence, you have a due process defense. (usually omission or
obscure law) The MPC: denies mistakes based on the penal law, but
mistakes about other laws (property law, contract law, whatever)
are considered mistakes of fact or law that are a valid defense. We
want to punish people who do bad things by breaking criminal law,
but b/c property law, etc. dont have the same moral expressivity
that the criminal law does, mistakes violating them lack the same
level of moral culpability that can still be punished after
mistakes of criminal law. Mistake of law def. allowed when: 1) the
statute says mistake of law is a defense; 2) knowledge is part of
the offense; 3) when the defendant was relying on an official
statement that was misleading (MPD: and was later deemed erroneous
or invalid).
Cases Staples v. United States (strict liability, need to
specify): D did not have required notice for a strict liability
crime. Strict liability is disfavored and the common law generally
requires a mental state unless if the public welfare law. Congress
needs to clearly state a statute is a strict liability crime.
Garnett v. State (strict liability, specific omission): this case
involved the statutory rape case by a mentally retarded individual.
Since the legislature put a mental state requirement in another
part of the statute, their specific omission of a mental state
constituted strict liability. Some states only require strict
liability for very young girls, but require a mental state for
older girls. People v. Navarro (mistake of fact): D convicted for
stealing what he thought was abandoned government property. An
honest mistake of fact or law is a defense when it negates a
required mental element of the crime. Subjective standard. Mistake
of fact not a defense for strict liability. People v. Marrero
(mistake of law, misreading): A federal prison offer thought he was
exempt from a no carry law because peace officers were exempted.
Mistake of law is only a defense when relying on a court opinion or
official interpretation by an official or agency (statute
required). Misreading not a defense. Cheek v. US (willful,
attendant circumstance, mistake of law): Cheek is part of a crazy
anti-tax group and doesn't pay his taxes because he doesn't think
wages are considered income. An honest but unreasonable belief can
be enough to negate knowledge requirement for an attendant
circumstance.
Causation
Test:1. Factual causation: Was the act a but-for cause of the
result? 2. Legal/ proximate causation: Was the act a proximate
cause of the result (see test below)?3. Was there a superseding
cause that negates the proximate cause of the result? (see Dressler
test)1. But-For Test. "Would the injury more likely than not (50%)
have occurred but for D's conduct?" Use unless there are multiple
sufficient causes (see below), in which case use the substantial
factor test. Ds speeding was but-for cause of Ps leg breaking
because but-for speeding, D may have been able to stopD cannot be
held liable for conduct, even if negligent, if Ps injury is to
unusual, too far removed from the type of harm to be anticipated
from Ds negligence to warrant liability.1. Directness Test
(Polemis): Did Ds actions directly cause Ps injuries? Later dropped
in favor of the foreseeability test.2. Foreseeability Test (wagon
mound). (majority test)"Was the injury the foreseeable consequence
of D's negligent conduct?" (type of harm must be foreseeable, but
not manner/extent).i. Was the risk reasonable foreseeable?ii. Was
Ps injury the type of harm that was reasonably foreseeable? (just
has to fall within the scope of the risk)iii. Was the accident
caused in a way which could have been foreseeable?a. What DOES have
to be foreseeable: that negligent conduct will cause an injury.b.
What DOES NOT have to be foreseeable: (a) extent of harm (plaintiff
dies instead of getting bruised), (b) precise manner in which harm
came about (wind blows gun off table, it discharges and wounds
child), (c) that particular plaintiff would be injured (just has to
be part of a class of foreseeable injured parties), and (d) any
additional injuries that occur in the course of treatment as a
consequence of ordinary negligence or infection (P gets hurt in
ambulance).3. Scope of the Risk: "Was the injury a realization of
the risk that made the conduct negligent?" a. Level of Generality.
Courts can manipulate the "scope of the risk" by tweaking the level
of generality (Jolley - more general risk of "children injuring
themselves after meddling with boat" vs. more specific risk of
"children falling through rotting boards).b. Danger invites rescue:
if you were neg and someone is injured while trying to rescue the
person in peril because of you, it is foreseeable that people will
try to rescue. Intervening Cause. A force that takes effect after
the defendant's negligence which contributes to that negligence in
producing the plaintiff's injury. Intervening causes are either
superseding causes (defendant relieved of all liability) or
non-superseding causes (defendant and the intervening wrongdoer are
both subject to liability). Dressler's Superseding Cause Test.
Relieves first breach from liability. Policy rationale: provides a
mechanism to limit liability for a minimally culpable party. Less
important in this era of comparative fault, and apportioned
damages.1. De minimis: if intervening cause is minor, it doesn't
break the chain of causation.2. Intended consequences: if D got the
result he was trying to bring, then the chain of causation is not
broken.3. Omissions: another person's omission will never break the
chain of causation. 4. Foreseeability*: Most important factor.
[objective] A coincidental intervening cause will not break the
chain of causation unless if it was foreseeable. An intervening
cause that is responsive will establish proximate cause. Hard to
distinguish between these two. a. Medmal is responsive, acts of
nature are coincidence, a third party response to the act is
responsive, subsequent accidents are usually responsive5. Apparent
safety: When victim reaches a position of apparent safety, the
chain of causation is broken. 6. Voluntary human intervention: The
chain of causation is broken when a victim making a free,
deliberate, and informed decision leads to an injury. 7. Other? of
the defendant's negligence, even if the intervening cause itself
was not foreseeable? Concurrent Causes. When two events each
necessary, but-for causes of the injury, occur at approximately the
same time. Dont count as superseding causes.Cases People v. Rideout
(proximate cause): Introduces Dressler's six factor test. Voluntary
human intervention and apparent safety allow the court to conclude
that the drunk driving was the proximate cause of the victims
death. The victim made the decision to return to her car and that
was what killed her. DeSean McCarty (proximate cause): police offer
who dies during the police chase was charged to the Defendant under
the felony murder rule that holds people strictly liable for
murders that occur during the felony
Homicide [intentional]: murder
MPC 210.2: Murder1) Except as provided in Section 210.3(1)(b),
criminal homicide constitutes murder when: a) it is committed
purposefully or knowingly; or b) it is committed recklessly under
circumstances manifesting extreme indifference of the value of
human life. Such recklessness and indifference are presumed if the
actor engaged or is an accomplice in the commission of, or an
attempt to commit, or flight after committing or attempting to
commit robbery, rape or deviate sexual intercourse by force or
threat of force, arson, burglary, kidnapping or felonious escape.
