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Meltzer – Criminal Law Outline (Fall 2011)WHAT IS PUNISHMENT?Hart (“Aims of Criminal Law”)Penal codes should reflect several social purposes (e.g., preventing crimes but also avoiding conviction of innocents and enhancing sense of security).Aims:Deterrence of offensesRehabilitation of offendersDisablement of offendersSharpening of community’s sense of right and wrongSatisfaction of community’s sense of just retributionSocialized vengeance (as alternative to mob violence)Should not focus on one end to exclusion of others; e.g. deterrence still has to be counterbalanced w/rehabilitation, just retribution, disablement of offenders, etc.Criminal Law operates as a series of commands telling people what they must or must not do.Mostly “must-not” commands, e.g. “do not murder, rape, or rob.”But also some “musts” or affirmative requirements, e.g. “file your income tax return.”Commands speak to members of community on community’s behalf. Commands are subject to sanctions for disobedience which community is prepared to enforce.Key: What distinguishes criminal from civil sanctions (and the only thing) is the judgment of community condemnation which accompanies and justifies its imposition. A crime, then, is not simply anything which legislature chooses to call a crime. It is conduct which, if shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.Punishment = community condemnation + added consequences (e.g. imprisonment).PhilosophiesUtilitarianism: punishment is an evil b/c it inflicts harm (decreases utility); we should punish criminals if some “good” (e.g. primary reduction of future crimes) will result from punishmentSpecific deterrence: particular D will not commit future crimes.General deterrence: other persons, contemplating committing crimes and learning of the threatened punishment, will decide not to commit crimes.For both kinds of deterrence, pain threatened must be greater than the pleasure that D thinks he will attain by committing the crime. (Bentham)But no evidence that criminals actually engage in this kind of “felicific calculus” (Bentham quote), however.Many crimes may not be crimes of calculation. (Though white-collar crimes more likely to be b/c long periods of planning and long periods of implementation.)Certainty of capture likely deters more than severity of punishment.Incapacitation: offenders must be prevented from reoffending (also utilitarian).Counter: impossible to accurately predict recidivists. Ignores replacement phenomenon in crime.Rehabilitation (utilitarian): dominant between 1800 and 1975. Idea is that offenders can be changed into nonoffenders by proper treatment. Required indeterminate sentence for each criminal b/c “symptoms” and fault would vary w/each. Presentence reports used by judges to inform them of social background, etc. of D. Was adopted in virtually every state.Counter: no evidence that “treatment” during punishment worked.Retribution (Kant, etc.): persons who choose to do wrong acts deserve punishment and it should be imposed on them even if it serves no utilitarian purpose. Punishment must be imposed b/c offender deserves to be treated as moral agent who earned punishment by his crime. Retrospective as opposed to utilitarianism.Counter: often explained by referring to need to reaffirm society’s mores, which smacks of utilitarianism. Also difficult to explain how punishing criminal “makes up” for injury D inflicted on society; e.g. “unfair advantage” argument.Proportionality also has weaknesses: e.g., what is “proportionate” for rape or torture? What is proportionate imprisonment for e.g. assault?Significant b/c S.Ct. has stated Eight Am. includes proportionality requirement (see Ewing v. California, 2003).THE ELEMENTS OF JUST PUNISHMENTThe Act RequirementModel Penal CodeMPC 1.13(2): “act” or “action” means a bodily movement whether voluntary or involuntary.MPC 1.13(5): “conduct” = action or omission and its accompanying state of mind, or, where relevant, a series of acts or omissions.MPC 2.01(1): person is not guilty of offense unless his liability is based on conduct which includes a voluntary act / omission to perform an act of which he is physically capable.Not all conduct must be voluntary: just needs to include single voluntary act.MPC 2.01(2): following are not voluntary acts:(a) reflex or convulsion;(b) bodily movement during unconsciousness or sleep;(c) conduct during hypnosis of resulting from hypnotic suggestion;(d) bodily movement that is otherwise not a product of the effort or determination of the actor, either conscious or habitual.GeneralWhen analyzing statute, break it down in elements of the crime and determine the culpability requirements for each element.Require an act b/c (1) evidentiary issue (otherwise just one person’s word against another’s); (2) allow person to change mind before following through; (3) making words criminal would open “web of criminality.”Requires act to be voluntary b/c unfair to attach criminal stigma otherwise; goals of criminal punishment do not result from convicting for involuntary actions.VoluntarinessVoluntary appearance in public cannot be established when D involuntarily and forcibly carried to that place by arresting officer; statute presupposes voluntary appearance. Martin v. State, p. 182.Different result under MPC 2.01(1), since conduct included voluntary acts (drinking and loud / profane language)?Distinguish conduct from status: see Jones v. City of LA (9th Cir. overturned city ordinance making it illegal for persons to sit, sleep, etc. on city street b/c “state may not criminalize ‘being’; that is, the state may not punish a person for who he is, independent of anything he has done.”Unconscious actionsSee People v. Newton (CA App. 1970, p. 184) (reversing criminal homicide conviction b/c of failure to instruct jury that involuntary unconsciousness is a complete defense to criminal homicide).But consider People v. Decina (p. 189) (epileptic driver who lost consciousness and killed pedestrian was culpably negligent under statute b/c knew he was subject to epileptic attacks but still drove the car). Culpable negligence: Awareness of a condition which he knows may produce such consequences, as here, and his disregard of the consequences renders him liable for culpable negligence.Suggests that prosecution can defeat voluntary act requirement by expanding time frame. But how far back can we go? (E.g., Newton voluntarily got in his car and drove on the day when he later shot officer.) Michael Moore: no time-framing issues if court can find (1) voluntary act by D, (2) accompanied at that time by whatever culpable mens rea is required, (3) which act in fact and proximately causes some legally prohibited state of affairs. Were earlier acts by Martin (e.g. voluntary drinking) the proximate cause of his being drunk in public or was police offers’ placing him in public place an intervening cause?The Requirement of CulpabilityMental StatesModel Penal CodeTo determine the mens rea required for conviction, (1) determine the material elements of an offense (see 1.13(9) and 1.13(10)), then determine which type of means rea (2.02) is required w/respect to each material element.MPC 2.02(1): except as provided in 2.05, person is not guilty of offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, w/respect to each material element of the offense.MPC 2.02(4): “Material elements of offenses are those characteristics of the actor’s behavior that, when combined with the appropriate level of culpability, will constitute the offense.”MPC 1.13(10): Material Elements do NOT relate exclusively to: SOL...jurisdiction...venue...or to any other matter unconnected with: Harm or evil, incident to conduct, sought to be prevented by law defining the offense, or Existence of justification or excuse for such conduct.MPC 2.02(5): when recklessness suffices, element also established if person acts purposely or knowingly.MPC 2.02(3): when level of culpability is not prescribed by law, it is established by acting purposely, knowingly, or recklessly w/respect thereto.Default culpability standard: Recklessness, unless the statute specifies otherwise!Commentary on MPC §2.02Purpose: conscious objective to perform an action of that nature or to cause such a result; actor would be disappointed if result or circumstances did not come about.Knowledge: practically certain that conduct will cause such a result or that such external circumstances exist; different from purpose because actor would not be disappointed if result or circumstances did not come about (rarely need to differentiate).Recklessness: consciously disregards a substantial and unjustifiable risk that material element exists or will result from conduct (subjective standard) – default culpability level.Negligence: inadvertent creation of a substantial and unjustifiable risk that person should have been aware of (objective standard) – liable if failure to perceive it is a gross deviation from care that would be exercised by a reasonable person in situationRequired culpability level must be proved with respect to each “material element” of offense. Provides legislature with a vocabulary to specific culpability required for given offense.Mens reaBroadly, mens rea refers to blameworthiness entailed in choosing to commit a criminal wrong.Defenses: involuntary act, duress, legal insanity, accident, mistake, etc.Formal mens rea = the kind of awareness or intention that must accompany the prohibited act under the terms of the statute defining the offense.See Regina v. Cunningham (UK 1957, p. 214) (gas meter case; overturning conviction b/c judge instructed jury that acting maliciously [req by statute] = acting “wickedly”; maliciously means “intending injury or acting while foreseeing that injury might result”; to convict, prosecution will have to ask jury to make inference that given situation, D was actually aware of risk).Lesser Crime Theory: imputes intent to commit the greater offense on the basis of intent to commit the lesser offense (impute culpability from the lesser crime to the more serious crime). If defendant makes a showing that he mistakenly believed facts that would have made his crime a lesser crime, the MPC says that the grade and offense of the crime shall be reduced to those of the crime which the defendant would have committed if the facts been as he supposed.See Regina v. Faulkner (UK 1877) (overturning and remanding conviction of sailor who went in ship’s hold to steal rum, lit a match, and ship caught on fire b/c he did not “maliciously” set fire to the ship: jury needs to find that act is intentional and willful, or that he knew this would be likely and acted anyway).See U.S. v. Jewell (9th Cir. 1976, p. 229) (affirming conviction for knowingly transporting marijuana where D deliberately avoided positive knowledge to avoid responsibility; “knowingly” can be awareness of high probability of existence of fact in question).See also MPC 2.0.2(7): “when knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.”IntentGeneral intent: intent in the normal sense; i.e. D knew the nature of the acts performed w/out proof that he desired any particular further consequence.Specific intent: crimes defined in terms of doing an act with some further intention (e.g., burglary, assault w/intent to kill) or crimes that require D’s actual knowledge of particular fact or circumstance (e.g. bigamy). Strict LiabilityA strict liability crime is one which does not require culpability for each individual material element of the offense (e.g., not even negligence). In many cases, commission of the act is proof of culpability.Model Penal CodeMPC 2.02(1): at least negligence should be required for every material element of the offense. MPC 2.05(1): unless (1) legislature specifically articulates it or such purpose “plainly appears,” or (2) violation carries only civil fines. Under MPC, strict liability offense must constitute a “violation” (§2.05(1)) and result in no sentence other than a fine, or a fine and forfeiture or other authorized civil penalty (§1.04(5))Interpreting when a statute is silentIntent is required: traditional and favored interpretation, particularly applying to offenses regarded as common law crimes (like theft or murder). Mens rea was such an inherent part of the definition of crime itself that we will not lightly assume that Congress meant to dispense with it.For retributive reasons, we only want to punish bad acts and wrongful choices, and if there was no intent, this purpose is not served.For utilitarian reasons:We want to incapacitate only dangerous people, and the unintentional criminal probably isn’t dangerous in that sense.We want to deter certain conduct, and you can’t deter people from doing things they never intended to do.There’s a calculating reason behind this, which is the idea that people who are actually thinking about stealing a car will choose not to because of the risk.There’s a normative reason also, which is the idea that by stigmatizing bad conduct, we embed the idea that certain conduct is wrong in people over time.We want to rehabilitate offenders, and the unintentional criminal doesn’t need to be rehabilitated.If the statute has a harsh penalty, we usually don’t want to subject people to it if they acted unintentionally.Intent is Not RequiredThe legislature passes certain pieces of regulatory legislation with the intent of benefiting the social welfare at large (“public welfare offenses”), and therefore wants to make prosecution of such offenses easier.Such offenses generally carry less of a stigma and have smaller penalties, like fines, which we don’t feel bad about imposing on unintentional conduct.These kinds of crimes often involve the creation of risks that haven’t yet materialized into harm to particular individual (such as in Balint, where a man was convicted of selling opium without knowing what it was that he was selling).Potential backfire effect – if we impose strict liability in an effort to encourage better precautionary measures, we might prevent people from going into certain businesses altogether.See Morissette v. U.S. (S.Ct. 1952, p. 250) (Jackson majority; reversing strict liability conviction for “knowingly converting” U.S. govt property [D thought shell casings were abandoned]; in absence of express Congressional directive, strict liability should not extend to common law crimes [here larceny] because larceny requires intent).Compare with U.S. v. Dotterweich (S.Ct. 1943, p. 249) (affirming strict liability conviction after corporation mislabeled drugs b/c legislation seeks to protect health of people who are beyond self-protection and puts burden of acting on person standing in “responsible relation to a public danger”).If D knows that he is dealing with a dangerous device of a character that places him “in responsible relation to a public danger,” (Dotterweisch) then D has burden to “ascertain at his peril whether [his conduct] comes within the inhibition of the statute” (Balint).See Staples v. U.S. (S.Ct. 1994, p. 254) (Thomas majority; reversing strict liability conviction of gun owner who thought he owned semi-automatic gun but gun had unknowingly been modified to an automatic; culpability must be determined for each element unless specific Congressional intent to apply strict liability; nothing about firearm in this case that should have alerted D; not a regulatory offense; tradition of gun ownership in U.S.; high penalty [10-year imprisonment] makes strict liability inappropriate).Compare with U.S. v. Freed (S.Ct. 1971) (strict liability conviction of D who knew he possessed grenades upheld w/out requiring proof that he knew grenades were unregistered; difference is that grenades were particularly dangerous type of weapon.”PolicyFactors for SLPublic vs. private harm – activities that introduce products or goods into public sphere justify regulation that imposes strict liability on people in responsible position. Public has no way of protecting self from the danger otherwise.Nature of activity alerting defendant to regulation.Legislation towards promoting social good not deterring/punishing specific crime.Light punishment w/ relatively little social condemnation.“New” vs. “Old” Harm – traditional crimes codification occur against backdrop of common law and culpability requirements are assumed to be implicit in them. New types of harms stemming from mass distribution of good j/ new types of plex threats – distribution of these goods also makes the harm and the chain of causation uniquely complex j/ different law enforcement approach.Pro SLProvides incentive for affirmative actions by people in responsible positions to ensure no danger.Public can’t defend itself – only hope is the drug manufacturers/labelers will ensure quality product.Essential to providing additional teeth to regulatory schemes.Con SLCan’t provide incentive if don’t know there’s a violation.Punishment w/o culpability undermines legitimacy of the law – short circuiting effectiveness of specific law.Mistake of FactMistake of Fact/Legal Circumstance is an excuse because the mistake to the fact or circumstance eliminates the culpability.E.g., bigamy: man marries woman believing her husband to be dead (mistake of fact – no culpability); man marries woman believing her to be divorced from her husband (mistake of legal circumstance – no culpability).Compare with mistake of law: man marries woman knowing he is already married but not believing bigamy is illegal (mistake of law, no defense). Basically, ask “are you surprised that x is illegal?”MPC 2.04(1): ignorance or mistake as to a matter of fact or law is a defense if (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense; or (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.See People v. Olsen (CA 1984, p. 239) (affirming conviction of D who had sex w/underage girl, though claimed that he thought she was 17; though there was precedent for holding reasonable belief was defense, Court held that b/c of strong public policy to protect children and b/c legislative intent to eliminate good faith mistake of fact defense can be inferred, defense is not permitted). Lesser Wrong Theory: the defendant acting without mens rea nonetheless deserves punishment for having committed a lesser wrong, namely fornication.People v. Hernandez: MINORITY view. Conviction for statutory rape reversed on the basis of mistake regarding victim’s age. The court found that the accused’s “good faith, reasonable belief” that the victim was 18 yrs or more of age was a defense to charge of statutory rape. This is a minority view. Most courts would agree with reasoning in Lopez and OlsonBasically, strict liability for certain moral offenses. See also Garnett v. State (1993, p. 245) (sustaining conviction of retarded man who had sex w/13-year old and thought she was 16; fact that he was barred from introducing that as defense immaterial b/c statutory rape is SL offense).Note, though, that traditional rule on SL for mistakes about age is eroding. About 20 states now permit defense of mistake at least under some circumstances (e.g. when relevant age of consent is greater than 14 or when parties are close in age).MPC generally allows defense for honest mistake (whether reasonable or not), but provides for SL when child is under 10; if child is over 10, MPC treats mistake as affirmative defense on which D must carry burden of proof that mistake was reasonable.Mistake of LawMistake of law defenses (e.g., “I didn’t know this was illegal!” are not valid defenses.)MPC 2.02(9): Awareness of the illegality of an offense or conduct or the existence of law is not a requisite element of an offense and, therefore, is not a defenseIgnorantia legis doctrine: ignorance of the law is not an excuse.See State v. Fox (Idaho 1993, p. AM-31) (affirming conviction of D for possession of ephedrine though he argued he did not know such possession was illegal b/c text of statute did not set forth any mental state as an element of the offense – knowledge required only as to possession, not illegality).Note the interplay of specific / general intent and mistake of law / fact: if there was specific intent requiring culpability to possessing illegal substance, mistake would then negative that element, making it a defense.See Regina v. Smith (1974, p. 273) (mistake of legal circumstance which cancels the required culpability is a defense; conviction of D who damaged rented apartment but thought he only damaged his own property reversed b/c statute language talks about property “belonging to another”).Mistake of Law: Reliance on Official AdviceWhen the mistake of governing law is made because of reliance on information coming from official statement/ruling/order, it is an excuse.MPC 2.04(3): mistake of legality of action is a defense when actor acts in reasonable reliance on an official statement of the law contained in (1) a statute or other enactment that has not been published or otherwise reasonably made available prior to the conduct alleged; (2) a judicial decision, opinion, judgment; (3) an administrative order or grant of permission; or (4) official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.D has burden of proof by preponderance of evidence. MPC 2.04(4).Departure from traditional majority rule, but now more widely accepted than old rule.D cannot rely on previous court decision an appeal is still pending as an assurance that the conduct that had been prosecuted was lawful. U.S. v. Rodgers. 9th Cir. took opposite view in Albertini, but then reversed it in Qualls.D cannot rely on advice from non-authoritative official. See Hopkins v. State (State Attorney’s advice erroneous, but no defense). (This is traditional rule; probably different under MPC.)CA tried but failed to pass statute allowing mistake of law if D diligently tried to ascertain the law (similar to statute NJ has, and this is approach taken by Delaware Supreme Court).Legislative Definition of Crime: Legality Basic DoctrinePunishment must be based on legally valid law: defined by legislature, prescribed ahead of time, and specific about criminal conduct.Most states have abolished the doctrine that courts can create new common law crimes, although the Supreme Court has ruled the practice constitutional under some circumstances (but says at federal level, crime creation is legislative job.In general, the doctrine of legality requires for prosecution of a crime: Advance specification that the conduct was criminal, By the legislature, In a sufficiently specific manner.ElementsAdvance Warning – ex post facto laws unconstitutional – criminal conduct must be defined prior to the action being punished. Legislative Control – SOP demands courts interpret laws, so legislature should make them – otherwise too much power ceded to one branchSpecificity – laws are void for vagueness when there is no clear distinction between what is legal and illegal.Arbitrary EnforcementNo notice/fair warning for citizensCasesKeeler v. Superior Court (CA 1970, p. 146) (Ex-husband kicks pregnant former wife in the stomach, causing the fetus to be stillborn; court holds that fetuses were not originally considered human beings under the statutory definition of murder, so the defendant cannot be charged for this crime; “judicial enlargement” of law violates ex post facto clause and infringes on legislature’s exclusive power to define crimes and fix penalties).Bouie v. City of Columbia (S.Ct. 1964) (judicial interpretation of law to broaden its application violates due process by failing to provide notice; no notice prohibited blacks from sitting at a lunch counter, so Court says they cannot be prosecuted for trespass after they were first allowed in and then asked to leave).Rogers v. Tennessee (S.Ct. 2001) (suggests Tennessee court could change the standard requiring a death to follow within a year and a half from the act to qualify as murder [departure from year and a day rule], as long as the redefinition was not unexpected or indefensible, without violating the Due Process clause that had in Bouie been interpreted to include some form of the ex post facto prohibition applied to legislatures; also says ex post facto clause does not apply to courts).See Scalia dissent: argues Bouie “fair warning” referred not to that law might be changed, but rather fair warning of “what constituted the crime at the time of the offense.”Wisconsin likewise abolished year-and-a-day rule, but held that change could not apply retroactively (retroactive change “undermines stability in the law and tarnishes the image of justice,” State v. Picotte).City of Chicago v. Morales (S.Ct. 1999, p. 154) (Chicago anti-loitering law is void for vagueness on its face [not just as applied, i.e. w/in context of specific case] in violation of due process clause; loitering alone is legal activity and could infringe on freedom of movement through dispersal orders; criminalizing otherwise legal behavior opens door to arbitrary enforcement and allows discrimination; no proxy in law for criminal behavior)Thomas disagrees, says dispersal order perfectly clear and police officers should have discretion; O’Connor / Breyer want some sort of standards given to police officers.Other statutes have been upheld where target is gang loitering but focuses on criminal intent or confines loitering to specific situations.Papachristou v. City of Jacksonville (S.Ct. 1972) (traditional example of vagrancy statute ruled unconstitutional b/c too vague: criminalized “nightwalking,” etc., and gave police too much discretion).Nash v. U.S. (S.Ct. 1912) (sustained conviction though statute was somewhat vague w/respect to degree).U.S. v. Ragen (S.Ct. 1941) (sustained conviction of D for willfully taking deduction of unreasonable allowance on income tax returns; mere fact that penal statute requires jury to determine reasonableness does not make it too vague).State v. Stanko (Montana 1998) (statute w/out specific speed limit but making illegal driving at speed greater than is “reasonable and proper” struck down as unconstitutionally vague on its face).McBoyle v. U.S. (S.Ct. 1931) (reversing conviction under Motor Vehicle Theft Act of D who transported stolen plane b/c legislature clearly did not have an airplane in mind when drafting the definition “any other self-propelled vehicle not designed for running on rails” [vehicle “calls up the picture of a thing moving on land”]; fair warning should be given in language that the “common world” will understand).Rule of lenityLenity: ambiguity in criminal statute is resolved in D’s favor. Two operations: (1) blocks judicial speculation and requires courts to adopt narrowest plausible interpretation of criminal statute; (2) comes into play as “last resort” when all other tools of interpretation fail to clarify meaning.MPC, along with many states, rejects the lenity doctrine. MPC 1.02(3).HOMICIDE: GRADING AND CULPABILITYIntroductionTheory of GradingMPC 1.02 – includes among its purposes aim to “differentiate on reasonable grounds between serious and minor offenses.”Bentham – value of punishment must not be less than what is sufficient to outweigh the profit of the offense; when two offenses come in competition, the punishment for greater offense must be sufficient to induce the man to prefer the less; the punishment should be adjusted so that for every part of the crime there may be a motive to restrain offender from doing it.Ewing – punishment must not exceed the crime – primary object is to lead both the offender and others to realize the badness of the act punished, but if it is punished too severely, they are much more likely to realize instead the cruelty of the punishment.Stephen – if vengeance affects the amount of punishment, every aggravating / extenuating circumstance will operate in aggravation / diminution of punishment. If, however, object of legal punishment is the prevention of specific acts, this will not be the case. Both objects must be kept in view, and such circumstances will operate in different ways according to the nature of the case.Hart – principles of fairness require morally distinguishable offences to be treated differently and morally similar offenses to be treated alike.Alschuler – in homicide particularly, scholars have advanced psychological, moral, and jurisprudential justifications for distinctions in the criminal code. However, these distinctions sometime prove too fine for workable, everyday application. In practice, the attention of prosecutors, defense attorneys, and trial judges turn to other basic questions – did defendant injure personal / property interests? Was crime motivated by gain? Did defendant use a gun? etc. All other issues tend to be viewed as superstructure.Basic approachesGrading turns on proportionality (punishing for actions / culpability actor is responsible for).Beyond proportionality, can justify as Moral force of the law: punishing in response to a bad act is moral engine of criminal law.UtilitarianLegitimizes law: aligning punishment with what is deserved maintains popular legitimacy.Deters criminal actors: the Bentham argument of making the cost of punishment outweigh the benefits of committing the crimeIncapacitation: graver crimes indicate a willingness to revisit those crimes in the future – so proportional punishment invests prison resources to best preserve future public safetyPatterns of Grading in HomicideGrading in homicide originally began as way to limit use of death penalty; now central distinction turns on murder vs. manslaughter.CL standard is “malice aforethought,” originally a specific concept dating to Henry VII and applied to premeditation, positing that plotting homicide in cold blood was more morally blameworthy.Malice aforethought has become highly technical term of art for different types of predicates that can separate manslaughter from murder, including (1) premeditation, (2) in the course of a felony, (3) reckless indifference to human life (“depraved heart murder”), (4) mitigating factors such as self-defense or provocation, (5) intent to cause serious bodily injury (typically murder 2, but some states and MPC abolish).Both intentional and unintentional homicide can be murder.Plays significant role in providing bargaining chip for prosecutors to induce plea bargains or confessions.Intentional HomicideMurder vs. Voluntary ManslaughterMPC 210.2(1) provides that criminal homicide 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 mon law standard: provocationTraditional divider between murder and voluntary manslaughter was informed by heat metaphors: acting in hot blood partially excuses the action. The test focused on what were legally cognizable “provocations” that would cause the “blood to boil.”Four-part test: (1) There must have been provocation of the kind that would cause a reasonable person to lose control; (2) D must have in fact been provoked, and the provocation must have caused D to kill victim; (3) A reasonable person would not have cooled off in the interval between provocation and the crime; and (4) D must not have actually cooled mon law is an objective test that measures the reasonableness of provocation.Typically limited to battery (must be violent and painful blow); mutual combat (usually okay); serious assault against actor (courts split; only in extreme cases); false arrest, abuse or injury of close relative, and adultery (but see Maher for limitations).Some courts have allowed Ds to raise provocation defense in recent cases where men killed in response to unwelcome though nonviolent homosexual advance. (But several appellate courts have ruled provocation claims of this sort insufficient as a matter of law.)Further limited by other circumstances: “cooling off” period (see State v. Gounagias; upholding conviction of D who had been sodomized by victim two weeks earlier, rejecting “rekindling” due to taunts argument);But see Maher v. People (Mich. 1862, p. 392) (overruling conviction and remanding for jury whether one hour was sufficient cooling time where D offered evidence to show adulterous intercourse between his wife and Hunt; suggests that seeing wife and Hunt go into woods together and being told that wife was cheating may be sufficient provocation).Victim must be the provoker;D did not provoke the provoker;Standard is not individualized (must be calculated to “inflame the passion of a reasonable man”, Girouard);Words alone are not provocation (see Girouard v. State, p. 390; no provocation where D psychologically provoked by deceased wife)But many states take a softer position and may allow provocation where words disclose provocative happenings like taunts in Girouard.Under common law and majority rule (and Girouard), the judge determines provocation as a matter of law; if finds it exists, instructs jury to consider it in determination of conviction.Modern approach (England, Maher, maybe MPC?) is case by case provocation determination; allows question of sufficiency of provocation to go to jury rather than using categories; but jury determination still likely based on intuition that underlies common law.Note that provocation only serves as a partial excuse to homicide; e.g., if husband finds out wife is cheating and burns down house, provocation is not a defense to arson.MPC standard: extreme emotional distressMPC 210.2(1)(a): [except as provided in 210.3(1)(b), criminal homicide is murder when] it is committed purposely or knowingly.MPC 210.3(1)(b): [criminal homicide constitutes manslaughter when] a homicide which would otherwise be murder is committed under the influence of extreme 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 to be.Of two-thirds of states that have adopted MPC, not as many have adopted this provision. Unpopular b/c considered too expansive.Five states (AZ, AK, CT, KT, NY) adopted almost entirely.About 12 other states adopted, sort of: usually retained EED formulation, but required provocative act and rejected “actor’s situation” standard in favor of reasonable person mon law and MPC distinguished:CL approach focuses on the act of the provoker while MPC focuses more on the subjective culpability of the killer, though it still retains objective reasonableness requirement.MPC formulation is broader than provocation b/c it does not require a provoking or triggering event and allows for circumstances e.g. brooding (which would be barred under common law rule by cooling time requirements).B/c EED formula is broader, more cases will get to the jury than under CL formula; but where there is adequate provocation, mitigation is not necessarily more likely to ensue from jury under EED formula than under the provocation formula.Carves out provoking / triggering act requirement (see State v. Elliot, D feared brother for years and killed him one day w/out any precipitating provocation; CT court reversed murder and held instructions on EED required).Discards “words alone” exemption (see Walker; drug dealer gets in verbal fight w/supplier and kills him; refusal to give EED instructions upheld but dissenting judge emphasizes MPC approach should allow it to go to jury).Two components of EED:(1) Actual – extreme emotional disturbance (subjective);(2) Normative / evaluative – reasonable explanation / excuse (objective).The ultimate test is objective.People v. Casassa (NY App. 1980) (D killed victim after she rejected his romantic advances; appellate court affirmed trial court decision that though there was emotional disturbance, test is not to be applied solely from viewpoint of D; ultimate test is two-step: (1) view subjective, internal situation in which D found himself and external circumstances as he perceived them at the time, then (2) assess whether explanation for his ED was reasonable so as to entitle him to a reduction); here, D killed while under EED but explanation unreasonable).Subjective, objective, individualized standardsDebate on whether reasonableness standard for provocation should account for factors such as age, mental capacity, cultural background, being a battered woman, emotional depression, etc. Govt. wants objective standards w/abstract idea of reasonableness is applied; Ds want wholly individualized interpretations.Three PossibilitiesNo individualization – pure reasonable person standardIndividualization based on gravity of provocation only Individualization more generally based on situation/circumstancesGenerally, under common law, more allowance is made for physical characteristics and less for personality and mental defects.Characteristics such as age (unique physical characteristics of the accused) may be taken into consideration by the jury in determining the reasonableness of the provocation.English model (see Camplin; provocation of 15-year boy who killed older man in response to sexual abuse should be resolved by reference not to reasonable man, but to reasonable person having power of self-control to be expected of ordinary person of age and sex of the accused).The MPC retains objective test, but specifies that reasonableness is to be assessed from viewpoint of person in actor’s situation (idiosyncratic moral values are not considered part of actor’s situation.)MPC §210.3(1)(b) – Reasonableness of [EED] shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.This leaves it to the jury to determine what to take into account. “In the end, the question is whether the actor’s loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen.” Comment to 210.3.Provocation and Objectives of Criminal Law: grading for provocation doesn’t really serve a deterrence function, b/c if provoked, then you do not consider law before acting. Culpability, proportionality are a stronger justification.Arguments for individualization: calibrate punishment to culpability of specific defendant by testing actions against a reasonable person with the relevant characteristics/traits – instead of a mythical/abstract “reasonable man” Arguments against individualization: different applications of the law to different people (Holmes traditional view that efficiency/predictability of universal rule of law o/w the over/under inclusiveness of such rules); Subjective especially for rubber stamping of emotion duress claims (i.e. Casassa says he acted reasonably for him, Mr. Casassa...or, should a court be compelled to apply the “reasonable alcoholic with anger management issues” test?)First vs. Second Degree Murder; Premeditation FormulaPremeditation at Common LawPennsylvania Law of 1794 sought to confine capital punishment to especially heinous murders. First major limitation on capital punishment in U.S.First-degree = poison, lying in wait, or any kind of willful, deliberate, and premeditated killing, or that committed in perpetration of attempt to perpetrate arson, rape, robbery, or burglary.Second-degree = all other murders.Extremely influential. By the time MPC is drafted, close variations adopted in 34 states.However, did not achieve rational limitation of capital punishment.Confusion over whether murder committed by specific means also had to be willful, deliberate, premeditated.More pervasively, undermined b/c courts could not settle on what “deliberate and premeditated” meant.Cardozo: we are basically trying to get juries to decide between capital and non-capital murders using proxies. Let’s just tell them this directly and “not in a mystifying cloud of words.”Proxies may not be reliable or valid.Premeditation may cut both ways, e.g. (1) depraved person methodically planning murder, or (2) indicates misgivings about killing.Spur of the moment killing goes either way: (1) person willing to kill at the drop of a hat may be morally incurable, not valuing human life, or (2) flew off handle momentarily losing self control and tragically killing someone.Some preplanned murders (suicide pacts, mercy killings, etc.) are intuitively less morally reprehensible than some non-planned murders (killing someone in response to e.g. insult).Problems of evidence.Deliberation requirementTraditional separation between first- and second-degree murder rests on premeditation and deliberation.Premeditation only: some jurisdictions require some period of reflection for premeditation, but also hold that “no time is too short” for necessary premeditation to occur. (See, e.g., Young v. State, Alabama 1982: “premeditation and deliberation may be formed while the killer is ‘pulling the trigger that fired the fatal shot.’”See also PA decisions: “requirement of premeditation and deliberation is met whenever there is a conscious purpose to bring about death.” Commonwealth v. O’Searo.See AZ statute defining premeditation: “proof of actual reflection is not required, but an act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.”Premeditation + deliberation: see, e.g. People v. Anderson (CA 1968) (grisly murder of 10-year old; evidence insufficient to support first-degree murder conviction on premeditation / deliberation b/c does not fall into three identified categories of evidence: (1) planning activity, (2) facts about D’s prior relationship / behavior w/victim which might indicate a motive to kill, or (3) evidence re: nature / manner of killing which indicate deliberate intention to kill according to preconceived design).See also Cal. Pen. Code Sec. 189 (p. 375): murder is first degree when done by destructive device, explosive, any kind of willful, deliberate, and premeditated killing, or that which is committed in perpetration of (most violent felonies). To prove the killing was deliberate and premeditated, it is not necessary to prove that D “maturely and meaningfully” reflected upon the gravity of his act.MPC on premeditationMPC replaces common law doctrine w/ murder/manslaughter distinction. Mitigation cannot turn on deliberation v. impulse. There is no first- / second-degree murder under MPC.See MPC 210.3(1): (a) criminal homicide is manslaughter when committed recklessly; or (b) under EED.Unintentional HomicideGeneral DoctrineUnintentional homicide is any act resulting in death where actor was either reckless or negligent to the result (death).Unintentional homicides can be murders or involuntary manslaughter.Involuntary Manslaughter, mon law involuntary manslaughterConsciousness of riskSome states require some consciousness of risk for involuntary manslaughter.Some do not clearly distinguish between conscious and unconscious risk-taking (“wanton, willful, and reckless).See Commonwealth v. Welansky (Mass. 1944), p. 411 (Coconut Grove Fire)Affirmed involuntary manslaughter of D whose failure to ensure proper fire precautions caused fire and death of club patrons, and where such failure amounted to wanton or reckless conduct i.e. intentional failure to take such care in disregard of the probable harmful consequences.“To constitute wanton or reckless conduct, as distinguished from mere negligence, grave danger to others must have been apparent and D must have chosen to run the risk rather than alter his conduct so as to avoid the act or omission which caused the harm.”“If the grave danger was in fact realized by the D, his subsequent voluntary act or omission which caused the harm amounts to wanton or reckless conduct, no matter whether the ordinary man would have realized the gravity of the danger.”Basically a “reasonable man” gravity of danger standard where conduct involves a high degree of likelihood that substantial harm will result to another.KEY DIFFERENCE between common law / MPC approach illustrated here is that applying MPC, the court would have had to show that he was actually aware of the risk of fire / death and chose to disregard it; here, however, enough that danger should have been apparent to mon law involuntary manslaughter (negligence)Negligent homicide is conflated with manslaughter in most common law jurisdictions, though a higher standard of negligence (usually gross) is required in almost every state.The negligence here is about the risk of death – you didn’t realize there was a risk of death.Contributory negligence may have an effect on issues of proximate cause but is not itself a defense to homicide.Misdemeanor-manslaughter is a lesser version of the felony murder rule; very rare.See State v. Williams (Wash. App. 1971, p. 418) (upheld manslaughter conviction on basis of statutory simple negligence of husband and wife who failed to supply infant child w/medical attention, as result of which child died).Note that most jurisdictions today (including Washington) do not impose manslaughter liability in cases involving ordinary negligence.Case highlights problem with invariant standard of care requirements (poorly-educated Native American parents fearful of state taking away child, etc.).MPC involuntary manslaughterMPC 210.3: manslaughter if criminal homicide committed (a) recklessly, or (b) under EED.Manslaughter = felony of second degree. 210.3(2)Recall MPC 2.02(2)(c): reckless = conscious disregard of substantial and unjustifiable risk that material element exists or will result from his conduct; risk must be of such nature / degree that, considering nature / purpose of actor’s conduct and circumstances known to him, its disregard involves a gross deviation from standard of conduct that a law-abiding person would observe in the actor’s situation.MPC 210.4: criminal homicide = negligent homicide when committed negligently.Negligent homicide = felony of third degree. 210.4(2)Recall MPC 2.02(2)(d): negligent = when actor should be aware of substantial and unjustifiable risk that material element exists or will result from his conduct; risk must be of such nature / degree that, considering nature / purpose of actor’s conduct and circumstances known to him, its disregard involves a gross deviation from standard of conduct that a law-abiding person would observe in the actor’s situation. (No need for actual awareness / disregard.)More than ordinary tort negligence – approaching mens rea w/out requiring actual knowledge of risk.In states not requiring consciousness of risk, negligent homicide = involuntary manslaughter.Recall also that unless otherwise provided in statute, negligence alon0065 is insufficient to establish culpability as to material element. MPC 2.02(3).See People v. Hall (Colo. 2000), p. 415Following MPC statutes as to manslaughter and negligent homicide; court overturned dismissal of felony manslaughter charges against D skier who was skiing too fast and collided w/victim who died as result.“Substantial” does not require “more likely than not” that death will occur.Prosecution presented enough evidence for reasonable person to conclude that (1) D’s conduct created a substantial (traveling too fast for conditions, increasing likelihood of collision) and unjustifiable (skiing does not justify unsafe skiing) risk of death.Prosecution presented enough evidence for reasonable person to conclude that D’s conduct constituted a gross deviation from reasonable care of standard (b/c he was experienced skier, also not a momentary lapse – skiing at high speed for a long time).Prosecution presented enough for reasonable person to conclude that D consciously disregarded risk (b/c he was experienced skier).Objective v. subjective standardInvariant standard: determining liability on basis of general norms of proper and reasonable behavior. See State v. Williams, supra.Punishes ignorance, but also acknowledges minimum standards of proper / reasonable behavior.See Holmes’ argument (p. 422): if objective standard is appropriate in civil cases, it is at least as appropriate in criminal cases b/c interest of establishing general standard or at least general negative limits of conduct for community in the interest of everyone’s safety.MPC defends retaining negligence as basis of criminal liability b/c when people know that punishment may result from conduct that inadvertently creates improper risk, they are motivated to take due care before acting; motive may promote awareness and be effective as measure of control.Criticism of objective standardProfessor Williams (p. 423): some people are born clumsy, etc; with the best will in the world, all of us sometimes make mistakes. Unjust to punish such mistakes. Criticism on deterrent grounds: you cannot deter against these kinds of mistakes.Hart: standard is problematic not b/c it is objective but because it is applied w/out regard of whether D is capable of complying with it.Present German law adopts approach that Hart suggests. Negligence for criminal law is when D “disregarded the care which they were obliged to exercise and of which they were capable under the circumstances and according to their personal knowledge and abilities.”MPC rejects fully individualized standard (but has some individualization components built in w/reference to care that would be exercised by reasonable person in actor’s situation.See Comment to 2.02: “situation” ambiguous. Factors e.g. blindness, heart attack should be considered; but “heredity, intelligence, or temperament of the actor” should not be b/c otherwise not an objective criterion.Unintentional MurderUnintentional homicides are elevated to murder when the conduct that results in the death exhibits (1) recklessness so gross that it demonstrates a “depraved heart,” (2) intent to cause serious bodily harm, or (3) death is cause in course of another felony.