2) Murder is a felony in the first degree.
Test: Premeditated murder: an intentional killing that was
planned. Poisoning, lying in wait, etc. are always premeditated
killings by nature. Carroll Approach: Premeditation is a legal
fiction; court determined that premeditation can occur in the time
it takes to form intent. So pulling the trigger to kill =
premeditation. Guthrie-Anderson Approach: Premeditation is given
its psychological meaning, requires some sort of showing to suggest
premeditation such as buying a weapon, casing the scene, motive,
etc. that could suggest premeditation. MPC Committed purposefully
or knowing, or Recklessly with extreme indifference to human life.
(can be assumed, this is where Felony Murder fits into MPC)
Common law: Killing of another person; broad category,
encompasses many acts. But two major divisions: Murder and
Manslaughter. Murder: at common law, required malice aforethought
and included four typesa. Intent to kill: corresponds to purposeful
MPC mental state or knowledge stateb. Intent to cause serious
bodily harm: purpose or knowledge that what you will do will create
serious bodily harm; result element is different than the intended
result element. Intended to cause serious harm, but actually caused
deathc. Depraved Heart Murder: similar to recklessness, because its
about being aware of a risk and going forward anyway, but more than
recklessness; almost extreme recklessness. Wanton and willful
disregard of an unreasonable risk.d. Intent to Commit a Felony:
felony-murder rule. Strict liability for homicide committed during
the course of committing a felony.i. Only some states have the
distinction between 1st and 2nd degree intentional murderCases
State v. Guthrie (premeditation): D and a co-worker got in a fight
and D pulled out a knife and killed his co-worker. Court used
Hatfield jury instructions to allow the jury to decide if the
homicide was premeditated. A new trial was ordered for D. You want
to punish "hot blood " homicides less than regular homicides.
Anderson: Man brutally murders a young girl out of sexual
frustration, stabbing her over 60 times and getting blood all over
the house. The frenzied nature of the act suggested that there was
no premeditation.
Homicide [intentional]: voluntary manslaughter
MPC 210.3 Manslaughter1) Criminal homicide constitutes
manslaughter when: a) it is committed recklessly; or b) a homicide
which would otherwise be murder is committed under the influence of
extreme mental or emotional disturbance for which there is
reasonable explanation or excuse. The reasonableness of such
explanation or excuse shall be determined from the viewpoint of a
person in the actor's situation under the circumstances as he
believes them. 2) Manslaughter is a felony in the second degree.
[I'm just an asshole doesn't count, idiosyncratic moral values
excluded]Test:1. Voluntary Manslaughtera. How grave was the
provocation (subjective)? Was it reasonable for a person or
ordinary self-control to lose control (objective)? [see alternate
tests below]b. Was the killing done in the heat of passion? c. Was
there adequate time to cool off?d. Was there a causal connection
between the provocation, the passion, and the fatal act? (just
factual, not a proximate test)2. EED: Did D act under the influence
of EED? Was there a reasonable explanation of excuse as evaluated
from the viewpoint of a person in the actor's situation under the
circumstances as he believes them to be? [subjective + varies]3.
Who is the reasonable man? good to discuss
Common law: Killing of another person; broad category,
encompasses many acts. But two major divisions: Murder and
Manslaughter.A. Manslaughter: wasnt always distinguished in common
law, but it is now seen as a residual category for criminal
homicides without malice aforethought; Common Law sees distinction
between voluntary and involuntary manslaughter, and distinguishes
between the two for sentencing purposes:a. Voluntary Manslaughter:
heat of passion or provocation homicide that would typically be
murder except culpability is reduced. (EED included in some
states)b. Involuntary Manslaughter: resulting from unduly dangerous
activity or from otherwise lawful activity; reckless or grossly
negligent killing that doesnt reach the level of extreme
recklessness that would raise it to depraved heart murder.
Provocation (key debate is whether D's individual circumstances
should be taken into account when assessing whether his actions
were reasonable) Common law: provocation was limited to: 1) walking
in on a cheating spouse [few now recognize this]; 2) mutual combat;
3) physical assault. Girouard [objective]: those acts that are
calculated to inflate passions of a reasonable man. Words are never
enough. Policy: what does it mean to inflame the passion of a
reasonable man such that a reasonable man would commit a killing?
How closely should the D be held to this standard of a reasonable
person? The only reason we have this distinction is because human
are not perfect, and punishment for murder was death in the common
law. Can provocation be a repeated event or one large event? [R]
depends on the idea that we can control our behavior. [Fem] this
rule just lets men get lesser punishments for killing their wives.
Also, MPC focuses more on D's characteristics so the argument that
victim had it coming is less plausible. EED (Patterson): an action
influenced by an EED is not one that is necessairly spontaneous.
Instead it may simmer in the subconscious and then inexplicably
arise.Reasonable man standard Policy [pro subjective]: Courts allow
sex-based and age-based generalizations about an individuals
ability to exercise self-control but not usually ethnic or racial
generalizations. Maybe if people are less able to control
themselves, they didnt make a true choice to do something wrong and
shouldnt be as morally deserving of punishment. Peoples life
choices are heavily determined by factors outside of their control;
not fair to punish them for those factors. Policy [objective]:
Shouldnt allow people with bad values to get excused for having
those values/impulses; need to draw the line somewhere. Core free
will assumption of criminal law is that people should be expected
to control their actions. [assumption breaks down at some points,
like with insanity defense, but shouldnt break down here] Should
there be a distinction between addiction and voluntary use that
impacts self-control? Diminished responsibility doctrine appears in
criminal law; maybe it needs to impact how we look at consumption.
Cases Girouard v. State (provocation, words): words can constitute
provocation if they are accompanied by conduct indicating a present
intention and ability to cause D bodily harm. This court uses an
objective standard for provocation. Attorney General for Jersey v.
Holley (provocation, alcoholism): Results in instruction outlined
above. Alcoholism is not to be taken into account when the jury is
applying an objective standard. People v. Casassa (MPC, EED): D
casually dated victim and kept going to her place after they broke
up, and would listen to her with other guys. He eventually killed
her and claimed her actions caused him EED. Jury is not required to
find mitigation on any set of facts, but can do so. MPC= subjective
+ objective.
Homicide [unintentional]: accidental murder
MPC 210.2: Murder1) Except as provided in Section 210.3(1)(b),
criminal homicide [requires negligence, 210.1- most states don't
adopt this limit] constitutes murder when: a) it is committed
purposefully or knowingly; or b) it is committed recklessly under
circumstances manifesting extreme indifference to the value of
human life. Such recklessness and indifference are presumed [jury
can infer] if the actor engaged or is an accomplice in the
commission of, or an attempt to commit, or flight after committing
or attempting to commit robbery, rape or deviate sexual intercourse
by force or threat of force, arson, burglary, kidnapping or
felonious escape. 2) murder is a felony in the first degree.Test:1.
Common lawa. Was there a homicide? MPC abandoned heart: Was there a
conscious disregard of a risk of death AND callousness toward the
value of life?i. Was there express or implied malice toward the
value of human life? Does the implied malice satisfy the Phillip's
test?b. Did the homicide occur during the perpetration of a felony?
CL- SL, Other- in the abstract, was the felony inherently
dangerous, or Hybrid approachi. Does the merger rule exclude the
felony [arson and rape don't merge]?ii. If both IDF and merger
used, the only felonies inherently dangerous to life but that do
not constitute homicide are left.2. MPC: Committed purposefully or
knowingly, or recklessly with extreme indifference to human
life(jury can infer)
[Depraved Heart Murder] Implied Malice Mental State (key
necessary to meet the 1(b) requirement of murder under the MPC)
Thomas: a base, anti-social motive and with wanton disregard for
human life, does an act that involves a high degree of probability
that it will result in death. Phillips Test: an act, the natural
consequences of which are dangerous to life, which act was
deliberately performance by a person who knows that his conduct
endangers the life of another and who acts with conscious disregard
for life. (high probability of act causing death is objective,
conscious disregard is the subjective mental state) High
probability only attaches to the act element, not the mental state
[R] want to punish people more who have contempt for human life.
[U] maybe will deter people from acting with contempt toward human
life. Watson: decided Thomas and Phillips were the same test, but
Phillips was less confusing for juries. Policy: Special emphasis
that the community places on the sanctity of life. Causing death is
just that much worse than causing other harm. But, if there is a
serious risk of maiming, maybe you should know there is a serious
risk of death. Including conscious disregard of serious bodily
injury might be the best way to reach the deterrence goals. Or,
maybe serious bodily harm is harder on society than death, in the
long run. Gross negligence policy [pro gross]: Serves no deterrence
purpose, and from [R] perspective, Ds arent as morally blameworthy
because they didnt perceive the risks associated with their
conduct. Maybe the Williams conduct would have met a gross
negligence standard anyway and we dont really need to set the bar
so low. [con gross]: Want to encourage people to be careful,
motivate people to take better care.Felony Murder: any homicide
committed in the perpetration of committing or attempting a felony
is murder (strict liability) Enumerated Felonies= M1, otherwise M2
Policy: felonies used to be much more severe than they currently
are, so this rule made more sense. Felonies today are any crime
that carries potentially more than a year of imprisonment. Most
jurisdictions have 100's of felonies. Punishment: majority rule is
first degree murder, [minority] MPC is the equivalent of a depraved
heart murder, [minority] depends on underlying felony "In the
perpetration of" means basically any connection (escape, attempt,
accomplice). Police can kill people too or if your accomplice is
killed Modern limits on felony murder rule: [some states apply
both. Everything is excluded except inherently dangerous felonies
that don't constitute homicide in themselves] Limits on what
felonies qualify: Federal: crimes carrying more than a year of
potential imprisonment. MPC limits felony to homicide (which
requires negligence), but most states didn't adopt this limit.
Merger rule: felony has to be in addition to the felony used to
cause the battery/ assault. Prevents prosecution from taking every
murder and dispensing with mens rea by charging felonious assault
that results in death as felony murder. ENUMERATED FELONIES NEVER
MERGE Inherently dangerous tests: 1) always included in the
definition of a felony (CL) OR, 2) done in the abstract looking at
the elements of a crime so dangerous does not turn on the
individual facts. Yes: kidnapping, manuf. methamphetamine, shooting
an inhabited house. No: false imprisonment, grand theft, child
abuse, prison escape Assaultive Felonies Always Merge- California
Sup. Ct. Based on the elements of the crime, not specific facts.
Not an assaultive felony if there is any way to commit the crimes
elements in a non-assaultive way. UNLESS ENUMERATED- EFs never
mergeCases People v. Knoller (disregard for life): the dog case.