“Depraved Heart Murder”Common law rule that imputes serious moral defect on D b/c their actions show such little regard for human life that they reveal a “depraved heart.” The formulas (and subsequent codifications of them) use similarly colorful language to emphasize the seriousness of the risk ignored by the defendant.MPC treatment: see 210.2(1)(b) [criminal homicide is murder when it is] committed recklessly under circumstances manifesting extreme indifference to the value of human life.Attempts to capture CL standard while adding substance to test, emphasizing that extreme indifference to human life must be same indifference exhibited by someone willing to either knowingly or purposefully kill. (?)Under MPC, unintended killing = murder when committed recklessly as defined in 2.02(2)(c) and under circumstances manifesting extreme disregard (210.2).Cal. Penal Code 187-88, 192.187: murder is unlawful killing of human being or fetus w/malice aforethought.188: such malice may be express or implied. Expressed when manifested deliberation intention to unlawfully take away life. Implied when no considerable provocation appears, or when circumstances attending the killing show an abandoned and malignant heart.192: manslaughter is unlawful killing of human being without malice. (Voluntary, involuntary, or vehicular.)CasesCommonwealth v. Malone (PA 1946, p. 426) no motive necessary (intentionally engaging in conduct that creates a wildly unacceptable risk of death is murder even when D has no motive to kill and is only reckless to result; D was young teenager playing Russian Roulette w/friend knowing there was one bullet in chamber.)Note that under common law, you do not have to necessarily show direct awareness of risk (Malone said he knew which chamber the bullet was in, so risk was minimal), but MPC requires it as element of recklessness – has to be conscious disregard under 2.02.Difficult in ascertaining subjective “awareness” of risk for jury. Difficult in cases with obvious or substantial risks to convince the jurors that D was not aware of risk.U.S. v. Fleming, 4th Cir. 1984, p. 431) drunkenness not excuse to recklessness; liable for murder if actions demonstrate disregard for life of others (affirming second-degree murder conviction of drunk-driver who killed another driver; proof of existence of malice [to establish murder] can be satisfied by govt establishing that D intended to operate his car in manner in which he did w/out regard for life and safety of others).This is generally the common law and statutory rule: courts hold drunk drivers liable for actions even if unaware of consequences (usual theory is that D had actual awareness of great risk of fatal harm).See, e.g., Pears (drunk driver received and ignored several warnings by police and friends that he was too drunk to drive; murder conviction upheld); Watson (actual awareness of danger b/c D drove car to bar and must have known he would have to drive back later).MPC approach is 2.08(2): when recklessness is an element of crime, self-induced intoxication cannot negate the required awareness. The test is that if you would have been aware of risk when sober, then you are treated as if aware when drunk. (Departure from MPC’s effort to calibrate punishment to subjective culpability of individual defendants.) Good example of lesser crime theory.Intent to cause serious bodily harm w/death resultingUnder common law, malice required to establish murder could be established by D’s intent to do great bodily harm to the victim. This is followed in many U.S. jurisdictions.MPC omitted this doctrine b/c recklessness manifesting extreme indifference sufficiently captures all nonintentional homicides that should be elevated to murder. Comment to 210.2.See MPC 210.0(2) for definition of bodily injury and 210.0(3) for definition of serious bodily injury.May also be b/c otherwise, too many convictions for murder w/out proper culpability.Felony-MurderRule and rationaleAn actor committing a felony is strictly liable for murder in any death resulting from the conduct of the felony.Eliminates mens rea requirements (or satisfies them, whatever) as to malice aforethought.Breadth / application of the rule vary between jurisdictions. Reforms and judicial decisions have left different forms of felony-murder rule, including (1) any felony, (2) “inherently dangerous felonies,” (3) death must result “in furtherance” of a felony, (4) merger rule (felony must be independent; cannot use lesser included offense to prove guilt for murder), and (5) grading (felony-murder is not first-degree murder).MPC 210.2(1)(b): [criminal homicide is murder when] “it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is 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.”In a nutshell, mens rea is assumed when someone is committing / accomplice / attempting to robbery / rape / arson / kidnapping.In other words, MPC says these felonies serious enough to demonstrate same culpability that is required to punish any murderer: indifference to human life.England abolished all versions of felony-murder rule by statute in 1957. U.S. academics / judiciary almost universally oppose it, but many legislatures still retain it. MPC, though successful generally, only had small success here even w/modest proposal to replace felony-murder rule w/rebuttable presumption.Note that where first-/second-degree murder distinction persists, killing in course of non-designated felony (i.e., not rape / arson / robbery, etc.) still triggers felony-murder rule, but offense becomes murder in the second degree.See p. 445 for various statutory formulations, modifications, and requirements.CasesPeople v. Stamp (Cal. App. 1969, p. 438) if felony is proximate cause of death, actor is liable for felony-murder regardless of foreseeability of death (upholding first-degree murder conviction b/c shop owner died of heart attack after D robbed him; felon takes the victim as he finds him).King v. Commonwealth (Va. App. 1988, p. 439) no liability for murder when felony not proximate cause of death (two persons transporting marijuana in plane that crashed; copilot did not survive crash; but-for requirement met but crash not foreseeable result of felony b/c not made more likely by the fact that cargo was contraband).“Inherently dangerous felony” requirementScope of felony murder rule may be limited just to felonies from which culpability for a resulting death might logically follow. Two variations on inherently dangerous rule:(1) felony in the abstract: look at elements detached from circumstance and determine if inherent risk to life in order to impute culpability.(2) felony in practice: look at crime as actually committed and determine if dangerous enough to impute culpability.Felony in the abstract casesPeople v. Phillips (CA 1966, p. 447) court must consider nature of felony in abstract to determine if inherently dangerous (overturning felony murder conviction of chiropractor who promised that he could cure child’s eye cancer w/out surgery and was convicted on grand theft; held: grand theft not inherently dangerous to life).Note that on remand, D was still convicted of second-degree murder on theory that malice was established by D’s conscious disregard of the risk to child’s life.People v. Henderson (CA 1977) court must look at statute as whole and every element must be inherently dangerous to be felony murder predicate (false imprisonment was not a sufficient predicate to convict D of felony murder resulting from death of innocent bystander [hostage ducked, attempted to deflect gun, gun went off] b/c conduct defined in statute – violence, menace, fraud, or deceit – did not all involve life-endangering conduct, and therefore offense as a whole was not inherently dangerous to human life).Felony in practice cases (“inherently dangerous as committed”)People v. Stewart (Rhode Island 1995, p. 448) to determine if felony is inherently dangerous and can be predicate to felony murder, court must consider nature of crime as committed (upholding second-degree f-m conviction of crack addict mother of infant who did not feed / care for infant for several days; although making a child a habitual sufferer is not inherently dangerous in the abstract, but was in this case).This is probably the majority rule. See p. 450, n.1. California approach has found very little favor in other jurisdictions.Hines v. State (Georgia 2003, p. 450) to determine if felony is inherently dangerous and can be predicate to f-m, court should ask whether felony was committed in a way that created “foreseeable” risk of death (affirming f-m conviction based on underlying crime of possession of firearm by convicted felon after mistakenly shot friend while hunting; foreseeable risk of death b/c D had been drinking, knew there were other hunters in the area, and took an unsafe shot at dusk through heavy foliage at target he did not conclusively identify; dissent argues that felony should only be considered inherently dangerous per se or as committed if it carries “a high probability” that a person would be killed).Merger rule: felony must be “independent”Traditional rule is that some felonies are part and parcel w/homicide and are not proper predicates for felony murder. So, e.g., voluntary homicide or assault w/deadly weapon cannot be predicate, but burglary can. People v. Burton (CA 1971, p. 452) (affirming first-degree f-m conviction for killing in the course of armed robbery; rejected argument based on Ireland and Wilson that armed robbery was included (“merged”) in the offense of murder).Ireland: defense rested on contention that D’s mental state when he shot his wife was insufficient for murder; an instruction for second-degree f-m under assault w/deadly weapon would eviscerate defense of diminished capacity to negative malice), effectively holding that all intentional killings w/weapons were murder regardless of circumstances.Wilson: underlying felony was burglary (entry coupled w/intent to commit assault); found that burglary was incidental to intent to commit assault w/deadly weapon and was not predicate to f-m.Majority rule is that felonious assault may not serve as a predicate felony that automatically makes any resulting death a murder; however, no uniform theory as to other crimes.(1) Test whether felony is “included in fact”:(2) Test whether felony is “independent” of homicide: see, e.g., People v. Mattison (affirming second-degree f-m where prisoner D supplied alcohol to another prisoner, who died from ingesting it; D’s act had purpose independent of any intent to kill and f-m rule would be deterrent).But see People v. Hansen (CA 1995) (rejecting independent-purpose test as fundamentally misguided b/c “felon who acts w/purpose other than specifically to inflict injury upon someone . . . is subject to greater criminal liability for an act resulting in death than a person who actually intends to injure the person of the victim”).Re-adopted in People v. Robertson (CA 2004) (upholding second-degree f-m on basis of felony of discharging firearm in grossly negligent manner).“In furtherance of the felony” ruleFor F-M, death must result from some act of felon in furtherance of the felonious purpose.Difficulties when:(1) lethal act occurs after felony terminated and therefore cannot further it (though escape still counts);(2) co-felon causes death by act unconnected to felony and not in service of it (e.g., when co-felon goes off on “a frolic of his own”);(3) act immediately responsible for causing death is committed by person opposing the felony (e.g., police officer resisting robbery firing shot that kills innocent bystander).Two major pressure points were (1) importing tort proximate cause theory as the only required connection between felony and decedent, and (2) lethal actions by someone other than felon which occurred during felony (e.g., (i) innocent bystander killed by non-felon, or (ii) co-felon killed by non-felon).Intersects with accomplice liability, see infra. Broadly: one person is liable for crime of another where he intentionally encourages the other person to commit the crime or aides the other person in committing it. Law views each participant as agent of the other when their actions further the common objective.F-M dispenses with mens rea but not actus rea of murder; standard principles of aiding / abetting determine responsibility for acts of co-felons. So, e.g., if four agents off on burglary and one of them wanders off and rapes / kills woman, other felons normally would not share his guilt of rape and felony murder.State v. Canola (N.J. 1977, p. 460) for felony murder to attach, death must have occurred in furtherance of felony as a result of acts by felon or his co-felons (co-felons could not be liable on f-m where victim of an armed robbery shot and killed one of the co-felons; court chooses “agency theory” over proximate cause theory: felons not liable for deaths resulting from lethal acts by third party, except when those deaths are caused by a direct act i.e. “shield” cases; criminal culpability should relate to actor’s culpability).Although agency theory was favored for some time, more recently, an increasing number of states have adopted the proximate cause theory.The “end point” is usually broadly interpreted.See People v. Gillis (Mich. 2006) (upholding f-m conviction where D was thwarted in burglary attempt, drove away in his car, police tried to pull over ten minutes later, and he collided w/another car and killed two occupants).See State v. Amaro (Fla. 1983) (upholding f-m conviction after arrest where one of D’s co-felons who was still trying to evade arrest shot and killed officer searching the house; court found co-felon’s act was foreseeable and in furtherance of common design).Unanticipated / excessive reactions may sometimes defeat f-m.See U.S. v. Heinlein (D.C. Cir. 1973) (no f-m conviction where three Ds participated in rape, woman slapped one of them, and he stabbed her; court said no f-m b/c murderer’s unanticipated actions not in furtherance of the common plan could not be attributed to co-felons).But see People v. Cabaltero (CA 1939) (gang leader D shot lookout who panicked during robbery; court upheld first-degree f-m convictions on entire group b/c shooting was connected to ongoing felony).Killing by nonfelons (e.g. police officers trying to thwart crime and shooting bystander):MPC suggests felon could be charged with purposeful murder, see Commentary to 2.03.See People v. Gilbert (CA 1966) (reversing f-m where victim of armed robbery killed a co-felon b/c malice aforethought not attributable to robber as the killing is not committed in perpetration of felony).Many statutes and judicial decisions specifically exclude killing of participants in the felony. See, e.g., U.S. v. Tham (11th Cir. 2003). Rationale: justifiable homicide? Protecting the innocent?Misdemeanor-ManslaughterIn many states, misdemeanor resulting in death can provide basis for involuntary manslaughter conviction w/out proof of recklessness or negligence.In states that retain common law formula, prosecution can (1) argue that D’s conduct amounted to criminal negligence under circumstances (e.g., running a red light and killing pedestrian), or (2) only show that D’s unlawful act caused death, and proof of criminal negligence becomes unnecessary (this is only in states that recognize the unlawful-act doctrine).Even states that retain unlawful-act doctrine typically limit it.Proximate cause: requiring proximate cause between misdemeanor and death (e.g., expiration of driving license has no causal connection to accident caused by another driver, Commonwealth v. Williams).Regulatory offense: some courts restrict doctrine to malum in se as opposed to malum prohibitum misdemeanors.Dangerousness: limiting doctrine to misdemeanors that rise to level of criminal negligence, or where misdemeanor was dangerous to human life under circumstances of its commission.Capital MurderRationaleServes policy by deterrence, though empirical analysis is not conclusive as to whether the deterrent effect exists; retribution – moral justification of punishment (e.g., Kant), because only punishment can restore equality among persons, and punishment is necessary to respect the rational human agency of the offender (because he implicitly authorizes that his own wrongdoing be committed on himself when he chooses to commit an offense).Errors – concerns about executing innocent significant, and have led to mass clemencies, reform commissions, etc.Bias – racial bias also problematic; evidence suggests that there may be 1) bias against blacks that may lead prosecutors to favor the death penalty when a murder defendant is black, and 2) bias in favor of whites that might lead prosecutors to favor death sentence when murder victim is white.Constitutional limitations – procedural due process does not require any standards to guide jury to exercise discretion of death penalty. McGautha v. California. But see cruel and unusual punishment – see Furman v. Georgia.Furman v. Georgia (S.Ct. 1972, p. 479) (S.Ct. rejects entirely discretionary sentencing regime then in place under GA statute on Eighth Amendment grounds, stating that it is not consistent enough).35 States responded by passing sentencing statutes, some including mandatory guidelines. The Supreme Court struck down one mandatory law in Woodson v. North Carolina, reasoning that in such a morally serious punishment, you have to always take into account individual circumstances.Yet the Court upheld two mandatory laws others in Gregg v. Georgia (“each distinct system must be examined on an individual basis) and Jurek v. Texas (TX system limiting capital punishment to subset of five categories and required jury to and “yes” to three yes-no questions at sentencing phase).Most post-Furman statutes limit capital prosecutions to intentional murder, though some felony-murder convictions have been upheld.Lockett v. Ohio: State may not limit the range of mitigating factors or the evidence in support of mitigation that ? seeks to adduce.Gregg v. Georgia (S.Ct. 1976, p. 481) (After guilty verdict, penalty hearing was held under guidelines enacted in response to Furman, and jury imposed death sentence. S.Ct.: punishment by death does not invariably violate the cruel and unusual clause. Because Eight Amendment is not static, in assessing a punishment selected by legislature, we presume its validity. Concerns expressed in Furman about arbitrary standards can be addressed by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance (e.g., bifurcated procedure – so that question of sentence is not considered until determination of guilt is made; and jury standard – jury should be given guidance regarding factors about the crime and defendant that the State deems relevant in the sentencing decision.)“Guided discretion” statutes (three schemes upheld in 1976 that neither mandated imposition of capital punishment upon conviction of certain offense nor left decision to standardless discretion of sentencer).Woodson v. North Carolina (S.Ct. 1976) and Roberts v. Louisiana (S.Ct. 1976) – Court struck down statutes that mandated automatic imposition of capital punishment upon conviction of certain categories of murders.Trademarks of Successful Guided Discretion StatutesBifurcated trials allowing for determination of innocence to occur separately from determination of punishment.Consideration of aggravating factors with respect to mitigating evidence presented in second half of trial – this channels the jury’s discretion to ensure that they’ll apply capital punishment only to murders which are most reprehensible.Appellate review exists to ensure consistency and appropriateness of sentence.Jury RoleThings that tend to be factored into determination of whether to apply capital punishment: presence of a prior record, identity of victim (gender/race), possible fault of victim, compelling reason for killing.Mitigating Factors: history of abuse, mental illness/retardation, substance abuse, provocation.ArbitrarinessDefense frequently barred from informing jury that ? will receive life without parole if not sentenced to death – this ban results in higher return of capital punishment.Authorizing statutes are very broad. Prosecutorial discretion largely determines which capital cases are brought, and is not subject to any regulation.The largely poor quality of defense counsel combined with the enormous complexity of capital cases, results in arbitrary ernors can step in and grant pardons, which is nice, but reproduces the problem of arbitrariness.The mitigating and aggravating factor setup is completely arbitrary.Mitigating factors can be absolutely anything.Juries, basically groups of one-time actors, are given no indication of how to weigh these things, which are often apples and oranges.McCleskey v. Kemp (S.Ct. 1987, p. 499)Challenge to conviction of a black man sentenced to death – issue is whether statistical study that indicates a risk that racial considerations enter into capital sentencing determinations proves that capital sentence is unconstitutional. S.Ct. affirmed dismissal. To prevail, defendant must prove that decision-makers in his case acted with discriminatory purpose – study is insufficient to support this inference. Alternatively, defendant must prove that legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect – no evidence of that here. The statistics claim, taken to its logical conclusion, can be extended to cover gender, facial characteristics, etc. – no logical stopping point. Also, the statistics should be presented to legislative bodies rather than courts.Dissent:Brennan – Court has always been concerned with the risk or imposition of arbitrary sentence (see Furman), rather than the proven fact of one, so unfair to demand that he submit proof that his sentence was discriminatory. Statistical evidence enough to show risk that his sentence was influenced by race.Blackmun – once defendant shows prima facie case of purposeful discrimination, as defendant did here, the burden shifts to prosecution to rebut.Stevens – disparity in sentencing is constitutionally intolerable. Baldus study shows that there are categories of crimes for which prosecutors consistently seek and juries consistently impose death penalty regardless of race. If Georgia were to narrow the class of death-eligible defendants to those categories, danger of arbitrary and discriminatory imposition of death penalty would be significantly decreased.Post-McCleskeyKentucky was first and so far only state to allow capital Ds to challenge prosecutions using statistical evidence of racial discrimination. Burden on D to establish by clear and convincing evidence that race was “the basis” of prosecutor’s decision to seek death penalty.JUSTIFICATION AND EXCUSEJustificationDefense of Self and OthersSocial utility and justificationSocial utility serves as a backstop to justification & necessity defenses: (A) when the victim is a threat to the actor utility demands the response be proportional & (B) when the victim poses no threat – straight necessity defense – the defense is unavailable if act caused a net social loss.Traditional self-defenseTraditional elements:Unlawful threatResponse must be objectively & immediately necessary Necessity must be honestResponse must be proportional: deadly force only in response to reasonable belief defender would suffer death or serious bodily harm, or have crime visited on them (varies from jurisdiction, but normally includes at least murder, assault SBI, and rape).MPC: weighs the benefits of acting against harms of not acting (utilitarian). Interesting in that it relaxes the imminent requirements as it allows actor to use self-defense when he reasonably believes that its use is “immediately necessary” (cf. imminent harm).MPC 3.02(1) “Conduct which 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 justifications claimed does not otherwise plainly appear.”MPC 3.02(2): if actor was reckless / negligent in bringing about situation requiring choice of harms or evils, justification afforded by this section is n/a in a prosecution for any offense for which recklessness or negligence suffices to establish culpability.MPC 3.04(2)(b) limits use of deadly force to cases where threatened danger is “death, serious bodily harm, kidnapping, or sexual intercourse compelled by force or threat.”MPC 3.11(2) “deadly force” is force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm.Under 3.11(2), purposely firing firearm at someone / someone’s car automatically counts.Threat to cause death so long as the actor’s purpose is limited to creating an apprehension does not constitute deadly force.MPC 210.0(2) “bodily injury” is physical pain, illness or any impairment of physical condition.MPC 210.0(3) “serious bodily injury” is bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.CasesU.S. v. Peterson (D.C. Cir. 1973, p. 738) (self-defense w/use of deadly force a viable doctrine; however, right of self-defense arises only when necessity begins and ends w/necessity; there must be (a) threat, actual or apparent, of use of deadly force against defender; (b) threat must be unlawful and immediate; (c) defender must have believed he was in imminent peril of death or SBI and that his response was necessary to save himself; and (d) this belief must have been honestly entertained and objectively reasonable in light of circumstances).People v. Goetz (N.Y. App. 1986, p. 739) belief of imminent danger and necessity of action must be objectively reasonable (i.e., not whether D reasonably believes it) (NY subway shooting case; reinstating dismissed charges)Instructive in practical impact of objective / subjective divide. Consider role of jury (acquitted Goetz of murder on retrial). Trier of fact is ultimate determiner of “reasonableness” and that – not jury instructions – is likely pivotal.Argument for objective self-defense standard: universal application of law.Argument for subjective self-defense: don’t want to create situation where choice is (1) not defend yourself, or (2) go to jail for murder. Human physiology disproves objectiveness: people’s bodies / minds react differently to threats. (Restak argument: – people do not act reasonably at such times and we should not hold them to standards they cannot meet.)Holmes: “Detached reflection cannot be demanded in the presence of an uplifted knife.” Brown v. U.S, see p. 748.Mistake and self-defenseTraditional rule: self-defense is all or nothing.“Imperfect” self-defense: mistaken action of s-d is graded less severely, e.g. jury given option of punishing honest self-defense mistake as manslaughter not murder.MPC approach: 3.04(1) says use of force for self-protection justifiable when the actor believes that such force is immediately necessary; then 3.09(2) says when actor believes this but is mistaken, culpability as to that mistake [reckless: aware of substantial risk there is no threat; negligent: should have been aware] is imported as culpability for the homicide – so e.g. reckless mistake of necessity becomes manslaughter, negligence becomes negligent homicide.Justification: no actor faced w/imminent threat can be required to behave reasonably; proportional action equally unreasonable; objective self-defense rule anticipates encounters between two individuals of equal strength.This approach has not been influential in state statutory reform.Note also that 3.04(1) does not require “reasonable” belief by actor (though still requires honest belief, presumably).BystandersSee People v. Adams (Ill. App. 1972) (reversing D’s manslaughter conviction of bystander who died when he, acting in self-defense, shot and killed assailant and bullet passed through his body, striking her).See also Commonwealth v. Fowlin (Pa. 1998) (dismissing aggravated assault and reckless endangerment charges of D who was blinded with pepper spray and shot seven times in direction of attackers while at a club [200 other people present]; if valid self-defense, cannot be deemed reckless).MPC takes different approach: see MPC 3.09(3) – if actor recklessly or negligently injures or creates risk of injury to innocent persons, justification afforded by 3.0.3 or 3.08 is unavailable in prosecution for recklessness or negligence towards innocent persons.Burden of proofMost jurisdictions place burden on prosecution to disprove self-defense beyond reasonable doubt once issue is raised by evidence. But see Ohio (requires D to prove s-d by preponderance); upheld as constitutional in Martin v. Ohio by S.Ct. b/c absence of self-defense not among elements of the crime charged.Necessity / duty to retreatSome states have duty to retreat: D must be presented with no alternative to force.Traditional common law: can only use deadly force in s-d after exhausting every change to flee, when you have your back to the wall. U.S. courts started rejecting this in 19th century as unsuited to American values. See Erwin v. State (Ohio 1876) (“a true man who is without fault is not obliged to fly from an assailant.”No-retreat probably still majority rule, though complicated: in CL decisions, tendency to require retreat in settings outside of home, and courts in 6 other states treat possibility of retreat as factor to be considered in judging necessity.Availability of flight may invoke duty to retreat.State v. Abbott (N.J. 1961, p. 777) (D only has duty to flee if he is certain of being able to avoid attacker’s use of deadly force with complete safety).“Castle exception” excludes home or place of work from the duty to retreat when deadly force is at issue; MPC is in accord w/this, see infra.Most states extend this to homeowner when threatened by guest.Split where one occupant kills co-occupant e.g. spouse / child. Some courts require homeowner to flee if possible; but traditional view and MPC view under 3.04(2)(b)(ii)(1) allow use of deadly force.Since 2005, 15 states have passed “stand your ground” laws that permit actor to meet force with force, including deadly force, even when retreat is possible.MPC requires retreat if “actor knows” he can avoid necessity of using deadly force with “complete safety by retreating or by surrendering possession of a thing . . . or by complying with a demand” (3.04(2)(b)(ii)), except not obliged to retreat from dwelling or place of work unless he was initial aggressor or assailed by known co-worker (3.04(2)(b)(ii)(1)).Self-defense by aggressorIn a few states, the nonlethal aggressor can regain his right to self-defense if he is met by an excessive, life-threatening response, provided that he then exhausts every reasonable means to escape such danger other than the use of deadly force.But most jurisdictions tend to deny the initial aggressor even this limited means of escape. On the ground that self-defense is available only to the person who is “free from fault,” most states hold that the initial aggressor has no self-defense privilege even when his minor provocation is met by a grossly excessive response.See U.S. v. Peterson (D.C. Cir. 1973, p. 781) (sustaining manslaughter conviction where deceased stole D’s wipers and provoked deceased even though he was about to depart the scene, then argument ensued and he shot him; no s-d b/c “self-generated necessity to kill”).MPC departs from common law on this. See 3.04 and p. 785.E.g., A attacks B with fists, B defends and subdues A by pinning him to floor. B then starts to beat A’s head against the floor. A rises, but B still attacks him and now A, fearing he will be killed, uses a knife, seriously wounding B.B is entitled to defend against A, but only to extent of using moderate, nondeadly force (subsection 1). He exceeds boundaries of necessary force under (1) when after reducing A to helplessness, he beats his head against the floor. This excessive force is, in turn, unlawful; so now under (1), A is entitled to defend himself against it, and, if he believes that he is danger of death / SBH w/out opportunity for safe retreat, A is also entitled to use knife in self-protection.Battered woman syndromeSee State v. Kelly (N.J. 1984, p. 750) expert testimony admissible in battered women cases to give juror insight into credibility / reasonableness of D’s testimony (case remanded; conflicting facts as to who instigated fight between wife D / husband, but she stabbed and killed him w/ scissors; periodically beaten by husband previously; testimony should be used to determine whether, under the circumstances, a reasonable person would have believed there was imminent danger to life).This is now nearly universal rule: expert testimony allowed in overwhelming number of courts and even statutorily compelled in some states.But note that though evidence of BWS is relevant to whether D’s response to situation is reasonable, there is no reasonable battered woman standard. See People v. Humphrey (CA 1996): standard is “reasonable person with defendant’s situation and knowledge”.But trend to more subjective standard. See State v. Edwards (Mo. 2001) (jury should weigh evidence in light of how “an otherwise reasonable person who is suffering from battered spouse syndrome would have perceived and reacted in view of the prolonged history of physical abuse”); see also State v. Leidhold (N.D. 1983) (goes even further: jury should “assume the physical and psychological properties peculiar to the accused . . . and then decide whether or not the particular circumstances . . . were sufficient to crate a reasonable belief.”Battered women and imminent dangerMost self-defense statutes require that danger must be imminent (Peterson) or that resistance w/force is immediately necessary (MPC). Battered women that kill while husbands asleep present unique problems, esp. when they know they cannot retreat w/complete safety.State v. Norman (NC 1989, p. 763) battered women evidence and self-defense n/a when killing took place while abuser was asleep (this states general rule; courts reluctant to admit evidence of BWS or allow s-d claim when there is patently no imminence or immediacy to threat / necessity of violence).Imperfect self-defense likely not applicable either b/c that is appropriate when jury concludes D truly believed she had to kill to avoid imminent threat but belief was not reasonable.But see Robinson v. State (S.C. 1992, p. 769) (even where abuser was asleep, “where torture appears interminable and escape impossible, the belief that only the death of the batterer can provide relief may be reasonable in the mind of a person of ordinary firmness”).Other imminent dangerState v. Schroeder (Neb. 1978, p. 771) (inmate stabs sleeping roommate who credibly threatened him; court refuses self-defense instruction).Ha v. State (Alaska App. 1995) (inevitable violence is not a substitute for imminence; no self-defense).Jahnke v. State (Wyo. 1984) (no self-defense for premeditated killing of abusive parent; defense “antithetical to the mores of modern civilized society” and to allow abusive conduct to justify killing on subjective conclusions of the individual “would amount to a leap into the abyss of anarchy”).Necessity (Choice of Evils)More so than self-defense, the necessity defense is completely justified by utilitarian value calculations. Has its roots in traditional common law interpretation: rules are over inclusive and the courts maintain a supervisory role through necessity justification to ensure unique cases that the legislature would have excepted had they thought through every scenario do not get punished.See p. 804: MPC principle of necessity is subject to limitations – it is not enough that actor believes that his behavior possibly may be conducive to ameliorating certain evils; he must believe it is “necessary” to avoid evils. Moreover, the balancing of evils is not committed to the private judgment of the actor – subsection 1(a) requires that the harm sought to be avoided be greater than that which would be caused by the commission of the offense, not that the defendant believe it to be so. Further, this defense cannot succeed if the issue of competing values has been previously foreclosed by a deliberate legislative choice.Distinguish from duress!MPC 3.02(1) “Conduct which 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 justifications claimed does not otherwise plainly appear.”(2): if reckless / negligent in creating situation or appraising necessity of action, use that as culpability in pare to NY Penal Code, p. 805 (indicative of common law rule): justification elements are (1) necessary as emergency measure to (2) prevent imminent injury (3) that clearly outweighs desirability of avoiding the injury, (4) weighed objectively, and (4) actor did not create situation.MPC distinguishes and criticizes for two reasons: (1) emergency and imminence are bad proxies (purpose to ensure that action is truly last resort can be captured through other means w/out excluding otherwise justifiable acts); (2) requirement that actor did not create situation is too harsh: should allow e.g. someone that negligently started fire to destroy property in order to prevent it from spreading.About half of 50 states have necessity defense statutes. In fed law and other jurisdictions, necessity not totally excluded as defense, but rather a matter of judge-made law w/in each jurisdiction. (See, e.g., Schoon – 9th Cir. applies judge-made law.)People v. Unger (IL 1977, p. 798) necessity is defense to prison escape when conduct is reasonably believed to be necessary to avoid a harm that outweighs coming from that conduct and where situation was not created by D (reversible error not to give necessity instruction; court cites Il. statute that provides necessity as justification if D (1) w/out blame in occasioning situation, and (2) reasonably believed conduct was necessary to avoid injury greater than injury which might reasonably result from his own conduct).See Lovercamp test it cites (Cal. App. 1974 case): (1) specific threat of death, rape, SBI in immediate future; (2) no time to complain to authority or exists history of futile complaints; (3) no time / opportunity to resort to courts; (4) no force / violence employed against prison personnel / innocent persons in escape; (5) escapee immediately reports to proper authorities when attained safety from imminent threat). Court in Unger says all five factors relevant, but do not all have to be present to raise necessity defense; cf. dissent: need strict adherence to test).See U.S. v. Bailey (S.Ct. 1980) (in accord w/Lovercamp and contrary to Unger that prerequisite for invoking necessity defense in prison escape case is that D make bona fide effort to surrender / return as soon as duress / necessity “had lost its coercive force”).Southwark v. Williams (UK 1971) necessity is not a defense to trespass by homeless (court rejected necessity defense to homeless families in London who made orderly entry and became squatters; court wary about private property, extending necessity).Commonwealth v. Leno (MA 1993) necessity is not a defense when legislature already weighed the harms involved (concerned individuals began operating needle-exchange program for purposes of AIDS prevention in violation of statute; conviction upheld: legislature determined that it wants to control distribution of drug-related paraphernalia, and whether statute is wise/effective not w/in province of court; Ds did not show that danger they sought to avoid was clear and imminent rather than debatable or speculative).Massachusetts v. Hutchins (MA 1991) alleviation of D’s medical symptoms through use of marijuana does not clearly and significantly potential harm to public as determined by legislature (affirming conviction of sick man who grew marijuana for medicinal uses; see dissent: majority fails to consider rationale behind CL necessity: value protected by law may be eclipsed by superseding value which makes it inappropriate and unjust to apply the usual criminal rule).Dudley v. Stephens (UK 1884) rights trump utility; necessity is not a defense that will privilege killing – s-d only justification for murder (shipwreck survivors guilty of willful murder after they killed and ate cabin boy to stay alive; court: “to preserve one’s life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it”; “a man has no right to declare temptation to be an excuse”).How would this case come out under MPC 3.02?U.S. v. Schoon (9th Cir. 1992, p. 807) necessity is not a defense to indirect civil disobedience b/c (1) existence of law is not cognizable harm, (2) conduct is not reasonably able to alleviate harm, and (3) legal alternatives exist (sustaining conviction of protestors who gathered in IRS office and obstructed operations to protest use of U.S. tax dollars to fund violent activities in El Salvador).See note on p. 809: appellate courts “overwhelmingly” reject necessity instructions in civil disobedience situations, but Schoon unusual in issuing blanket denial of necessity defense in any indirect civil disobedience case.ExcuseTheory of ExcuseSee pp. 831-33.Excusable crimes are actions that are not punished b/c actor had no capacity to choose the action or cannot be blamed for the action. Three categories:(1) involuntary actions – i.e., not willed by actor; caused by actor’s brain but are not the product of the actor’s mind (reflex, convulsions, etc.)Would negate the act requirement.(2) conduct relating to cognitive impairment or deficiency – cognition used broadly to mean actor’s ability to know certain things both in fact and law.Insanity is classic irresponsible action excuse.(3) impairment or deficiencies in volition – actor is still voluntary, but e.g. threats, duress.Kadish: Hart argues that we confine liability to case where persons freely chose to act, which serves to maximize effect of person’s choices w/in framework of coercive law (more stability).DuressNecessity usually refers to defense resting on rationale of justification (see MPC 3.02): D violated a criminal prohibition, but given the circumstances, that was good b/c to do so was lesser evil). Duress, however, rests on rationale of excuse: D is accorded defense not b/c it was right to violate the law but b/c circumstances were so urgent and compelling that otherwise law-abiding people might have done the same in the circumstances.See more on pp. 840-841 for distinction.MPC 2.09:(1) Duress is an affirmative defense if actor “was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.” Note: threat has to come from some other actor, not natural event. See p. 842: different situations b/c in former, law may be satisfied by later prosecution of agent of unlawful force; in latter, if D is excused, no one is subject to law’s application.Threat has to be of “unlawful force.” Cf. common law: death or serious bodily harm.Imminence of threatened harm not a specific factor but presumably built into deciding whether conduct was that of person of reasonable firmness in his situation.Cf. common law: imminence typically absolute prerequisite to duress defense, and some statutes expressly limited defense to situations involving threats of “instant” death.Great majority of recent statutory revisions have rejected this MPC approach and preserved some requirement that threatened harm be immediate, imminent, or instant. Many recent judicial decisions likewise insist on this.(2) Defense is unavailable if actor was either reckless in placing himself in the situation in which duress was “probable.” Also unavailable if he negligently placed himself in that situation, “whenever negligence suffices to establish culpability for the offense charged.”(3) Woman can’t claim to have acted under duress of her husband, unless she faced the degree of coercion as defined in subsection (1).(4) Duress defense does not preclude necessity defense.Note that this standard it not wholly external in its reference: account is taken of actor’s “situation” (D’s size, strength, age, or health may be considered, but e.g. matters of temperament or intelligence would not).Under common law, duress is not a defense to killing of an innocent person, even if accused acted in response to immediate threats.But MPC would permit it as an affirmative defense.N.J. Penal Code only allows it to reduce crime from murder to manslaughter.State v. Toscano (N.J. 1977, p. 833) duress may be a defense to crime other than murder if D engaged in conduct because he was coerced by use of / treat of unlawful force against his person or person of another which person of reasonable firmness in his situation would have been unable to resist (reversing trial conviction of D denied duress instruction and convicted for aiding in preparation of fraudulent insurance claim; D argued he acted under duress b/c he and wife were threatened; court criticizes common law duress [recognized only when alleged coercion involved use / threat of harm which was “present, imminent, and pending” and “of such a nature as to induce a well grounded apprehension of death or SBH if the act is not done]; adopts new common law more in line w/ MPC [eliminates “imminence” and “serious harm” requirements]).U.S. v. Johnson (6th Cir. 2005, p. 838) (evidence of low IQ even if sufficient to establish mental retardation should not be admitted to modify “reasonable person” standard for purposes of a duress defense b/c mental deficiency difficult to identify and quantify).Cf. Commonwealth v. DeMarco (PA 2002) (mental retardation should be considered as part of an actor’s “situation” for purposes of the duress provision [which was derived from MPC] b/c trier of fact must ultimately base its decision on whether objective person of reasonable firmness would have been able to resist the threat if he was subjectively placed in D’s situation”; but probably limiting factor that defendant suffered from “a gross and verifiable mental disability” [alleviating problems of proof, etc. ID’d in Johnson, supra]).See also Zelenak v. Commonwealth (Va. Ct. App. 1996) (holding D’s evidence of multiple personality disorder was admissible to bolster her claim of duress b/c critical issue was “whether the accused acted out of a subjectively reasonable fear”); this is also the approach argued for by the English Law Commission.Courts uniformly hold that evidence of battered woman syndrome (BWS) is admissible to support claim of self-defense; but still disagreement about whether BWS evidence is relevant when woman claims duress as excuse for participating in e.g. robbery.See also p. 840 for N.J. case modifying “reasonable firmness” requirement.U.S. v. Fleming (Court of Military Review 1957, p. 843) reemphasizing immediacy requirements for duress defense in Korean P.O.W. case (upheld court-martial conviction for collaborating w/enemy; duress defense fails b/c although threatened w/ circumstances that pretty clearly suggest he would have died [e.g., threat to make him walk 200 miles midwinter w/out shoes, make him live in caves where mortality rate extremely high, etc.], “danger of death or great bodily harm was not immediate”; suggests defense may have been available if e.g. started walking and it became clear that he could not survive the march).International contextSee p. 847.Question whether duress should be available as defense to murder, torture, etc. in e.g. Rwanda and Yugoslavia.See Prosecutor v. Erdemovic (1997) (closely divided 3-2 vote; duress cannot be a complete defense to charges of executing civilians even though undisputed evidence says he was threatened w/instant death; can only be considered as mitigating factor; majority noted that though most civil law systems [France, Finland, Chile] recognize duress as complete defense to all crimes, most common law systems [including U.S.] do not.”Majority also suggests that “soldiers or combatants are expected to exercise fortitude and a greater degree of resistance to a threat than civilians.”Dissent argues majority setting “standards of behavior which require mankind to perform acts of martyrdom, and brand as criminal any behavior falling below those standards.”Abbott v. The Queen (explaining English position; terrorist may e.g. threaten family unless A obeys instructions to e.g. detonate bomb in crowded market – any limit on number of people you may kill to save your life and that of your family?).Should duress be allowed as defense to charges of atrocity when killings that D was coerced to perform would have occurred regardless of D’s participation? Can D claim he is choosing lesser harm, b/c if he refuses, those deaths plus threatened harm to him will