Jury convicted on ground of second degree murder. Owner appealed
because owning the dangerous dog was only disregarding a risk of
serious bodily injury, not a risk of death. A risk of death is
needed for a murder conviction. Some probability of death +
antisocial motive. People v. Fuller (Strict liability): Since the
statute included burglary under felony murder, this was a strict
liability crime. This burglary was not inherently dangerous. People
v. Howard (inherently dangerous): Is driving with a willful or
wanton disregard for the safety of persons or property while
fleeing from the police inherently dangerous? No, intent of leg.
when expanded felony to include more than inherently dangerous
acts. For jury to decide if this was reckless + malice.
Homicide [unintentional]: accidental manslaughter
MPC 210.4: Negligent Homicide1) Criminal homicide constitutes
negligent homicide when it is committed negligently. 2) negligent
homicide is a felony of the third degree.
Test:1. [jx] MPC: 2 different homicide theories for reckless and
negligent killings2. [jx] Recklessness for manslaughter3. [jx]
Gross negligence for manslaughter4. Misdemeanor manslaughter:
analogous to felony murder
MPC Homicide Hierarchy Intentional murder Extreme indifference
(felony murder is a variation of this) Manslaughter (reckless)
Negligent homicide
Intentional KillingUnintentional Killing
M1Premeditated MurderFelony Murder (Enumerated felonies)
M2UnpremeditatedGross RecklessnessDepraved Heart/Depraved
IndifferenceFelony Murder (Non-enumerated felonies)
ManAdequate Provocation + Heat of Passion Cooling TimeGross
Negligencerecklessness (negligence standard used only in Welansky,
night club owner)
Defenses
2 Definitions: 1) [loose] any argument that could lead to an
acquittal. 2) [narrow/ affirmative defense] set of facts that will
result in acquittal even if prima facie case is made. Partial
defense: results in a less serious crime Complete defense: no crime
results Sources: statutes [crimes will always be in statute], and
common law
Types of defenses:1. Failure of proof: an element of a crime was
not proven. a. Mistake of fact: a defense if it negates the mental
state of the crimeb. Many mistakes of law arguments also concern
negation of the mental state.c. Alibi [presumption]: negates all
elements of a crime.2. Justification: offense was justified to
prevent a greater harm. Society praises these things as right thing
to do. [situation based]a. self-defense, self-defense of others,
necessity3. Excuse: special conditions reduce or eliminate the
actor's culpability- forgiveness. Concession of human frailty that
leads to sympathy or forgiveness [individual based]a. Insanity,
duress, provocation/ EED (partial defense to murder)4. Othera.
Statutes of limitation, immunities, constitutional
Justification v. excuse Expressive difference: praise v.
forgiveness Right thing to do v. frailty of human nature Practical
difference: justification applies to the action of the crime, but
excuse applies to the defendant (not necessarily co-defendants)
Burden of proof (factors to consider) Access to information,
allocation of risk (type I v. type II error), social interest v.
individual interest Affirmative defenses: state does not need to
disprove all affirmative defenses to satisfy Winship rule!!
[Patterson] Most states require D's to prove defenses by POE
(manslaughter is the exception- must be proved BARD by prosecution)
Production: amount of evidence necessary for a jury instruction,
and who needs to bring it up. Persuasion: ultimate burden of proof
once the issue is raised.
Cases Patterson v. New York [burden of persuasion]: This case
involves the allocation of the burden of persuasion between
Plaintiff [prima facie case] and Defendant [affirmative defense].
Is manslaughter a reduction of murder or a separate crime? Separate
crime. The state can't require a defendant to prove his innocence
but if the state is not required to provide a manslaughter crime,
they are not required to either make the reduction either an
affirmative defense or a separate crime. Large deference to the
legislature when determine if crime shall include: not x is an
element, or x is an affirmative defense.
Self- Defense/Defense of Others [justification]
Non-deadly common law test1. D must honestly and reasonably
[objective] believe the threat is immediate, unlawful2. and that
the response is necessary [more than words required, except
threat], proportional, and 3. D can't have been the aggressor.
[Clean hands rule: if D started fight, can't ever claim
self-defense]4. Defense of Others: If A has the right to use
self-defense, B may use same force to defend A. B substitutes in
place of A.Deadly force common law1. D must honestly and reasonably
[objective] believe the threat is deadly, immediate, unlawful
[sleeping is never immediate-- Norman] 2. and that the response is
necessary, and [CL imposes no duty to retreat before using deadly
force]3. D can't have been the aggressor. [escalation: D is
aggressor if he is the first to use deadly force][Clean hands rule:
if D started fight, can't ever claim self-defense]4. Defense of
Others: If A has the right to use self-defense, B may use same
force to defend A. B substitutes in place of A.Who is the
reasonable person discussion?: What can be considered?: The
circumstances facing the defendant or his situation. Physical
movements of the potential assailant, relevant knowledge that the
defendant had about that person or persons, the physical attributes
of all people involved, including the defendant, any prior
experiences he had which could provide a reasonable basis for a
belief that another persons intentions were to injure him or use
deadly force.What CANNOT be considered: Prejudices of the
defendant, facts not possibly known to defendant, etc.
MPC 3.04 Use of Force in Self-Protection1) Use of force
justifiable for protection of the person. Subject to the provisions
of this section and of section 3.09, the use of force upon or
toward another person is justifiable when the actor believes that
such force is immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other person on
the present occasion. 2) Limitations on justifying necessity for
the use of force. a) [list of limitations omitted] b) the use of
deadly force is not justifiable under this section unless the actor
believes that such force is necessary to protect himself against
death, serious bodily harm, kidnapping or sexual intercourse
compelled by force or threat; nor is it justifiable if:i) [the
actor provoked the use of force], ii) the actor knows that he can
avoid the necessity of using such force with complete safety by
retreating or by surrendering possession of a thing to a person
asserting a claim of right thereto or by complying with a demand
that he abstain from any action that he has not duty to take except
that: [no duty to retreat from dwelling or place of work, or if
actor is a public official justified in using force].c) Except as
required by paragraphs a and b of this subsection, a person
employing protective force may estimate the necessity thereof under
the circumstances as he believes them to be when the force is sued,
without retreating, surrendering possession, doing any other act
which he has no legal duty to do or abstain from any lawful
action.-Others: allows for innocent mistakes when defending others.