occur?Excuse Based on Mental Irresponsibility: Insanity DefenseIn criminal process, mental incapacity can be a defense to a criminal charge, or it can preclude the guilty plea, trial, sentencing, or execution of a D.Rarely brought up as D and very rarely successful.Insanity: legal term that refers to a person’s mental state at the time of the commission of a criminal offense when that mental state legally precludes a finding of criminal responsibility.Incompetence is a legal term that refers to a person’s mental state at the time of a legal proceeding. A person who lacks sufficient mental capacity to understand or participate in the relevant legal proceeding is deemed incompetent (e.g., to stand trial, enter a guilty plea, or be sentenced or executed). It is possible to be insane but not competent, or vice versa.People have to be competent to stand trial on criminal charges, regardless of whether or not they were competent at the time the crime was committed. This is a forward-looking device – if you’re not committed, is it likely that you will take care of yourself?MPC 4.04: “No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures.”Sell v. U.S. (S.Ct. 2003, p. 867) (Constitution permits forced medication to render D competent solely for trial, but such instances may be rare due to constitutional right to refuse medical treatment [see p. 867 for list of requirements to be satisfied]).Concerns b/c requiring Ds to undergo treatment becomes backdoor to imposing punishment on individuals who would likely not be held criminally liable; instead, holding them indefinitely for “treatment” to achieve mental competency.General standard now is that D may only be held for “reasonable” amount of time.Most courts hold that D is competent to stand trial if he is suffering from total amnesia concerning crime but is otherwise in full command of faculties.Execution: S.Ct. held that Eight Am. bars execution of the insane (Ford v. Wainwright 1986, p. 867), but did not define what constitutes insanity under Eight Am.Most jurs now define insanity along Powell’s concurring opinion in Ford: D must have mental capacity to understand nature of death penalty and why it is being imposed on them.Some states have stricter tests: e.g. Washington and S.C. Supreme Courts require that prisoner not only understand but also have ability to communicate rationally w/counsel.At least one court held state may not subject insane death-row prisoner to antipsychotic medication against his will to restore his sanity. State v. Perry.Atkins v. Virginia (S.Ct. 2002) (Eight Am. prohibits execution of persons w/mental retardation, even if not “insane” under Ford standard b/c of societal consensus and b/c places such Ds at special risk of wrongful execution).Who raises the defense? (p. 869)In most jurisdictions, the decision to raise the insanity defense is left entirely within the defendant’s control (may wish to avoid civil confinement, etc.). Cf. English practice: prosecution can raise and their duty to do so rather than allow dangerous person to be at large.After acquittalCivil commitment – a judge, after a hearing, decides whether to commit a person indefinitely to a mental institution. In these states, insanity acquittees may be committed only in compliance with procedural and substantive standards for any mentally disturbed persons in the community – also constitutional restrictions (both mental illness and dangerousness must be proved by clear and convincing evidence, see Addington v. Texas (S.Ct. 1979)). Some states enacted special commitment procedures where mental illness, etc. can be made by a preponderance of evidence.Some jurisdictions follow an approach where commitment is automatic and mandatory for all insanity acquittees – upheld in Jones v. United States by S.Ct. Potentially problematic because may be difficult to demonstrate recovery later.Duration – until recovered and no longer dangerous, with this finding to be made by a judge, usually with the burden on defendant. In Jones, Court held indefinite commitment permissible, even when it exceeds the maximum sentence authorized for the underlying criminal offense.Guilty but mentally ill statutes – statute allows a jury a third option. It could 1) find D guilty; 2) find D not guilty by reason of insanity; or 3) guilty but mentally ill at the time of the offense. If #3, the court retains the same sentencing authority as in a guilty verdict, but if prison sentence, D is to be given treatment as is psychiatrically indicated for his mental illness. (Some 12 states have these statutes, typically as supplement to insanity defense.)Jury instructions – most courts have held that the jury should not be instructed on procedures that follow an insanity verdict (e.g., mandatory commitment, etc.), on the ground that what will happen to D is not relevant to whether the defendant met the test of legal insanity. For federal prosecutions, Supreme Court has held juries should not be informed of the mandatory commitment provisions applicable under federal law. (Shannon v. U.S.) Some courts have held that when commitment is mandatory, jury should be informed.Burden of proof All jurisdictions create a presumption of legal sanity at the trial – sanity of accused is presumed for all legal purposes. Jurisdictions split, however: 1) how much evidence needs to be presented before presumption disappears and question becomes an issue to be established by evidence, and 2) where the issue must be established by evidence, who bears the burden of persuasion, and how is that burden defined?Re: #1 – some states require only “some evidence”; others require more, usually, that evidence raise a reasonable doubt about sanity of accused.Re: #2 – once insanity becomes an issue, about a dozen states continue to adhere to what was once the majority rule requiring the prosecution to prove sanity of defendant beyond reasonable doubt.This approach was widely abandoned in the aftermath of Hinckley. Currently, 38 jurisdictions including federal courts place the burden of proof of insanity on defense. (Federal courts are regulated by 18 USC 17(b) which places burden of proof on defendant with clear and convincing evidence requirement.)FormulationsMPC 4.01: “(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law“; (2) “…’mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct”First prong is cognitive standard; second is volitional standard.See Blake v. U.S. (5th Cir. 1969) adopts MPC test; prosecution to overcome insanity defense must prove that D lacked “substantial capacity” to understand wrongfulness of action (remanding conviction and adopting substantiality standard b/c of current knowledge regarding mental illness).But U.S. v. Lyons (5th Cir. 1984, p. 879) person is not responsible for criminal conduct under insanity only if at time of conduct, as a result of mental disease / defect, he is unable to appreciate wrongfulness of that conduct (departure from Blake standard which adopted wholesale MPC insanity defense; D can raise defense but only if he lacks mental capacity to appreciate wrongfulness of conduct; removes volitional prong leaving only cognitive b/c impossible to distinguish between offenders who are undeterrable and those merely undeterred).Part of post-Hinckley backlash.Superseded by 18 U.S.C. 17(a), supra.Stricter? Requires “severe mental disease or defect” where Lyons talks only about “mental disease or defect.”KEY DEPARTURESMPC introduces two key departures to traditional rule: (1) incorporates volitional element (ability to conform to actions) – actor may have “irresistible impulse” toward criminal behavior; (2) adopts substantial capacity test: D does not have to prove he is 100% crazy, just that lacks substantial capacity.Attempts to capture advances in psychiatry: mental disorders are not off/on; rather understood in degrees. MPC criticizes all-or-nothing standard as too limited and failing to capture types of problems that render actions irresponsible.Substantial capacity has flexibility to accurately capture those problems but still distinguishes from moral failings of most criminals b/c “substantial” makes test quantitative.Also highlights tensions between aims of criminal justice system and psychiatry (blame vs. treat) – CJS blames actors for behavior rejected by society; psychiatry wants to diagnose and treat; anti-social behavior seen as symptom of underlying problem, not blameworthy action.Approach to will: free will v. determinative. CJS basic assumption that everyone chooses, so difficult to distinguish mental disorders from moral failures. Psychiatry sees world not as off/on but as predetermination in actions: as result of environmental cues, neurological hard-wiring, and personal experience.Federal law (18 U.S.C. 17(a)“It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.”Narrower insanity test than either MPC or M’Naghten standard.Traditional / M’Naughten RuleTraditional standard is whether actor could understand the difference between right and wrong b/c of some mental disorder / disturbance.Referred to as the “right / wrong” test. Goal is to distinguish types of abnormalities that make action irresponsible.Example: (1) squeezing a person’s neck believing it is a lemon (unable to appreciate nature and quality of actions); (2) acting in accordance w/what actor believes is direct command from God.M’Naghten (UK 1843, p. 873) an actor is not responsible for his / her actions if he could not understand whether action was right or wrong when he committed act (cognitive more than a volitional standard; D presumed to be sane, but to disprove D must show that when he committed act, he was “labouring under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong”).See also The King v. Porter (1933) (state of mind must (1) prevent actor from understanding right/wrong and (2) be caused by mental disorder).Legislative proposalsThree influential bodies (American Bar Association, American Psychiatric Association, National Conf. of Commissioners on Uniform State Laws) propose retention of the cognitive branch of the MPC insanity test and rejection of the volitional branch.Misc. notesLittle evidence that different formulations produce different results in practice. See p. 884.One study gave 100 experimental juries different instructions (1/3 M’Naghten, 1/3 more liberalized, and 1/3 were told to find not guilty if they believed “D was insane” when committed offense). Result: differences in instruction made much less difference than composition of juries.Other study likewise found no significant differences by using different standards, including subjective “their own best lights” definition.Same result w/ jurisdictions replacing / substituting tests: no significant effect on rate of insanity pleas tendered or insanity acquittals.Idaho, Kansas, Montana, Nevada, and Utah have abolished insanity defense.State supreme courts rejected constitutionality challenges to most of these b/c insanity defense so controversial and variable that it does not possess historical pedigree necessary to establish as fundamental right under DP clause.Cf. Finger v. State (Nev. 2001, p. 886)CURRENT MAJORITY RULES:States: although a substantial minority of states still adhere to MPC, several important jurisdictions have returned to the M’Naghten rule. By one count, by 2004, 30 states returned to some form of that rule, while only 15 states continue to use the MPC.Federal: as part of Comprehensive Crime Control Act of 1984, Congress enacted a provision that superseded the Lyons decision and narrowed the insanity test further; see 18 U.S.C. 17(a), infra.RAPEThe Act RequirementPerspectivesGordon and Riger: “Female Fear – Social Cost of Rape.”Fear of rape always present for women and worse than other crimes because they know they are held responsible for avoiding rape and if victimized, will be blamed. Acquaintance / nonstranger rapes constitute 55-60% of rapes reported. Many not reported – victims feel they won’t be believed, etc. Campus rapes – excessive amount of alcohol. People conditioned to accept sexual roles where male aggression acceptable.Frequency of rape (p. 292)Many not reported. One study – strangers = 54% not reported; acquaintances – 61% not reported; current / former husband / bf = 77% not reported. Comprehensive 1998 DOJ study – annual rape victimization rate for women 870 per 100,000 for <18 years or older.15% of adult women experienced completed rape; another 3% victims of attempted rape.Men = 3% of adult men victims of completed / att rape (incidence doubles for males in prison).College women = during avg 5-year term, 1/5 to 1/4 rape. Another study (Koss) = 27% of college women at least one compl / att rape.Controversy – Koss figures unrealistic; 73% of women did not label their experience as rape; 42% subsequently dated and had sex with attackers. Koss figures from late 1980s. Now higher proportion of women (from 1/2 to 2/3) call it rape.Alpha male – frequency / acceptability of sexually aggressive behaviorStanko: Women fear men, even familiar men.West: claim that women’s lives ruled by fear is heard by men as implausible.Amir – general assumptions that some aggression is expected part of male role in sex encounters.Nature of harm?Not just a species of aggravated assault – unwanted sexual intrusion important aspect. Male attitudes lead to inappropriate conceptions about amount of force necessary to constitute rape (MacKinnon).ApproachesTremendous diversity across jurisdictions. Two dominant types of rape law:Traditional view: crime of violence.Key element is force / threat of force.Evidence of resistance = proxy for lack of consent; presumed to consent unless evidence of threat of SBI prevented resistance.Modern view: crime of consent.Key element is lack of consent.Mistake for consent is not an excuse. See Commonwealth v. Shelly.See M.T.S. (N.J. 1992, p. 318): partner must affirmatively consent; otherwise sexual assault, and definition of “physical force” satisfied if D applies any force in absence of affirmative permission to sexual penetration. PENETRATION CONSISTS OF NECESSARY FORCE ABSENT AFFIRMATIVE CONSENT.i.e. act of sexual intercourse w/out consent = complete actus reus.Other states specifically eliminate requirement of force in rape and state that intercourse in absence of content is rape or sexual assault (e.g. NY, Wis.).Remains very minor standard. Statutes in vast majority of states still require both D’s force and victim’s nonconsent; for great majority of courts, required force is not force inherent in penetration but that used to overcome resistance. See p. 308.Use knowledge / reckless mens rea standard.State v. Rusk (MD 1981, p. 302) lack of consent is fact to be found by jury through resistance or reasonable fear of SBI if resisted (judges look at totality of circumstances; immobilization plus Rusk’s hands on her throw were sufficient to establish a reasonable fear to overcome victim’s resistance, even though she was ostensibly not immediately threatened).The Resistance RequirementTraditional view is that victim must resist “to the utmost.”Only one U.S. state retains this (LA for aggravated rape). Several require “earnest resistance.”About half the states require at least “reasonable resistance.”In remaining states, resistance no longer formally required, but courts continue to consider resistance or its absence of probative on consent.See People v. Warren (Ill. App. 1983) (reversing rape conviction b/c complainant was never threatened and never told D to leaver her alone; failure to resist when within her power conveys impression of consent regardless of her mental state and removes from the act performed an essential element of the crime); see p. 310.See People v. Barnes (CA 1986, p. 308) (requirement to resist grounded in basic distrust toward women bringing sexual assault charges; physical resistance is not proper proxy to consent b/c different people react differently to threats or fear).Central problem w/resistance is that it inappropriately focuses on victim’s activities rather than blameworthiness of actor; e.g., we do not expect reasonable resistance from robbery or assault.Cf. David Bryden: citizens need to know boundary between lawful / unlawful conduct esp. for serious crimes like rape; physical force marks well-known bright-line rule.Absence of ConsentFour types of non-consent standard:verbal resistance and other behavior that makes unwillingness clear (totality of circumstances);verbal resistance alone (“no” always = “no”);verbal resistance or passivity, silence or ambivalence (anything other than affirmative permission by words or conduct); orall words and actions other than express verbal permission (everything other than saying “yes”).Wis. statute and M.T.S. choose #3.Many courts and contemporary statutes continue to presume consent in absence of some affirmative expression of unwillingness; some jurisdictions commit to #1 – no doesn’t always mean no.Consider State v. Gangahar – said no, but considering “all of her actions or inactions,” jury could have found she did not really mean no.NY Penal Law: lack of consent = victim clearly expressed lack of consent, and reasonable person in actor’s situation would have understood such person’s words and acts as expression of lack of consent to such act under all circumstances.Husak and Thomas article: single physical rejection following hours of foreplay obv. different than repeated physical and verbal rejections. At some point along this spectrum, it is no longer reasonable for man to think woman had consented. “No” does not have a magic quality – rather, social convention is that a certain pattern of linguistic and nonlinguistic behavior could not be reasonably understood to mean anything other than “no.”Professor Berger – verbal “no” should suffice; but jury has to believe that she did say “no.”Schulhofer – semi-stupid athlete / surgeon analogy. We have to think of rape as offense against patient’s autonomy. Nonconsent is then anything that is not an affirmative, crystallized expression of willingness.Anderson – studies confirm that men consistently misinterpret women’s nonverbal behavior, so verbal should suffice. Moreover, consent to sexual foreplay should not assume consent to sexual penetration.Nonphysical Threats (pp. 313-17)Courts typically require some force as used in ordinary / normal connotation (e.g., physical compulsion, use or threat of immediate threat of bodily harm, injury, etc.).See State v. Thompson (Mont. 1990, p. 313) (dismissing sexual assault charges against high school principal D who forced student to submit to sex by threatening to prevent her from graduating b/c force cannot include intimidation, fear, or apprehension [sort of hints legislature should maybe amend language]).See Commonwealth v. Mlinarich (Pa. 1985, p. 313) (dismissing sexual assault charges against D who had custody of juvenile and forced her to have sex by threatening to send her back to juvenile detention home: force = physical force or violence; see dissent: Webster’s provides 11 definitions of “force,” some of which include mental compjulsion).Comment, Toward a Consent Standard in the Law of Rape”Freedom of sexual choice which is to be protected by rape law can be as effectively negated by nonphysical as by physical coercion.See MPC 213.1(2):permits a conviction for “gross sexual imposition” where submission is compelled by threat of force or by “any threat that would prevent resistance by woman of ordinary resolution.”To establish “gross sexual imposition,” MPC requires two distinct inquiries. First, defendant’s proposal must prevent resistance by woman of ordinary resolution. Second, even if it does, the defendant still not be guilty under the Code unless he has made a threat as opposed to an offer. (May be difficult to distinguish.)Some states accomplish a result similar to MPC 213.1(2) by extending offense of rape / sexual assault to situations where consent is obtained by “duress” (Cal. Penal Code), coercion, extortion, or position of authority.Prof. Chamallas: refusal to regard economically coerced sex as rape allows men to continue to use their economic superiority to gain sexual advantages.Prof. Bryden: women often their sexual superiority to gain economic advantages, so who is the extortionist?Mens ReaSee Commonwealth v. Sherry (Mass. 1982, p. 342) mistake for consent is not an excuse to rape; imposes SL for rape if woman says no (affirming rape conviction of several doctors who had sex w/nurse).Highlights break from traditional mens rea requirements: for most crimes, default is knowledge or recklessness. Rape, however, seems to have adopted reasonableness / negligence standard for culpability for lack of consent. Still triggers problems:Reasonableness from whose perspective? Disconnect between male / female perceptions of conduct.Conditioning and social patterns: (1) men taught to be sexual aggressors; (2) women taught to say “no” but not mean it; (3) creates different perceptions of power relations.See also Commonwealth v. Simcock (Mass. 1991, p. 348) (judge refused defense request for instruction on reasonable mistake to consent and told jury that “a belief that the victim consented would not be a defense even if reasonable”); appellate court affirmed, stating that result was in harmony with analogous rule that defendant in statutory rape case is not entitled to an instruction of reasonable mistake as defense.See Commonwealth v. Lopez (Mass. 2001, p. 348) (court refused to allow a mistake of fact defense on the issue of consent; reasoned that prosecution must in any event prove that defendant used force and that subjective culpability is therefore inherent in his actions.Is that true? i.e., inevitable that defendant will have realized that victim perceived his actions as threatening?American authority runs strongly against the MA view, but several states seem to have joined MA and PA in opting for strict liability on the consent issue.Majority ruleMost of the recent US cases permit a mistake defense as to consent, but only when defendant’s error as to consent is honest and reasonable.In England, in contrast, House of Lords has held that prosecution must prove defendant either knew consent was absence was proceeded recklessly.Alaska is one of few US jurisdictions to require proof of recklessness (Hess v. State) (legislature has dispensed with resistance requirement and thus substantially enhanced risk of conviction in ambiguous circumstances; under this view, legislature countered this risk by shifting the focus of jury’s attention from victim’s resistance or actions to defendant’s understanding of totality of circumstances).This is an interesting response to legislature removing resistance requirement. See above.Problems of ProofFalse chargesRape remains the most underreported of major crimes (recent Justice Department study says only 28% of rape reported). But some argue some groups may underreport while others overreport. Dershowitz – police classify 8.4% of rapes as “unfounded,” which is dramatically higher than false reports for other serious crimes (~4% for burglary, 1.6% for assault, etc.Current lawCorroboration requirement – no American state now requires corroboration in all forcible rape cases.D.C. Cir. abandoned in U.S. v. Sheppard (1977, p. 362) (discarded b/c poses potentially severe obstacle to legitimate convictions for sex offenses).Special jury instructions – many traditional instructions asked juries to examine testimony of female person “with caution.” Trend away from this in many jurisdictions, other by statute or by judicial decision; in recent years, several states barred instruction by statute or judicial decision.MPC: as drafted in 1950s and approved in 1962, MPC requires both corroboration and jury instruction warning jurors to evaluate complainant’s testimony “with special care.” Largely superseded by more recent developments.Nearly all states have rape shield laws, which prevent prior sexual history from admission of trial. (But almost always allow history of sexual relations between D and accuser, and sexual history immediately preceding / following alleged rape [because D can claim that bruising, etc. result of intercourse w/another person]).Intrinsic justification: prejudicial nature w/out probative value.Extrinsic justification: encourages reporting of rape; protects privacy.Some states do not follow b/c departure from traditional low standard probative requirements for admissibility.Glavin article (AM 74-85)Feminists maintained male-dominated legal system based on traditional ideology that has double standard for male and female sexuality, and dichotomy between “good” and “bad” women. Consequently, argue that rape was designed not to protect woman’s bodily integrity and freedom choice, but to protect man’s right to exclusive possession of chaste woman. Unchaste women also inclined to falsely charge rape. Totality of above deters women from reporting rape – “twice traumatized”; first by rape, second by legal system.Reform – against use of complainant’s sexual history with persons other than accused. Changing climate (many women have consensual sex outside of marriage, so character-neutral and not probative). Also, trial judges can exclude evidence whose probative value substantially outweighed by jury prejudice, etc.; can also exclude to prevent needless harassment of witness. However, judicial branch failed to respond; consensus for change in legislative branch but no consensus as to statutory formula. Constitutional issues – violates the dual Sixth Amendment guarantees of right to full cross examination of complainant insured by confrontation clause, and right to offer favorable defense evidence (compulsory process clause).However, difference in rape – in e.g. Davis v. Alaska (mandatory anonymity for juvenile set offenders set aside), info relevant and promotes accurate fact-finding; with rape, however, info re: complainant’s past history not relevant (see above).Exceptions – generally agreed that relevant when 1) defendant claims consent and establishes prior consensual relations, and 2) proves specific sexual acts between complainant and another man at relevant time with proof sufficing to prove an alternative explanation for physical consequences of alleged rape.See People v. Williams (Mich. 1982, p. AM-79) (rejecting D’s constitutional challenge that barring evidence about victim’s prior sexual relations / work as prostitute violates right of effective cross-examination under the Sixth Am.; prior sexual relations do not make it more likely that there was consent in this specific case; evidence of prostitution not probative of consent / credibility [maybe even more unlikely that she would engage in gratis intercourse]).OMISSIONSAn omission to act is not a crime but a theory of liability. General Anglo-American position is that unless a penal statute specifically requires a particular action to be performed, criminal liability for omission arises only when some other law (e.g. torts) or some other law imposes a duty to act.This is also MPC position (see 2.01(3): liability for an omission only when “a duty to perform the omitted act is otherwise imposed by law”).MPC 1.13(4): “’omission’ means a failure to act.”You may not be punished for failing to fulfill a moral obligation unless there is an accompanying legal obligation. See, e.g., Pope v. State.There is no general duty to aid another in peril, unless a statute imposes such a duty.Liability for omissions can attach as follows.Statutory duty to act: criminal code specifically defines the failure to complete an act as sufficient for punishment (e.g., failing to file an income tax or to register for selective service).Good Samaritan statutes: some states make it a criminal offense to refuse to render aid to a person in great peril if such aid can be rendered w/out danger to actor, etc. See p. 200 for details. Violation usually = misdemeanor or petty misdemeanor, but prosecutions still rare.Cf. European countries (may be punishable for up to 5 years; frequently prosecuted).Duty-based: if a specific legal duty is imported into an existing statute, e.g. “homicide is any conduct that results in death” becomes “homicide is the failure to perform legally defined duty X that results in death.” Liability would then be phrased as “X is guilty of homicide on a theory of omission.”Contractual duty: if one assumes a contractual duty to care for another.Placing other person in peril: initial action that places another at risk imposes duty.See notes on pp. 205-06 re: liability (manslaughter v. murder), etc.Voluntary assumption: if one has voluntarily assumed the care of another and so secluded that person as to prevent others from rendering aid.But see Pope v. State and State v. Miranda.Special relations (see Jones v. United States, fn.9 on p. 193): some status relationships impose a duty to act.(1) Parent to child;(2) Husband to wife;(3) Master to apprentice;(4) Ship’s master to crew / passengers;(5) Innkeeper to drunk patrons.Remember that causation still remains a key issue: have to show that if the actor had in fact provided the aid, it would have prevented the harm.Most cases where liability for homicide is imposed for failure to act is like Jones, i.e. involuntary manslaughter. However, the case might become murder is the D refused aid with the intention of causing death, or with full knowledge of a great risk that the decedent would die.See Commonwealth v. Pestinikas (D permitted 92-year old man to starve to death after agreeing to feed him and knowing there was no other way for him to obtain food; murder in the third degree).See p. 207 re: possessionMisprision of felonyDuty to report a felony; mentioned and overturned as a chargeable offense in Pope v. State. This was a common law offense that was abolished in U.K. in 1967 and in most U.S. jurisdictions since.Federal misprision of felony statute, 18 U.S.C. 4, but this requires active concealment of known felony; mere omission of failing to report not sufficient.Several U.S. states still recognize common law offense; South Dakota and Ohio have re-established it through statutes that create a general obligation to report any known felony.Note that all U.S. jurisdictions require members of some professions to report suspected cases of child abuse (usually failure = misdemeanor), including doctors, nurses, teachers, clergy, etc.Congress / state legislatures have required individuals to report suspicions concerning crimes e.g. elder abuse, domestic violence, environment crimes, money laundering, and other financial crimes.CasesJones v. U.S. (D.C. Cir. 1962, p. 192) (duty of care must be determined before liability can attach on omission; reversing manslaughter conviction where D failed to provide food and medical care to family friend’s 10-month old child, who died as result; remanded to determine whether assumption of contractual / voluntary duty existed).Pope v. State (Mary. App. 1979, p. 194) (no duty of care to woman in home w/out special status relationship; no omission liability where D allowed disturbed mother and her child in her house, then did nothing while the mother beat the child to death; not liable b/c she was not the guardian and the mother was present).People v. Beardsley (Mich. 1907, p. 202) (reversing conviction of manslaughter where D failed to call physician after his girlfriend took a fatal dose of morphine tablets b/c he owed her no legal duty).People v. Caroll (NY 1999, p. 202) (stepmother owes duty of care to her husband’s children; upholding child endangerment indictment where stepmother failed to prevent her husband from killing his daughter).But cf. State v. Miranda (Conn. 2005, p. 203) (non-formal stepfather owes no duty of care to girlfriend’s child; reversing first-degree assault of live-in boyfriend who resided with family, had taken care of the child, and considered himself to be stepfather, but failed to protect child from a fatal being inflicted by his girlfriend) – court concerned about extending parental liability in light of demographic trend toward nontraditional alternative family monwealth v. Cardwell (Pa. 1986, p. 204) (mother has duty to protect her child from abuse; upholding conviction of child abuse for failing to take sufficient steps to protect daughter from husband-stepfather sexually assaulting her) – court recognizes tension between battered women syndrome and requirement to protect child.SIGNIFICANCE OF RESULTING HARMCausationCausation arises only w/respect to crimes that have result elements (e.g., robbery, theft, rape, etc. have no result element).D must be shown to have caused the result. Particularly important in homicide b/c death of victim is the result element, but usually easy to prove. However, issues may arise with e.g. infliction of damage to property or assaultive crimes involving infliction of harm to the person. Distinguish:But-for cause: cause in fact, sine qua nonProximate cause: legal cause, imputable cause.To be liable, actor must be both the “but for” and “proximate” cause of result. Usually, hard questions involve questions of proximate cause.“Criminal takes his victim as he finds him.” People v. Stamp.See MPC 2.03 (causal relationship between conduct and result; probable and actual result).But-for causationMultiple sufficient but-for causes (e.g., D1 and D2 simultaneously shoot at V intending to kill him and both inflict a fatal wound): liability for murder attaches to each, whether their acts are independent (i.e., each shot would have killed him) or complimentary (i.e., need both shots).But e.g. if D1 shoots him in the heart (instant death) and D2 shoots in lung (which would kill in an hour), D1 is guilty of murder, and D2 is guilty of attempt.Proximate causeMore difficult. Proximate cause cannot be stated in specific rule; rather a “cluster of intuitions” about when intervening actions become superseding causes and limit liability of D. Higher standard than in tort law. Four general principles to help discern when a cause has been superseded:(1) Suddenness: e.g., lightning striking the ambulance after victim was shot and being transported to the hospital.(2) Unusual circumstances: e.g., a rare disease is contracted in the hospital.Medical malpractice is not intervening cause unless it is the sole cause of death, see State v. Shabazz.(3) Human agent: a chain of causation is more likely to be broken by actions of a human than other circumstances.(4) Blameworthiness: if another comes in between that is more blameworthy, e.g. a nurse poisoning the victim at the hospital; particularly when criminal act.Transferred intentWhen actor tries to harm A but harms B in the same way, the court will allow intent for A to transfer to B. See People v. Scott.MPC 2.03(2)(a): where crime requires that defendant intentionally cause a particular result, that element of crime is satisfied if D accidentally causes that result to one person while intentionally trying to cause it to another.Not confined to homicidal crimes. See, e.g., State v. Contua-Ramirez (intentional assault upon wife converted to intentional injury of child where D accidentally struck child the wife was holding [class 4 felony vs. class 1 misdemeanor], upheld).CasesU.S. v. Hamilton (D.D.C. 1960, p. AM-91) (victim pulling out breathing tube out of mouth not superseding cause; upholding manslaughter (but second-degree murder case?).People v. Kribe (NY App. 1974, p. AM-94) (an accident that killed a drunken man who Ds robbed and left on the side of the road in freezing temperature is not intervening and superseding cause b/c accident was foreseeable and directly related to Ds’ actions).People v. Stamp (p. 518, 438) (upholding felony-murder conviction of robber where victim who suffered from severe coronary disease died of heart attacked triggered by fright experienced during the offense).State v. Lane (N.C. App. 1994, p. 518) (convicting under misdemeanor-manslaughter where D punched drunk in the face, guy fell to the street, died two days later b/c as he was a chronic alcohol, he was especially susceptible to such an injury; what result on appeal?)Unfair to apply vulnerable-victim rule when victim himself is responsible for pre-existing condition?State v. Shabazz (1998, p. 519) (evidence of hospital’s gross negligence offered by medical experts properly excluded where stabbed victim died after surgery b/c no evidence from which jury could rationally conclude medical malpractice was the sole cause of victim’s death).U.S. v. Main (9th Cir. 1997, p. 519) (jury must find that victim’s death was within the risk created by D’s conduct; reversing and remanding for jury involuntary manslaughter conviction where D’s truck collided w/obstacle, trapping passenger inside wreckage, and passenger suffocated b/c pursuing officer decided not to move him out of fear of head/neck injuries).People v. Campbell (Mich. App. 1983, p. 523) (reversing murder indictment where D encouraged decedent to kill himself and provided him with gun, and decedent killed himself after D left; reversed b/c suicide excludes by definition homicide, also b/c D had no present intention to kill – provided gun and departed).People v. Kevorkian (Mich. 1983, p. 524) (remand for reconsideration of D’s motion to quash indictments of murder; distinguishing assisting in a suicide from murder [traditional approach was to equate the two]; principle: conviction of murder is proper if D participates in the final overt act that causes death, such as firing a gun or pushing plunger on hypodermic needle, but not where D is involved merely in events leading up to commission of final act, e.g. furnishing the means; death must be direct and natural result of D’s act).AttemptGrading of AttemptsAttempted but failed crimes are traditionally graded and punished as lesser offenses than the crime that was attempted. The punishment for identical actions therefore turns on the result of the action.MPC approach, however (adopted by substantial minority of states), grades attempts and completed crimes the same, except for crimes punishable by death or life in prison.Rationale: just punishment (the act, not the harm is morally blameworthy and should be punished equally); deterrent (risk of severe punishment regardless of outcome adds to net deterrent of crime).Counter: retributive (punishment should be meted out in proportion to harm); attempt laws are broader (includes some acts that are similarly blameworthy, but others are only part-way conduct); moral hazard (if lower punishment, then reason to back out before committing crime); impute lesser culpability on inability to complete crime.See lecture notes for philosophy, etc. on 544-547.Mens ReaThe actor must have specific intent to commit the crime (purposeful mental state) to be held liable for attempting the crime, even if recklessness or some lesser mens rea would suffice for conviction of the completed offense.Not anomalous for intentional crimes e.g. larceny, but different for unintentional crimes like manslaughter, where same action may be punished for homicide if resulting in death and not punishable as an attempt.Different question than punishment of act vs. attempt: rather, the question is about whether the same culpability should be sufficient for liability for an attempt as for the completed crime.Most states have rejected the concept of attempted felony-murder.If jurisdiction requires specific intent for attempt (vast majority), there can be no offense of attempted involuntary manslaughter (b/c essence of involuntary manslaughter is unintentional killing).What about attempted voluntary manslaughter, e.g. when D acting under extreme provocation shoots at provoker trying to kill him? (Most courts would recognize.)See p. 552 (Commonwealth v. Dunne) re: attempted statutory rape.See also MPC 5.01 treatment (p. 553).CasesPeople v. Kraft (Ill. App. 1985, p. AM-97) (reverse and remand for new trial two counts of attempted murder; knowledge that consequences of act may result in death / GBI not sufficient, there must be specific intent to kill for attempted murder to attach).Attempt requires specific intent of resulting harm!Thacker v. Commonwealth (1922, p. 550) (drunk shot at light shining through tent canvas; held: b/c D lacked intent to kill, could not be convicted of attempted murder).Act RequirementIssue in attempt law is where to draw the line between otherwise legal activity and activity punishable as an attempt to commit the crime. Two approaches:(1) traditional (“dangerous proximity” test), see People v. Rizzo.Proxy for mental culpability: we want to be sure that the actor is truly blameworthy before we condemn as society.(2) MPC (“substantial toward completion” that corroborates intent), see U.S. v. Jackson.Also proxy for mental culpability, but test measures distance traveled from first step toward the crime, and uses it to determine whether the actor has become blameworthy.MPC 5.01(1)(c): [person is guilty of attempt if he has culpability otherwise required for commission and] “purposely 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 his commission of the crime.”MPC 5.01(2): [see p. 1100; long list of factors that, if strongly corroborative of criminal purpose, is not insufficient as matter of law (e.g., ling in wait, reconnoitering, etc.)].MPC 5.01(4): renunciation of criminal purpose – provides affirmative defense to attempt if abandoned or otherwise prevented commission under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. (Fairly limited, see p. 1100 re: attendance circumstances, etc.)Many states deny any defense of abandonment once elements for attempt are completed.Most courts that do allow renunciation defense use substantially similar language to 5.01(4).MPC ApproachTest = two prongs:culpability for crimesubstantial step towards completion that corroborates firmness of intent§5.01(2) substantial step definitions:lying in wait or searching for, following victimenticing or seeking to entice victim to go to crime locationcasing location of crimeunlawful entry to location where crime intended to commitpossession of materials specifically designed for unlawful usepossession of materials to be used near contemplated location of crimesoliciting innocent agent to engage in element of crimeCasesPeople v. Rizzo (NY App. 1927, p. 555) (putative bank robbers not in presence of intended victims, so did not cross proximity threshold to the crime).State v. Duke (Fla. Dist. 1998, p. 556) (D’s overt acts did not go far enough to constitute an attempt at sexual battery where D solicited sex from officer posing online as 12-year old and was arrested in parking lot where they agreed to meet).People v. Johnston (NY App. 1982, p. 558) (denying renunciation defense to D who departed store after entering gas station, producing a gun, demanding money, and being told there was only $50).People v. McNeal (Mich. App. 1986, p. 558) (denying renunciation where D forced victim at knifepoint to accompany him to house w/intent to rape, but released her after she pleaded to let her go [renunciation not voluntary]).Cf. Ross v. State, same page, similar facts, different result.U.S. v. Jackson (2nd Cir. 1977, p. 565) (possession of robbery tools along with requisite culpability is sufficient to meet substantial step test)State v. Davis (S.Ct. Missouri 1928, p. 571) (reversing attempted murder in the first degree where D had planned to kill friend’s husband to collect insurance; mere solicitation, unaccompanied by an act moving directly toward the commission of the intended crime, is not an overt act constituting an element of the crime of attempt; employment of undercover officer as agent to murder was not tantamount to attempt b/c agent did not commit an act that could be construed as an attempt).Note that b/c agent was feigned participant, traditional common law doctrines would not permit him to be treated as D’s accomplice, and therefore D could not be held accountable for steps taken by agent: liability would have to rest on D’s own actions.U.S. v. Church (1989, p. 571) (upholding attempted murder conviction of D; D solicited “hit man” (undercover agent), agent pretended to carry out hit and produced staged evidence; D’s conduct in obtaining services, planning crime, and advising on details constituted “substantial step” and goes beyond mere preparation; “armed a missile . . . and fired it off, fully believing that it was aimed directly at his intended victim”).This is attempted murder case. Note that solicitation itself is punishable attempt if represents a “substantial step” under the circumstances (see p. 574); but many states adhere to view that “no matter what acts the solicitor commits, he cannot be guilty of an attempt because it is not his purpose to commit the offense personally.”See MPC 5.02 for solicitation statute.Substantive Crimes of PreparationMany inchoate substantive crimes that do not require resort to law of attempt, e.g. solicitation and conspiracy.Burglary and assault are classic common law example.Assault (MPC 2.11(1)(a)) is frequently classified as attempt to commit a battery.Many instances of law containing merely preparatory behavior as substantive crimes, e.g. law forbidding entry into school building with intent to disrupt classes, loitering (but see Morales), stalking, etc.Criticized both as overbroad and underinclusive.ImpossibilityOld approachFactual impossibility to commit a particular crime is typically not available as a defense: e.g., actor can be held liable for attempted murder if he shoots in the room where the target usually slept, but target happened to be sleeping elsewhere.Legal impossibility may be available as a defense: e.g., actor who shot at stuffed deer would not violate statute prohibiting deer-hunting at that time even though actor believed the stuffed deer to be a live animal, b/c it is not a crime to shoot a stuffed deer.Or, e.g., no liability to attempt to bribe a juror where person bribed was not, in fact, a juror.Modern / MPC approachSee MPC 5.01(1).Person is guilty of attempt when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. It is no defense that under the attendant circumstances, the crime was factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be.Basically, if e.g. D thinks victim is alive when he shoots him, the fact that he was actually dead is not a defense to a charge of homicide.See People v. Dlugash (N.Y. App. 1977) (reversing murder conviction and remanding for jury finding whether D acted in belief that victim was alive).GROUP CRIMINALITYLiability for Substantive Crimes as an AccompliceIntroductionModern statutes have largely eliminated CL distinctions apart from accessory after the fact (e.g. person who knows a felony was committed and assists the felon), who is still generally subject to a lesser punishment. Theory of complicity.No longer necessary to charge D w/particular form of complicity: D may simply be charged w/substantive crime committed by the person the defendant aided or encouraged.See MPC 2.06.“Aiding and abetting,” “being an accessory,” etc. are not separate offenses with their own penalty; rather, they allow for liability to attach as to the actual substantive crimes committed.Though offense of accessory after the fact is maintained in many current statutes as a separate offense with its own penalty, regardless of what substantive offense is committed by principal.The crime of conspiracy is a distinct offense w/its own penalty.But conspirator may also be liable in some jurisdictions for criminal acts of fellow conspirators even though strictly under the law of principals and accessories, the person might not be liable.Accomplices and principals are guilty of the same crime and thus subject to the same range of penalties. This is dealt with practically via sentencing discretion or specified reductions in punishment for those who played only a minor role in the offense.Mens ReaBasic rule: the accomplice must have specific intent to the crime or the furtherance of the crime for liability to attach; i.e., for person to be liable as accomplice, he must actually intend his action to further the criminal action of the principal. Key departures:(1) NY-style “criminal facilitations” that allows for knowledge to suffice;e.g., if D believes it is probable that he is rendering aid to a person who intends to commit a crime and engages in conduct which provides such persons with means or opportunity for the commission thereof, and which in fact [note: not substantially] aids such person to commit a felony.See p. 600: “criminal facilitation” = misdemeanor. Separate offense!