Otherwise same as number 4 of common law test.
MPC v. Common law MPC: immediately necessary to act, CL: threat
is immediate. MPC: subjective, CL: objective MPC: deadly force can
be used to respond to non-deadly but serious threats, CL: deadly
force can only be used on deadly threats. MPC: (14 states) duty to
retreat. (16 states) no duty to retreat, CL: no duty to retreat.
Mistake of fact: CL (no defense), modern majority (ok if
reasonable), MPC (ok, reasonable from subjective point of
view)Retreat requirement, deadly force (in 14/30 states that
adopted MPC, CL: no duty to retreat)1. Are you in a jurisdiction
that requires a duty to retreat before using deadly force? You have
duty to retreat if:a. D reasonably believes he can retreat to
complete safetyb. D is not in his own home or workplace2. There is
a high threshold here: P must prove knowledge of complete safety.3.
Stand your ground: no duty to retreat anywhere, against unarmed
home or car intruders, and to prevent serious bodily harm or
forcible felonies.
Battered Woman Syndrome in Self Defense: Even where the science
and psychology of BWS is not admissible as a defense, repeated
beatings and a history of abuse alone is relevant, since it lends
evidence to the defendants belief of the threat of imminent harmshe
would know. Similar application in Goetz as previous muggingsit
helps explain why he perhaps recognized something as a mugging
where a reasonable person wouldnt realize it was.BWS is also
important to the jury, when allowed, to explain why defendant never
left her partner, so they assume she is lying about the abuse
because otherwise she would have left had it been bad. Jury might
assume she is lying about this, so is lying about everything she
says.BWS is sometimes argued on a more controversial groundthat
there is a mental deficit caused in defendants by BWS that should
change the standard of reasonableness to include the mental
deficiency caused by BWS: a reasonable battered woman standard.
Cases: State v. Norman (immediate, CL): abused spouse syndrome
does not constitute an immediate necessity to justify deadly force.
Killing someone while sleeping is never self-defense.
Duress and NecessityDuress v. Necessity Duress is an excuse and
necessity is a justification Duress usually results from force of
man and reflects human frailty, and necessity results from force of
nature and promotes the general welfare Duress has no mental state
so it is hard to deter. Necessity has mental state but society is
encouraging the action Duress does not have a lesser evil
requirement Duress usually requires human coercion via threats of
serious violence, but necessity is generally brought about by acts
of nature.Necessity (MPC 3.02 Justification generally): 1) Conduct
that the actor believes to be necessary to avoid a harm or evil to
himself or to another is justifiable, provided that: a) the harm or
evil sought to be avoided by such conduct is greater than that
sought to be prevented by the law defining the offense charged; and
b) neither the Code nor other law defining the offense provides
exceptions or defenses dealing with the specific situation
involved; and c) a legislative purpose to exclude the justification
claimed does not otherwise plainly appear. 2) When the actor was
reckless or negligent in bringing about the situation... necessity
is unavailable for any reckless or negligent mental state
crime.
Necessity Common Law Test (Objective, evaluate using info
available at the time) 1. Immediate and dire evil2. No adequate
alternative3. Proportional response4. Necessity not D's fault5. Not
an intentional homicide6. Mistake of fact: D must honestly and
reasonably believe the facts establishing the defense.Differences
between MPC and CL MPC assesses from D's perspective instead of
objectively. No imminence requirement in MPC. MPC doesn't bar
defense for fault (except when mental state of crime is reckless or
negligent crimes that create necessity) MPC allows a complete
defense for intentional homicides. [R] Unrealistic to expect
someone to take their own life.
Duress (MPC 2.09 Duress): 1) It is an affirmative defense that
the actor engaged in the conduct... because he was coerced to do so
by the use of, or threat to use, unlawful force against his person
or the person of another, and a person of reasonable firmness would
be unable to resist. 2) Defense is unavailable if actor recklessly
placed themselves in the position, or negligently placed themselves
in the position if negligence establishes culpability for crime
charged. 3) No presumption that woman acting in presence of her
husband is coercion. 4)Duress Common Law Test (Objective, evaluate
using info available at the time)1. Another person threatens
imminent death/ serious bodily injury2. Well-grounded fear (both
subjective and objective) (such that a man of ordinary fortitude
would yield to the fear)3. No reasonable escape4. Situation is not
D's fault (judged on information available to D at the time)5. Not
an intentional homicideDifferences between MPC and CL MPC is
complete defense for intentional homicides, not in common law. [R]
Unrealistic to expect someone to take their own life. Instead of
escape and fear, uses reasonable firmness standard No imminent
requirement in MPC, and threat just needs to be unlawful
force.Cases: US v. Contento- Padron (Duress): The threat to his
family was deemed credible and immediate because the drug lord knew
personal information about D. The police were corrupt and fleeing
the country with a family was not an option. He should have been
permitted a duress defense. Dudley and Steven (necessity, CL):
Threat of starvation while on a boat. Still no justification for
homicide, you are expected to take your own life first.