(2) Luparello rule: under CL, accomplice is liable for any “reasonably foreseeable” acts of accomplices while committing the crime;(3) Result element (see below): MPC says need same culpability to result as required by statute;(4) Posner’s argument in prisoner murder case (U.S. v. Fountain): suggests that though purpose may be required to convict of lesser offenses, knowledge suffices to convict of major crimes, see p. 600. FOUNTAIN IS A MURDER CASE(5) Statutory exceptionsSee p. 602 re: “material support” to terrorism (punishing knowing provision of “material support”).See p. 603 re: money laundering (applying knowing standard)MPC ApproachSee MPC. 2.06(3): a person is an accomplice when, with purpose of facilitating / promoting commission of offense, he:solicits person to commit the offense;aides / agrees / attempts to aid in planning or committing;has legal duty to prevent but fails to make effort.CasesHicks v. U.S. (S.Ct. 1893, p. 593) (reversing and remanding accomplice murder conviction b/c jury instructions did not ask jury to find whether words of encouragement were used with the specific intent of encouraging and abetting murderer; i.e. insufficient if words were used for a different purpose but had actual effect of inciting murder).State v. Gladstone (Wash. 1970, p. 595) (dismissing aiding and abetting unlawful sale of marijuana case; knowledge of criminal activity is insufficient for liability to attach; fact that D told person where and from whom to buy weed insufficient where no evidence that he counseled, encouraged, induced, etc. seller to sell weed).D must “seek by his action to make it [the crime] succeed” (Peoni rule by Learned Hand, quoted in Gladstone).People v. Luparello (Cal. App. 1987, p. 604) (affirming accomplice murder liability where D asked friends to discover his former lover’s whereabouts from her current husband “at any cost” and one of the friends shot and killed husband; argument that murder was unplanned and unintended fails b/c accomplice is guilty not only of offense he intended to facilitate, but of any “reasonably foreseeable offense” committed by the person he aids and abets).NOTE: natural and probable consequences test is a minority rule (see p. 609 for examples); controversial, and rejected by some courts.Similar but not identical to Pinkerton doctrine developed in conspiracy law, where D guilty of conspiring to commit one offense may be convicted of other offenses his coconspirators commit in furtherance of the conspiracy, as long as those offenses are reasonably foreseeable consequences of agreement.MPC rejects the natural and probable consequences doctrine.Mens Rea as to ResultSee State v. McVay (Rhode Island 1926, p. 610) (upholding accessory manslaughter indictment in steam boiler explosion case; manslaughter may consist of e.g. an unlawful act resulting in unintentional killing, or if unintentional killing is occasioned by gross negligence; no reason why prior to commission such crime, one may not aid the doing of unlawful act).MPC ApproachSee MPC 2.06(4): actor must have the same culpability to result as the offense requires. So, e.g., to be liable for murder, the accomplice must have specific intent to facilitate offense and purpose / knowing about the death of the victim.Part of the break from the Luparello natural and probably consequences rule.The Act Requirement: Encouragement or AidThe accomplice must actually take positive act toward the completion of the crime. Encouragement suffices. Neither aid nor encouragement actually have to further crime; the act requirement is satisfied so long as they are only intended to do so.Wilcox v. Jeffery (UK 1951, p. 616) (encouragement to play saxophone [manifested by buying ticket, observing, and not protesting] where such playing was an unlawful act is sufficient for accomplice liability to attach).State v. Tally (1894, p. 618) (upholding accomplice liability where judge blocked warning telegrams though it was highly likely that murder would have been done without his aid).Fo00r accomplice liability, it is not necessary to establish a but-for relation between the defendant’s action and the criminal conduct for another; even if the same result might have occurred w/out D’s contribution, he can be liable as accomplice if he acted w/required mens rea.SEE pp. 619-620; MPC 2.06(1-3) re: actual / attempted aid & encouragementLiability for Crime of ConspiracyConspiracy is an agreement between two individuals, with intent to commit crime, to commit / further a criminal offense. The act of agreeing is the act requirement; but conspiracy statutes also require an act in furtherance of the agreement.Inchoate crime b/c agreement is punishable whether or not the agreed-upon offense ever occurs. Unlike attempt, however conspiracy does not merge into the complete offense (punishable separately and in addition to completed offense).Conspiracy vicarious liability and mens rea concerns are nearly identical to complicity issues.Note that conduct can be punishable as conspiracy at points much farther back in the stages of preparation than the point where liability begins to attach for attempt.The Act Requirement: AgreementAct requirement. The act of specifically agreeing to commit or further a criminal offense is the act requirement for conspiracy. Rule has evolved to require that the conspiracy must be verbalized between the actors; however, the conspirators neither need to know all the details nor all the participants to be party of a conspiracy.U.S. conspiracy statutes have typically added an overt-act requirement (contra common law); but many jurisdictions / MPC (5.0.(5)) dispense w/over-act requirement for most serious offenses. See p. 693.Inferring conspiracy. When multiple persons are acting in concert, court / jury can infer the conspiracy of the actors (see p. 690, Coleridge instruction). Note, however, there must be not just a “concurrence of wills but a concurrence resulting from agreement.” Agreement can only be implied in absence of evidence that the concurrence was accidental.Abandonment. A conspiracy is considered abandoned when none of the conspirators is enging in any action to further the objectives. If such inactivity continues for a period equal to the statute of limitations, prosecution will be barred. See MPC 5.03(7)(b).A single conspirator may start the statute of limitations running as to him if he takes “affirmative action” to announce his withdrawal to all other conspirators. Some courts require more e.g. that D thwart the success of the conspiracy.Federal courts have abandoned the stringent withdrawal standard. See U.S. v. U.S. Gypsum Co. (S.Ct. 1978, p. 671) (withdrawal / abandonment can be established by affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonable calculated to reach co-conspirators).MPC 5.0(7)(c) is in accord with the Gypsum standard.Most states, following MPC, allow a complete defense for renunciation under some circumstances. MPC allows the defense only if the circumstances manifest renunciation of the actor’s criminal purpose and the actor succeeds in preventing commission of the criminal objectives. MPC 5.03(6).Grading. Traditional approach is to treat conspiracy as generic offense and prescribe punishment range unrelated to those authorized for the object crimes; e.g. 18 USC 371 provides that punishment for conspiracy is up to 5 years imprisonment, regardless of seriousness of object offense (but when object crime is misdemeanor, punishment for conspiracy shall not exceed that authorized for misdemeanor).Majority of states now reject this grading approach and fix punishment for conspiracy at some term less than that provided for object crime.About a third of the states (following MPC, see MPC 5.05(1)) make punishment for conspiracy same as that authorized for object crime except in most serious felonies (same as MPC treatment for attempts).Punishment for crimes actually committed. Traditionally, if the object crime was actually committed, conspirators would be punished both for the object crime and conspiracy (contra attempt / solicitation, which “merge” with other crimes).MPC rejects this (see 1.07(1)(b)): D may not be convicted of more than one offense if one offense consists only of conspiracy or other form of preparation to commit the other. See p. 674.Federal Sentencing Guidelines effectively rejects separate punishment by grouping conspiracy and object offenses together for purpose of calculations.Mens ReaEach member of the conspiracy must have specific intent for the furtherance of the underlying crime. The crux of the issue is whether it is possible to infer intent to commit crime from actor’s actions that furthered the crime.MPC Formulation5.03(1):Conspiracy when acting with purpose of promoting commissionagrees with other person that one or more of them will engage in conduct which constitutes crime or an attempt or solicitation;agrees to aid such other person in planning or commission of crime.5.03(5): No person may be convicted of conspiracy other than 1st/2nd degree felony w/o overt act.People v. Lauria (Cal. App. 1967, p. 695) (call-girl / answering service case; three-part test to determine whether can infer specific intent from actions of a furnisher of good: (1) actor had stake in the venture, (2) if there is no legitimate use / reason for conduct, and (3) volume of activity disproportionate w/any legitimate demand).“The intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal activity connected with the use of his supplies may be established by (1) direct evidence that he intends to participate, or (2) through an inference that he intends to participate based on, (a) his special interest in the activity, or (b) the aggravated nature of the crime itself.”Knowledge of illegal use is by itself insufficient to establish mens rea.But the opinion seems to imply that knowledge alone is sufficient mens rea for conspiracy when the object crime is a felon. (Or at least leaves the question open.)Model Penal Code requires purpose for both conspiracy and accomplice liability. 2.06 (3)(a); 5.03(1). Most states likewise require purpose in conspiracy cases, even when the object crime is a serious felony. See pp. 700-701 for examples.Consequences of Conspiracy ChargeJoinder: parties in conspiracy can be tried together.Hearsay: any utterance in furtherance of objectives of ongoing conspiracy is admissible as evidence against others. Use hearsay testimony in evidentiary hearing to demonstrate conspiracy, which then allows hearsay testimony into trial to prove conspiracy and underlying crime.See Krulewitch v. U.S. (S.Ct. 1949) (hearsay testimony exception does not extend to communication after the termination of conspiracy; arrest terminates conspiracy).S.Ct. trying to limit any expanding of exception. Concerned about slippery slope that anything done after initially entering conspiracy could be construed as “furthering” it.Vicarious liability; the Pinkerton ruleSplit between MPC and federal courts for liability for unintended crimes committed in the scope of, relation to, or furtherance of the conspiracy.MPC denies vicarious liability of co-conspirators, insisting only actors w/culpability for the crime should be punished for it. (Requires accomplice liability conditions.)Federal courts follow Pinkerton rule (which parallels Luparello) whereby conspirators can be held liable for reasonably foreseeable crimes of their co-conspirators.Pinkerton v. U.S. (S.Ct. 1946, p. 677) (co-conspirators are liable for reasonably foreseeable crimes of their co-conspirators within the scope of the conspiracy / in furtherance of the conspiracy).Extends vicarious liability beyond traditional accomplice liability b/c co-conspirator does not have to do any aiding or abetting for liability to attach.See notes pp. 681-683 for arguments pro/con Pinkerton.Note that Pinkerton liability is not retroactive; so, e.g., a person joining an ongoing conspiracy does not become liable for prior substantive offenses (though liable for prior conspiracy).U.S. v. Alvarez (11th Cir. 1985, p. 685) (murder was reasonably foreseeable consequence of drug conspiracy, and conspiracy murder liability properly attaches to drug dealers even though murder was not w/in originally intended scope of conspiracy, but occurred as result of unintended turn of event b/c dealers were more than “minor” participants in drug conspiracy and had knowledge that deadly force might be involved).Court suggests that Pinkerton liability may be negated by a D’s minor role in a conspiracy or lack of knowledge about the unintended substantive offense. Other course have developed this doctrine further (e.g., CT S.Ct. suggested that Pinkerton may only apply when D was “leader” of conspiracy, though later likely limited, see p. 687).BURDEN OF PROOF: REASONABLE DOUBT First arises at close of prosecution’s case – if judge decides evidence raises reasonable doubt about guilt as a matter of law, judge must direct a verdict for defendant. If not, same problem may be presented gain at the close of all evidence; again for jurors at deliberation; again on appeal.Reasonable doubt “as a matter of law.” Trial judge must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind may fairly conclude guilt beyond a reasonable doubt. If either reasonable doubt or no reasonable doubt is fairly possible, he must let the jury decide the matter.Explaining reasonable doubt – problems with jury instructions. Empirical studies confirm jurors convict more readily under preponderance standard rather than reasonable doubt standard.Conviction must be reversed for error in explaining reasonable doubt standard to jury, even when appellate court does not find evidence insufficient as matter of law.McCullough v. State – conviction reversed where judge explained beyond reasonable doubt as 7.5 out of 10 (where preponderance = 5) – concept of RD inherently qualitative, attempt to quantify more likely to confuse than clarify.Cage v. Louisiana – explained using terms like “grave uncertainty,” “substantial doubt,” and “moral certainty” – Supreme Court reversed, holding such references improperly diluted the Winship standard.Traditionally acceptable instructions: “state of case which, after consideration of all evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.” (CA Penal Code; drawn verbatim from 1850 MA jury instruction, which explains “moral certainty” and “moral evidence” references.)Sandoval v. California (upheld constitutionality of above instruction. Supreme Court conceded terminology not modern lexicon but concluded instruction as a whole gave sufficient content.) Several concurring justices urge states to choose more comprehensible modern language.Reasonable doubt difficult to explain – some courts consider it preferable to give no jury explanation at all.Upheld in United States v. Walton by Fourth Circuit.Burden of production v. burden of persuasionProduction = coming forward with enough evidence to put a certain fact at issue; persuasion = convincing the trier of fact. With most elements of crimes, prosecution bears both burdens – must introduce enough evidence to put facts at issue and to persuade beyond reasonable belief.However, state law may allocate burden of production to defense but burden of persuasion to prosecution (e.g., for duress = defendant must give some evidence to raise it, but then prosecution must prove absence of duress beyond reasonable doubt.)When defendant bears burden of production on an issue, the issue is commonly referred to as an affirmative defense.Under MPC, defendant generally bears only the burden of production – once affirmative defense raised, prosecution must disprove beyond reasonable doubt. (MPC 1.12(2)(a).)How much evidence is necessary to satisfy burden of production? Most courts require sufficient to raise at least a reasonable doubt on the matter. (See Frazier v. Weatherholtz.)In re Winship (S.Ct. 1970, p. 29) (S.Ct. reversed conviction of juvenile charged w/larceny where juvenile court found guilty by preponderance of evidence and ordered him confined at training school; DP protects accused against conviction except upon proof BRD of every fact necessary to constitute crime he is charged with; necessary to maintain confidence and respect in application of criminal law; social disutility of convicting innocent person always far worse than that of releasing guilty person).Allocating the Burden of ProofMullaney v. Wilbur (S.Ct. 1975, p. 33) (involved Maine homicide statute that defined murder as killing with malice aforethought. Jury instructed any intentional killing would involve “malice aforethought” and constitute murder, unless defendant could rebut malice aforethought by proving, by preponderance of evidence, that he acted on provocation. Supreme Court reversed – due process rights violated where defendant had burden to prove provocation. Because provocation negated the “malice aforethought” required to convict for murder under statute, this violates Winship requirement that state prove beyond reasonable doubt every fact necessary to constitute crime. However, left room for argument of why the absence of provocation was a necessary fact.)Patterson v. New York (S.Ct. 1977, p. 33) (Patterson charged with second-degree murder; under NY law, malice aforethought was not an element of the crime; also, person accused of murder may raise affirmative defense that he acted under provocation. Jury was instructed that defendant had burden of proving his affirmative defense by preponderance of evidence (if succeeds = manslaughter), and found murder. S.Ct. affirmed. Death, intent to kill, causation are all facts State is required to prove to convict for murder; DP does not require NY to choose between abandoning affirmative defenses or undertaking to disprove their existence to convict of a crime it may otherwise punish).Seems like this may permit legislatures to reallocate burdens of proof by labeling as affirmative defenses some elements of crimes now defined – but there are obviously constitutional limits.Does not invalidate Mullaney – there, malice, in the sense of absence of provocation, was part of definition of that crime, yet was presumed and could be rebutted by defendant only; here, nothing was presumed or implied against Patterson.Majority assumed NY could eliminate provocation altogether. “Greater power should include the lesser.” Under this view, states would be free to reallocate burdens of persuasion relating to any fact that is not a constitutionally mandated prerequisite to just punishment. Conversely, states would be required to prove a fact beyond a reasonable doubt if punishment would be impermissible as applied to conduct not involving that fact.When state considers a gratuitous defense, a constitutional insistence on proof beyond a reasonable doubt does not make sense.However, others argue due process clause should be construed to require proof beyond reasonable doubt for any fact that makes significant difference in authorized range of punishment.Non-gratuitous defensesShould state have freedom to shift burdens extend to non-gratuitous defenses? Consider insanity defense – Supreme Court never directly ruled if it’s constitutionally mandated. Yet in Rivera v. Delaware, Court summarily dismissed challenge to Delaware law that required defendant to bear the burden of proving insanity. Does that mean, by implication, that states can eliminate the insanity defense completely?Martin v. Ohio – defendant, battered wife victim, shot husband in claimed self-defense. Charged and convicted for aggravated murder (Ohio – killing purposely and with prior calculation and design.) Jury instructed prosecution must prove BRD all elements of aggravated murder, but defendant required to prove by preponderance her self-defense claim. Supreme Court upheld conviction – no shifting to defendant of any crime elements.Four dissenters argue that self-defense claim (imminently necessary) was inherently inconsistent with prosecution claim of killing “by prior calculation and design.” Sentencing enhancements and BRD (p. 40)Usually judge determines at sentencing stage whether special circumstances exist (e.g., firearm used, etc.) and imposes sentence accordingly. Judge not required to find BRD every fact he considers in fixing sentence.McMillan v. Pennsylvania – state statute imposed mandatory minimum if judge found at sentencing by preponderance defendant possessed firearm at commission of offense. Supreme Court held this was fine because the fact in question (possession of weapon) did not increase the maximum sentence judge was authorized to impose – i.e., he could have imposed that same sentence even without statute.Makes it easier to comply with proof BRD – facts that dictate a large increase in punishment can be established by preponderance. However, this is available only when facts at issue are only sentencing factors rather than offense elements.Apprendi v. New Jersey – Supreme Court clarified states do not have unlimited discretion to characterize facts as sentencing considerations rather than elements of offense (here, any fact that increases maximum penalty applicable to offense is an “element” of offense, which therefore must be proven BRD).Legislature can arguably set high maximum sentence for offense, so that judges remain within discretion.DISCRETION AND THE CRIMINAL JUSTICE SYSTEMDecision to ChargeImportance of discretion increases as jury nullification importance decreases. Factors: new crimes that allow serious charges for what used to be simple felonies (e.g., 3-strike statutes, money laundering, and RICO); authorized sentences are increasingly severe; harsh mandatory offenses more common.Rules of professional responsibility instruct prosecutors to charge only when they can establish probable cause; typically, they will only file if have evidence beyond reasonable doubt.However, frequently do not charge because 1) limitations in available enforcement resources; 2) need to individualize justice; 3) overcriminalization – legislation expanding criminal law and raising penalties is easily enacted but often impossible to repeal. The laws presuppose discretion – may be intended as options for unusual situations, symbolic expressions, etc.ABA recommends factors to consider: strength of evidence, harm caused, disproportion between punishment and gravity of crime, defendant’s willingness to cooperate in prosecution of others, and likelihood of prosecution in other jurisdiction (last significant for federal v. state prosecutions). All are open-ended, nonbinding.Internal review: some prosecutors’ offices ostensibly have review, but these are often perfunctory.Special prosecutorsEthics in Government Act allows a panel of three federal judges to appoint a special prosecutor (“Independent Counsel”) to pursue charges against high officials of the federal executive branch, which guarantees against interference or control by AG. Supreme Court upheld this in Morrison v. Olson (did not violate separation of powers principles because AG retained power to remove independent counsel for “good cause”).Act lapsed in 1999. Currently no federal statute requiring appointment of special prosecutor in high-profile political cases. AG still has discretion to appoint special prosecutor, though.Many states have laws to appoint special prosecutors when local district attorney has conflict of interest, etc.Prosecutions initiated by judges and victimsTypically doesn’t fly; e.g., Wisconsin Supreme Court struck down statute that provided judges with power to direct prosecution upon probable cause – violation of state constitution separation of powers. (State ex rel. Unnamed Petitioners v. Connors.)Private prosecution: likewise violates separation of powers.Contrast with England / many continental Europe countries, where private person can initiate criminal prosecution.Every US jurisdiction grants victim right to be kept informed about the course of the investigation and discuss case with prosecutor; but neither federal nor state statutes give the crime victim any right to direct prosecution.Prosecution in Europe See pp. 1016-1019; fairly detailed, but Meltzer usually doesn’t do too much international stuff. See if it comes up in class.CasesLinda R.S. v. Richard D. (S.Ct. 1973, p. 1009)Summary: Appellant, mother of illegitimate child, challenged enforcement of Texas penal statute that provides for jail time for any parent who deserts etc. child, arguing that DA refused to take action because in his view, fathers of illegitimate children were not w/in scope of statute. Below court dismissed for lack of standing.Ruling: Dismissal affirmed. Appellant failed to allege sufficient nexus between her injury and government action; made no showing that failure to secure child support results from nonenforcement. If appellant were granted relief, it would only result in jailing of the father; that prospect of prosecution will result in payment is speculative and not enough.Dissent: Disagrees that coercive effect of sanctions will not result in payment: the idea behind imposing jail time is to coerce parents to fulfill their support obligations.Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (1973), p. 1011Summary: Mandamus sought by plaintiff inmates who allege they were maliciously harmed, killed, etc. during retaking of the prison by guards; relief sought against state and federal Attorney General to compel prosecution of guards. Below court granted motions to dismiss to federal and state defendants.Ruling: Re: United States Attorney: federal mandamus available only to compel officer to perform a duty owed to plaintiff, 28 USC 1361, and courts have uniformly refrained from overturning at the instance of a private person discretionary decisions not to prosecute, even in cases such as here where serious questions are raised as to protection of civil rights and physical security of victims. This is primarily due to separation of powers concerns – typically, when courts review executive acts, there is a full record, etc. Here, record is grand jury investigation and / or non-record factors. Also unclear what the judiciary role of supervision would be exactly. Re: state defendants – NY law grants prosecutors discretion that is not subject to review in state courts.United States v. Armstrong, 517 U.S. 456 (1996), p. 1019Summary: Appeal re: district court discovery order. Order was issued for government to provide data concerning federal charges brought for crack cocaine and firearm possession, with details about race. (Respondents alleged they were selected for federal prosecution because they were black; provided affidavit that showed that of 24 federal drug cases in 1991, every defendant was black.Ruling: Reversed. A selective-prosecution claim asks courts to exercise judicial power over a special province of the Executive (AG and US Attorneys). Strong judicial deference is presumed. Claimant must demonstrate that federal prosecution policy had a discriminatory effect and that it was motivated by a discriminatory purpose; to establish discriminatory effect, claimant must show that similarly situated individuals of a different race were not prosecuted. This required threshold adequately balances govt’s interest in vigorous prosecution and defendant’s interest in avoiding selective prosecution. Here, respondents’ study did not constitute evidence – anecdotal at best.Dissent: Extraordinary severity of imposed penalties and the troubling racial patterns of enforcement give rise to a special concern about the fairness of charging practices for crack offenses.Notes: Professor Karlan notes that the Court generally rejects stereotypes whether or not they are true, because the very act of stereotyping is constitutionally illegitimate. Here, however, it does precisely the opposite. In no other area is the Court prepared to assume based on ambiguous statistics that blacks and whites differ in a legally cognizable way.Plea BargainingBrady v. United States, 397 U.S. 742 (1970), p. 1025 (S.Ct. formally accepts p-b)Summary: Petitioner was facing the death penalty in connection with his kidnapping charge and switched his plea to guilty from not guilty; argues plea was not voluntary because he faced the death penalty if he exercised his right to a jury trial.Ruling: Conviction affirmed. Waivers of constitutional rights must be voluntary and must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences – no problem on both counts. P was represented by competent counsel. State may not produce a plea by actual / threatened physical harm or mental coercion, but this did not happen here; also no evidence that Brady could not have rationally weighed advantages. Plea-bargaining creates a mutuality of advantage to defendants and prosecutors – for d’s, exposure is reduced, correctional process can start, and practical burdens of trial eliminated; for state, prompt punishment, and conservation of judicial / prosecutorial resources. Record supports the conclusion that Brady’s plea was intelligently made.Notes after BradyFor guilty plea to be valid, it must be the product of a knowing and intelligent choice, and must be voluntary in the sense that it does not result from any threats or promises other than those involved in the plea agreement. Trial judge typically explains to defendant the elements of the offense, the potential sentence, and the principal rights being waived (privilege against self-incrimination, right to jury trial, and right to confront accusers).Extent – at time of Brady, 70-85% of felony convictions were obtained by guilty plea; now – about 90%, and 95% in federal courts.Santobello v. New York – if prosecution fails to honor commitments made to defendant in exchange for guilty plea, defendant must be able to withdraw the plea. (Prosecutor can get around this by promising to recommend a particular sentence – then, as long as he recommends, if the judge doesn’t adopt, state is still fine.)Trial penalty imposed on defendants substantial – sentences after jury trial are on average 3x longer than sentences imposed in comparable cases after a plea.PA approach – defendants receive no inducement to plead guilty, but gain sentencing concessions by waiving right to jury and accepting a bench trial (still retain right to confront, to cross-examine, to appeal, etc.) – nearly all American jurisdictions reject this approach, however.Justification for different sentences for same crime if plea-bargained or not? Judges – “He takes some of my time; I take some of his.”Bargaining argument – D doesn’t lose his constitutional rights; rather bargains them away – worth less than the leniency he gains by “selling” them to prosecution.D trading right to force a trial to prosecutor’s right to seek the maximum sentence.Structural problems – public and defendant act through agents (prosecutor and attorney) in arriving at plea-bargaining. Problem because they may have individual interests that run counter to that of the public and / or the defendant.Bordenkircher v. Hayes (S.Ct. 1978, p. 1036)Summary: D indicted for uttering forged instrument for $80, punishable 2-10 years prison. Prosecutor offered recommend 5-year sentence for guilty plea, or otherwise would seek indictment under Habitual Criminal Act (mandatory life imprisonment). Pled not guilty, obtained indictment, found guilty. CoA reversed b/c prosecutor conduct violated principles protecting Ds from vindictive exercise of prosecutorial discretion. Cert to S.Ct.Ruling: Reversed, life imprisonment stands. As long as D is free to accept / reject prosecutor offer, this is fine. Mutuality of advantages of plea bargaining to Ds and prosecutors. If prosecutor has probable cause, he can charge whatever legal, so long as selection not deliberately based on e.g. race, religion. Desire by prosecutor to induce guilty plea is not an unjustifiable standard. Contrary ruling would invite subterfuge by prosecutors.Dissent 1: Encourages prosecutors to bring greater charge initially and only then to bargain. More difficult bargain b/c bargaining against greater charge. Preferable to hold prosecution to the charge it was originally content to bring.Dissent 2: Deference would be appropriate if initial charge was mandatory life; but here, prosecutor initially deemed it unreasonable to put D in jeopardy of life imprisonment. Implementation of strategy solely to deter exercise of constitutional right to trial not constitutionally permitted exercise of discretion.Notes after HayesLynch (on working as assistant DA): no official rules re: plea-bargaining; prosecutors had almost complete discretion; would ignore guidelines entirely or relabel crime as something else to make it fit into sentence guideline they wanted; often would decide sentence then find crime to produce correct sentence; snap decisions; presentence investigators grossly underutilized (contra judges).Common in DA offices, but not pattern in U.S. Attys. office – require written pleas and review; but still review often cursory.See Lynch 1040-1043 re: white-collar criminal proceedings, quasi-judicial supervision; administrative not adversarial; prosecutors best when quasi-judicial decisionmakers on fairness rather than partisan negotiators for state.Argues for greater formality of procedure to enhance fairness of p-b process; institutional checks on prosecutors (see Europe).SentencingSentencing systems largely identical in fed and state until 1970sToday, “old approach” i.e. no guidelines in more than half the states.Williams v. New York, 337 U.S. 2412 (1949), p. 1045Summary: Appellant convicted of murder in first degree. Judge imposed death sentence despite unanimous jury recommendation of life sentence, based on info obtained through court’s Probation Department that appellant could not review, confront, cross-examine, etc. – largely had to do with his background, criminal history, etc. (Permitted by NY procedural policy.)Ruling: Affirmed. Courts have always have wide discretion in type and source of evidence used to determine extent of punishment. Practical reasons – sentencing judge not confined to narrow question of guilt. Move toward modern concepts individualizing punishment and away from retribution; focus on reformation and rehabilitation.Dissent: (J. Murphy) – generally agree; but in capital case as here, due process not followed were sentence counter to unanimous jury recommendation, where report not admissible at trial and not subject to examination by defendant.Notes after WilliamsDue Process and Legislative Standards in Sentencing, Note – punishment here turned on conclusions drawn by probation officers on hearsay and unproven allegations. Information highly relevant to sentencing, but probation officer must weigh evidence and judge credibility.Aside from capital cases, Williams holding is largely intact – in Gardner v. Florida, judge relying on confidential presentence report sentenced to death over life imprisonment jury recommendation; plurality of S. Court found procedure constitutionally defective. Most states now allow felony defendants to review presentence report, however.Federal practice – less disclosure; FRCP 32(d) guarantees unrestricted access to “presentence report” but allows judge to receive info in other documents not available to defense, and defendant receives only trial judge’s summary of report. Defendant may comment on report and at court’s discretion offer evidence to rebut – but prosecution only need to prove by preponderance of evidence.Fatico hearing – (Second Circuit) – evidentiary hearing, preserving confidentiality of FBI information but allowing FBI agents to report hearsay if government offered significant corroboration.Allen – rehabilitative ideal debased in practice. Measures subjecting individuals to substantial and involuntary deprivation of liberty contain an inescapable punitive element.Frankel – individualized justice must be justice according to law – evidence now conclusive that judges mete out widely divergent sentences where divergences are explainable only by variations among judges.Task Force on Criminal Sentencing – vagaries in sentencing seriously affected the deterrent value of criminal sanctions.United States v. Jackson, 835 F.2d 1195 (1987), p. 112Summary: Jackson robbed a bank 30 minutes after being release from prison on conviction of two other bank robberies. Convicted for life without parole.Ruling: (Easterbrook.) Affirmed – selection of sentence was within statutory range and is essentially free of appellate review. Statute reflects judgment that career criminals who persist in possessing weapons should be dealt with severely. If too harsh, there’s always clemency.Concurrence: (Posner.) Thinks sentence too harsh, though authorized. Argues that extremely unlikely Jackson would persist in robbing banks if convicted for 25-30 years with no parole (he’s now 35). As for deterrence – speculative. Robbing banks is a losers’ game given the arrest and conviction rates. Persons who would rob a bank in light of a 20-year sentence with no parole unlikely to be deterred by life imprisonment. Sentencing ReformMandatory minimums – Congress first introduced for drugs in 1956, but concluded they were a failure and repealed virtually all in 1970. Reenacted in 1984, enacted additional and stiffened existing every two years until well into the 1990s.Usually a misnomer – truly mandatory only when they require filing of the most serious charge and prohibit bargaining.Far more common are those that require a given sentence only in the event of conviction on a given charge – these are discretionary minimums.States – several states have created sentencing commissions that draft guidelines that judges are required or encouraged to follow in sentencing. Administrative agencies insulated from political pressures. As of 2005, five states have presumptively binding recommendations; eight states have recommendations that are advisory or purely voluntary.Federal – in 1984, Congress abolished parole for federal criminal convictions and created US Sentencing Commission to promulgate sentencing guidelines. Characteristics – narrow range of authorized sentences (no more than 25% spread between min and max). Judges required to impose sentence within range except under restricted conditions. (See USC 3553.)Bowman – “Failure of the Federal Sentencing Guidelines” – Sentencing Commission created to 1) organize substantive federal criminal law by experts; 2) monitor, study, and modify sentencing rules over time; 3) insulate from political pressure. (See generally for details about fed guidelines – pp. 1054-58.)Transparency, disparity / or not, abandons rehabilitative / medical model of punishment, truth in sentencing, must serve at least 85% of term.Benefits of fed guidelines – fetters discretion because narrow prescribed range and mandatory; retains flexibility because judge can depart when unusual circumstances exist; appellate review available to both sides; governing principles visible and can be tested and refined through common law process.But – if sentencing wholly predictable and uniform, aren’t we getting rid of individualization and variation of moral condemnation as to particular offenders?But – soft factors (as opposed to easily quantifiable e.g. dollar losses and drug quantities) – temper, reputation, etc. – almost inevitably must be allowed less influence to preserve uniformity; but excluding them creates a false uniformity where offenders receive identical sentences though their circumstances are not truly identical.But – visibility dangerous? Studies confirm that when punishment are made highly visible and easily understandable, political process generates strong pressure to push levels upward – particularly marked with federal guidelines.United States v. Thompson, 190 F.Supp. 2d 138 (2002), p. 1061Summary: Crack cocaine distributor D pled guilty, sentenced to 60 months (17 less than guidelines) b/c of extraordinary family circumstances as compared to all Ds convicted of crack distribution in MA. Fifth Circuit vacated to remand for resentencing b/c need to compare any D to all Ds, not just similarly situated. Judge did so; still finds extraordinary.See Pereira: extraordinary contributions to family / community can only justify downward departure when D’s incarceration will inflict extraordinary harm on third parties.For capital sentencing, S.Ct. held states constitutionally required to allow sentencing authority to consider D’s good behavior after arrest. Skipper v. South Carolina. Why not in noncapital?Blakely v. Washington (S.Ct. 2004, p. 1064) Need jury and BRD if departing upward from max standardSummary: P charged w/1st-degree kidnapping, reduced to 2nd-degree KN after plea bargain (max 10 years). State recommended 49-53 months; judge imposed 90 b/c P acted w/deliberate cruelty, statutorily-enumerated ground for upward departure in domestic violence cases. P objected, judge conducted bench hearing, findings of fact, adhered to determination. P appeals b/c deprived of constitutional right to have jury determine BRD all facts legally essential to sentence. Cert.Ruling: See Apprendi – other than fact of prior conviction, any fact that increases penalty beyond prescribed statutory max must be submitted to jury and proved BRD. State contends not violated b/c statutory max is 10 years. But under Apprendi, judge could not have imposed 90 month sentence solely on basis of facts admitted in guilty plea b/c above standard range of 49-53 months. Sentence invalid.NotesAfter Blakeley, a number of state courts required jury finding BRD for facts necessary to trigger higher sentencing range.In 2005, S.Ct. held federal sentencing guidelines unconstitutional.Remedy: Breyer – suggests (1) guidelines advisory rather than mandatory; (2) allowing CoA to set aside sentencing decision whether w/in range or not only if found “unreasonable.” (This was majority – 5.) Stevens – require juries to find BRD any fact other than prior record necessary to support increase in guideline range.S.Ct. held in 2002 that although jury must find facts necessary to increase max term of sentence, right to jury trial does not apply to facts that increase only the minimum term.ALLOCATING PUNISHMENTConstitutional Limits on SentenceRobinson v. California (S.Ct. 1962, p. 911)Summary: CA statute makes criminal offense to be “addicted to the use of narcotics.” Reversed.Ruling: Reversed. Cannot make status criminal offense – cruel and unusual punishment. Sick individual who state may confine, but prison too harsh (stigma). Cannot create form of continuous criminal liability that fails to require any criminal act actually be performed w/in jurisdiction.Powell v. Texas (S.Ct. 1968, p. 914)Summary: D charged w/being found in state of intoxication in public place in violation of penal code. Judge ruled that chronic alcoholism no defense. Expert testimony: conflicting, no exact definition, but P not able to control behavior and has uncontrollable compulsion to drink; but says P voluntarily takes first drink.Ruling: Conviction affirmed. No agreement about what alcoholism is or whether it is disease. Contradictory expert testimony b/c says P compelled to drink but also that first drink voluntary. Robinson does not apply b/c P was convicted not for status but for being drunk in public. Notions of personal accountability and federalism: unable to conclude that P really unable to control himself and really cannot be deterred from public intoxication. Dissent: Robinson says cannot apply criminal penalties to person for being in condition he is powerless to change. D accused of being in condition he had no capacity to change or avoid.State ex. rel. Harper v. Zegeer (W. Va. 1982, p. 920)Summary: Criminally punishing alcoholics for being publicly drunk violates C&U. Most states view alcoholism as disease. If arresting officer knows drunk had previous history, has duty to bring these facts to judge or to make application for involuntary hospitalization for examination of accused: if chronic alcoholic, give all procedural safeguards that surround those w/mental disabilities.ProportionalityMPC 1.02: purposes include to differentiate on reasonable grounds between serious and minor offenses and safeguard offenses against excessive, disproportionate or arbitrary punishment.(See p. 168 for NY / CA similar formulations.)Bentham: Value of punishment must not be less than that sufficient to outweigh profit of crime (otherwise, no deterrence). When two offenses in competition, punishment for greater must be sufficient to induce a man to prefer the less. Punishment should be adjusted in such manner to each particular offense that for every part of mischief there may be a motive to restrain offender from acting (e.g., stealing $10 v. $100). Punishment ought never to be more than what is necessary to bring in conformity with above rules.As certainty of approximation decreases, punishment must increase to outweigh value.Punishment must be further increased in magnitude in proportion as it falls short in points of proximity – profit of crime commonly greater than punishment.Gross: requirement that punishment not be disproportionately great dictated by same principle that does not allow punishment of innocent (b/c any above punishment is punishment w/out guilt).Hart (deterrent theory and proportionality): one crime unchecked may cause many later, so greater severity may be used in its repression that in that of second crime (utilitarian). Temptation to commit particular crime may be greater than another, so more severe penalty needed. Commission of one crime may be sign of more dangerous character needing longer sentence.Ewing: need proportionality b/c otherwise penal law discredited. Penal laws affect morality, so they ought to help not hinder. If man severely punished for slight offense, people more likely to sympathize w/him and forget about his crime instead of focusing on his culpability. Primary objective of punishment is to lead both offender and others to realize the badness of the act punished. Punishment as language intended to express moral disapproval.Stephen: Need to keep in mind both retributive purposes (where every circumstance that aggravates / extenuates wickedness of act changes punishment) and deterrent purposes.Hart: simple utilitarian grounds for proportionality: otherwise may confuse moral judgments and/or bring law into disrepute. Justice/fairness require morally distinguishable offenses to be treated differently and like alike.Ewing v. California (S.Ct. 2003, p. 172)Summary: Whether Eighth Am. prohibits CA from sentencing to life under three strikes law.Ruling: Affirmed. Reflects shift in sentencing policies toward incapacitating and deterring repeat offenders. Statistics show released repeat property offenders have higher recidivism. After 3-strikes passed, recidivism rate dropped by 25%. Enough that CA has reasonable basis to believe system advances goals of its criminal justice system. State has interest in dealing in harsher manner those who by repeated criminal acts show they are simply incapable of conforming to norms of society.Scalia concurring: proportionality inherently tied to retribution.Thomas c: C&U contains no proportionality principle.Stevens dissent: proportionality review required by Eight Am. (do it for fines and bail, why not for imprisonment?)Breyer dissent: if courts properly respect legislative judgment, rejecting sentences as grossly disproportionate will be very rare. Shoplifting not serious enough – frequency not enough. CA murder statute imposes 25 years – disproportionate; sentencing guidelines would not exceed 18 months. Only three other states have even remotely similar statutes. Sentence virtually unique in its harshness. Object of statute is to reduce serious and violent crime, not this.Lockyer v. Andrade (S.Ct. 2003, p. 178) decided w/Ewing, another 3-strike case. Upheld. Souter: if this is not grossly disproportionate, I don’t know what is.Judicial role (p. 180): should proportionality be viewed as req that punishment be commensurate w/culpability gravity of crime, or should prospect of large deterrence / incapacitation benefits suffice? Should judgment be made by legislature or courts?Gross disproportionality after Ewing: sometimes still struck down. 25-year-to-life struck when violation was harmless technical violation of failing to update sex offender status; 52-year w/out parole struck down for 20-year-old male for voluntary sex w/underage girl. Cf. upholding 200-years w/out parole on first offender for possession of 20 images of child porn he downloaded (consecutive mandatory minimum that must be charged separately and terms be served fully) – more serious than virtually any crime in state.Jurisdictions that hold to the agency theory admit only deaths caused by the agents of the crime. Jurisdictions that use the proximate cause theory include any death, even if caused by a bystander or the police, provided that it meets one of several proximate cause tests to determine if the chain of events between the felony and the death was short enough to have legally caused the death. ................
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