Incapacity defenses [excuse]
1. Infancy (complete defense for all crimes) /= 14:
responsible
2. Diminished Capacity: 4 Approaches. Failure of proof defense,
govt cant prove mens rea. Examples of DC: retardation, mental
illness, etc. that dont rise to insanity.1. Brawner (MPC):
Admissible whenever it is logically relevant and tends to defeat a
mental element of the crime2. Arizona: Clark: Expert testimony on
mental capacity due to disease/defect is never allowed to rebut
mens rea, even if logically relevant. Can use observational
testimony from those around D, including from an expert
interviewing him, but must be based on state of mind, acts, and
observations, not professional opinion.3. McCarthy (Federal
Approach): Only admissible to defeat specific intent crimes, and
ONLY if there is a lesser included offense that can be charged
instead.4. Wetmore: Allows mental health evidence to defeat
specific intent, even if there is no lesser included offense.
3. Voluntary Intoxication (Veach) 4 approaches to allowing
evidence of intoxication as defense: 1) Available, but only for
specific intent crimes; legislature limited this to mens rea
requirement, not malice (Hood case) 2) Rejects evidence on the
issue of mens rea altogether; defendant cant rebut prosecutions
mental state proof with evidence of intoxication even when it is
relevant (Montana and a dozen states). Intoxication is only allowed
for premeditated murder to rebut premeditation, also allowed for
permanent mental impairment caused by alcohol damaging brain.
Otherwise, not admissible. Public safety demands that there
shouldnt be a defense since drunken conduct too harmful to society.
Perhaps allowed at sentencing (New Jersey: Stasis) 3) MPC 2.08
Intoxication: is a complete defense if it negates an element of a
crime. No distinction between general and specific intent crimes.
If you would have been aware of the risk had you been sober, then
you are regarded as being reckless. Redefines recklessness. 4)
German Approach: Create a separate crime out of committing a
wrongful act after recklessly or negligently getting drunk.
Majority: no intoxication defense.3. Involuntary Intoxication:
Almost all jurisdictions recognize inv. Intox defense, but it is
rarely successful. Affirmative defense typically. 4 scenarios.1.
Forced to knowingly ingest an intoxicant, or being drugged by
another individual2. Pathological intoxicationgrossly excessive
intoxication considering the amount of the intoxicant, defendant
had no way to know of his extreme susceptibility.3. Intoxication by
mistake4. Unknowingly intoxicated by a prescription drug What
effect must the intoxicant have? D has to establish that the effect
of the intoxicant rose to the level of temporary insanityhe lacked
the substantial capacity to appreciate the criminality of his
action or absence of the capacity to conform to the law. Even if D
claims he wouldnt have performed an act while sober, so long as he
has the required mens rea (so long as his intoxication didnt negate
the required MR) there is no defense.
5. Insanity (affirmative defense in most states): Policy: Very
unlikely to convict anyways, and it is easier for a D to be
committed. [R] no moral culpability, [U] can't deter, too many
resources needed to lock up How do you draw line between control
and no control? What is substantial capacity? Categories of
impairment: Cognitive (M'Naghten): nature, wrongfulness,
criminality Volitional: impulse control M'Naghten Test (majority) D
was laboring under a defect of reason, from a disease of the mind,
such that:1. D did not know the nature and quality of the act that
he was doing, or;2. If D did know what he was doing, he did not
have the capacity to know what he was doing was wrong. Problems:
All or nothing, too unrealistic. Requires no knowledge of the
wrongfulness of conduct, which is different than the MPC approach
that recognizes that an individual can have the ability to
distinguish between what society tells him is right and wrong
without being able to internalize that to understanding
Irresistible Impulse Test D is irresistibly [totally unable to
resist] driven by an insane impulse [sudden]. Problems: only works
for sudden explosions, can't build over time. MPC 4.01 (14 states)
As a result of mental disease or defect, D lacked the substantial
capacity to:1. Appreciate the criminality [wrongfulness] of his
conduct, or;2. Conform his conduct to the requirements of the law
Thoughts: covers volitional conduct more than M'Naghten test.
Substantial capacity is vague, discussed below. 3 views on what it
means to appreciate [wrongfulness], it has a moral element 1.
Conduct is not wrong (personal standard), easiest standard for D2.
Society approves the conduct, hardest standard for D3. If society
had facts that D has, society would approve conduct (adopted in
State v. Wilson), also good for D4. 1 and 3 difference: no dispute
on the facts, delusional view of society. Deific command covered
under wrongfulness
Cases U.S. v. Veach (intoxication, specific intent): The
individual had intent to threaten but did not have the intent to
threaten for the specific purpose of intimidation. Intoxication
here served as a defense against specific intent. Egelhoff
(intoxication, evidence): it is constitutional for states to pass
laws restricting the use of intoxication evidence at trial
[plurality opinion]. State v. Wilson (defines wrongfulness): D may
appreciate criminality, but truly believes that society would agree
with him if it has his facts. Deity option.
Attempt [inchoate crime]
Inchoate crime definition: these are crimes before the intended
object is achieved. Causation is not necessary to prove.Attempt:
try and fail to commit a crime, but if you are successful, the
inchoate crime merges with the final crime. In majority of jx, the
punishment is less than the completed crime. Policy: punish less
because a person is less morally culpable, and it is worse for
society for them to follow through with the attempt.a. Why punish
attempt crimes if they dont cause the same social harm? Its not
really about deterrence, but more giving the law enforcement a
basis to intervene before the crime is completed. Some say
punishing in absence of social harm is unjustifiable. i.
Retributive: Still an immoral decision being made, and person has a
culpable mental state.ii. Deterrence: Conviction for attempting a
crime might deter people from even trying or moving towards
commission of a crime. Makes someone think twice; about weighing of
risk of getting caught and risk of getting away with it against
risk of being successful and risk of being unsuccessful. If you
punish people who get caught but arent successful, it tips the
scale to the negative. The only time you wont have any negative
weight is if you dont attempt at all. iii. Incapacitation: Dont
want someone with a criminal mind on the loose in society. iv.
Expressive: Might want to condemn them, and make a statement that
attempting to do something bad is still bad in and of itself. Mens
Rea of act: MPC: knowledge (complete), purpose (incomplete); Common
Law: intent (usually purpose). Complete attempt: the intended act
was completed but the result element was not achieved. (fired gun
but missed) Incomplete attempt: intended act, but have not
completed it yet (stopped by police). Mere preparation is not a
crime because it is hard to infer intent, and people still have
time to make the right choice. Mens Rea of Result: Same mens rea as
the underlying crime. Mens Rea of attendant circumstance: keep the
mens rea of attendant circumstances for original act. MPC declines
to address this.
Attempt Test 1) Did D have the requisite mental states? Did D
meet act requirement? Was the act preparation or an attempt? ...see
below tests.2) Unequivocal act test (Miller): the act itself has to
be enough to clearly infer intent, and act cannot be deterred
without outside influence. 3) Sliding scale (luna, stokes):
evidence of intent reduces the need for the act to be equivocal.4)
Dangerous proximity (Rizzo): need to have evidence of intent and D
has to be close enough to make society nervous.5) Substantial step
(Reeves, similar to MPC): if we have evidence of intent, did the
actor take a substantial act toward doing the crime?6) MPC 5.01:
Criminal Attempt (substantial step, allows police to apprehend
early)a. Purposefully engages in conduct that would constitute the
crime if the attendant circumstances were as he believed them to
be, ORb. When causing a particular result is an element of the
crime, he does or omits to do anything with the purpose of causing
or with the belief that it will cause such result, ORc.
Purposefully does or omits to do anything which, under the
circumstances as he believes them to be, is an act or omission
constituting a substantial step in a course of conduct planned to
culminate in the offense. [substantial includes: lying in wait,
enticing, reconnoitering the place of contemplated act, unlawful
entry, possession of materials that are specifically for an
unlawful use, soliciting an innocent agent, possessing unlawful
materials near place]7) Was there a double failure in the attempt
(no bullet and stopped by police before pulling trigger?)- still an
attempt.
Cases People v. Gentry (attempted murder, purpose): The mens rea
for attempted murder is purpose (intent). No other mental states
are valid. You can't attempt reckless murder and risky behavior
does not constitute attempted murder. Poured gasoline on the body
of wife, and it ignited later... he did not intend to kill her.
Miller (unequivocal act): Act itself has to be enough to clearly
infer intent. Walking in field with loaded gun is not enough, needs
to raise it. Stokes (sliding scale): Act in furtherance of intent,
intent can be established outside of the act. Luna (sliding scale):
an act done toward commission of a crime may be sufficient for an
offense, even if act is not equivocal. Rizzo (dangerous proximity):
Driving around town looking for a particular victim to rob. Were
not close enough to be within dangerous proximity. Reeves
(substantial step): The students putting their poison next to the
purse was enough evidence of a substantial act toward the intent.
Williamson (preparation): A murky twilight zone exists between acts
of preparation and perpetration.
Impossibility and Abandonment [Defenses for attempt]
CL Factual Impossibility (not a defense): would be illegal if
facts were as D perceived them. Pick pocketing an empty pocket,
shooting an unloaded gun. [R] morally culpable mental state. [U]
can try to deter/ reform people from thinking they are committing
crimeCL Legal Impossibility (a defense): You think something is
illegal when it isn't. You can't be held to an imaginary legal
standard. Sleeps with a 17 year old thinking AOC is 18, but in fact
it is 16. [R] no moral culpability of specific crime. [u] not an
effective use of resources to deter, but maybe need to deter people
from placing personal views over society views.CL Hybrid Legal
Impossibility (Not recognized in most jx): includes both a mistake
of fact and law. (actually factual uncertainty trying to pose as
legal) pick pocketing a statue. Shooting a dead person thinking
they are alive.
Impossibility Test 1) Common Law: see above tests. Mistake about
what the law is, or about a fact of the situation?2) MPC 5.01(a)
Criminal Attempt: purposely engages in conduct that would
constitute the crime if the attendant circumstances were as he
believes them to be.a. Factual impossibility is not a defense.
Abandonment (jx divided if this is a defense, if not then jx
draws weird lines btwn preparation/ act): What constitutes
abandonment differs. Policy: [U] want to maximize deterrent effect.
Not worth it for society to prosecute until act is almost complete.
[R] not culpable until act almost attempted. Common Law (some):
appears to be able to abandon an incomplete attempt before you are
caught. Uses preparation/ act to decide when you can abandon.
(McCloskey) MPC 5.01(4): abandonment is an affirmative defense if
abandonment is 1) complete and 2) voluntary. Complete: does not
include postponing until later. Voluntary: change in circumstances
that makes it harder to be successful, or easier to get caught, is
not voluntary.
Conspiracy v. Attempt1) Conspiracy, allows you to stop it at the
very early stages (no overt act requirement)2) No merger rule with
conspiracy Conspiracy is more likely to succeed, less abandonment
due to peer pressure, crimes can be more complex, and the crimes
tend to escalate. Doesn't address the fact that it is more likely
for someone to expose the plan.3) [R] drawing more people into a
crime makes you more morally culpable4) [U] dealer is more
dangerous to society, want to deter conspiracy more, prevent risk
spreading (moral hazard)
Cases People v. Thousand (factual impossibility): Police posing
as a 14 year old girl lures a creeper into a McDonalds, and charges
him with attempted distribution of obscene materials to a minor.
Factual impossibility is a not a defense, so the creeper can be
charged. Commonwealth v. McCloskey (abandonment, CL): Guy tries to
escape from prison, but stops before he finishes cutting wire.
Majority says he was still preparing so could abandon before the
act was complete. Dissent wanted this to be an affirmative defense.
Problem with using act element, is drawing a line sets
precendent.
Conspiracy [Inchoate and completed crime] and Withdrawal
Dual functions of conspiracy Inchoate crime: agreement itself is
a crime. Causation is not necessary to prove. Mode of liability:
all members liable for finished crime. Can't be charged with
inchoate and mode of liability for the same crime.
Two types of conspiracies Wheel: knowledge of existence of other
spokes is sufficient, but more than a suspicion is required. [U]:
don't want to over deter. [R] Not culpable if you don't know it is
going on. Chain: Agreement may be implicit, but supplier must share
in the purpose [acquire a stake in venture, no lawful use of
service, charge higher rates] (Lauria) Can infer agreement from
stake in venture, or knowledge of serious crime. [prostitution
isn't serious, don't want to hold Taco Bell liable for 4th
meal]
Common law conspiracy test 1) Inchoate: Agreement to criminal
objective:a. Intent [purpose or knowledge] to combine with another
person [Wharton Rule: crime can't be defined as requiring multiple
people, prostitution]b. Intent [purpose or knowledge] to complete
objective of conspiracy [Maj: no overt act, Min: act requirement is
not demanding] 2) Mode of liability (majority/ Pinkerton): elements
of inchoate conspiracy proved (above test) plus-a. Co-conspirator
commits crime in furtherance of conspiracy b. Crime is a
foreseeable consequence [objective from D's perspective]3)
Withdrawa. Inchoate: can't withdrawb. [R/U] still want to punish
conspiracy for reasons listed above. [U] risk over deterring. [U]
still provides an incentive to stop before crime occursc. Mode of
liability: can withdraw before crime is completed, but this only
limits liability for crime itself.i. Affirmative and bona fide
repudiation communicated to co-conspirators [doesn't need to be
verbal, skipping town can count]
MPC 5.03 conspiracy test1) Inchoate: Enters conspiracy with
purpose of promoting or facilitating crime if:a. Agreement that
someone will commit or attempt crime; and [Wharton Rule: crime
can't be defined as requiring multiple people, prostitution]b.
Agreement to aid in planning or commission of crime. (overt act
required for all crimes other than most serious)c. [merges if crime
is completed]2) Withdrawa. Both types (affirmative defense): D must
manifest a complete and voluntary renunciation of criminal purpose,
and thwart the success of the conspiracy.b. [U] better for society
to have crime stopped. If you withdrawal, co-conspirators still on
the hook for conspiracy.
Cases Pinkerton v. US (Mode of liability, CL): Two brothers
conspire to commit tax fraud regarding their business. One brother
goes to jail but is still held liable for the tax fraud because
conspiracy is continuous, and an affirmative action is needed to
withdraw. Lauria (supplier, conspiracy): Owns a phone message
service that is used by prostitutes. He is not held liable because
he neither shares in the purpose, and because prostitution is not a
serious crime. People v. Sconce (withdraw, CL): Sconce pays for a
murder but calls it off before murder is committed. Murder is
committed by hit man anyways. Sconce cannot withdraw from the
inchoate crime (after over act, aka paying hit man) under the
common law, but he has withdrawn from the murder itself.
Accomplice liability [mode of liability]
Accomplice (aiding and abetting): the punishment is generally
the same as for the underlying crime. This is a mode of liability,
not an inchoate crime. [R] morally culpable mental state. [U] can
try to deter/ reform people from thinking they are committing crime
Higher mens rea policy: [U] don't want to cast net too wide and
chill commerce. [R] risk of convicting non-culpable people
Common Law Accomplice Test [crime must be complete, all elements
proven with respect to principle!!]CL: D must render aid in fact,
failed attempts to aid and abet are not sufficient for liability
since no aiding or abetting actually occurred. Under MPC,
attempting to is enough! Crime must also occurotherwise aiding and
abetting a legal act, which is perfectly acceptable as no crime has
occurred.1) Act: Purpose of aiding the principal AND purpose of
facilitating the success of the crimea. [crime must be complete,
all elements proven in respect to the principle before aider is
considered]2) Mens Rea for result: same as required for principle
(majority), purpose (minority) 3) Natural and probably consequence
(NPC) doctrine: intent may be found if:a. D intended to assist with
another crimeb. The charged crime was foreseeable (natural and
probable) result.4) Causation: majority does not require because
contribution is sufficient if it makes the crime easier.a. Useless
acts don't satisfy causation element, because they don't make the
crime easier.
NPC v. Pinkerton conspiracy 1) NPC doesn't require an agreement,
but2) Conspiracies can be broader (and include an inchoate crime)3)
NPC requires concrete aid toward the crime, conspiracy just
requires an agreement.4) NPC act is directly assisting in the
crime, but in conspiracy the act is the agreement to commit the
crime.
MPC 2.06: Accomplice liability provisions1) Purpose in
facilitating criminal act2) Mental state for result, tracks
requirement for the principle. 3) Causation: attempt to aid crime
is an inchoate crime.4) Withdrawal: no responsibility if: 1)
terminate complicity before the crime, and wholly deprive prior
complicity of effectiveness. [not stop crime, just withdraw your
help]5) Attempt to aid: separate inchoate crime
Cases Hoselton (intent of principle): kid is present when his
friends break into a boat storage container, and he leaves to go
back to the car. Since he did not have the same intent as the
principle, he cannot be convicted as an accomplice. State v.
Linscott (natural and probable): breaks into a house and his friend
has a sawed off shotgun. The plan was just to break into the house
but his friend ends up shooting the owner of the house. Since the
shooting was foreseeable, Linscott is charged as an accomplice to
murder. State v. VT (presence is not an act): Presence is not
enough to be considered "purpose for facilitating the success of
the crime." Wilcox v. Jefferson (England, presence): England court
held that journalist presence at an illegal concert was
encouragement with purpose of facilitating success. People v. Genoa
(crime did not occur): can aid and abet a crime that never occurred
although the MPC (minority) allows accomplice liability to be
inchoate.