DEFINING CRIMINAL CONDUCT
GENERAL PRINCIPLES
I. THEORIES OF CRIMINAL PUNISHMENT
A. Utilitarianism
1. Deterrence
The utilitarian theory is essentially one of deterrence – punishment is justifiable if, but only if, it is expected to result in a reduction of crime. Punishment must be proportional to the crime, i.e., that punishment be inflicted in the amount required (but no more than is required) to satisfy utilitarian crime prevention goals.
Utilitarians consider the effect of a form of punishment in terms of both general deterrence and specific (or individual) deterrence. When the goal is general deterrence, punishment is imposed in order to dissuade the community at large to forego criminal conduct in the future. When the goal is specific deterrence, punishment is meant to deter future misconduct by an individual defendant by both preventing him from committing crimes against society during the period of his incarceration (incapacitation), and reinforcing to him the consequences of future crimes (intimidation).
2. Rehabilitation
Another form of utilitarianism is rehabilitation (or reform). Examples of rehabilitative “punishment” include: psychiatric care, therapy for drug addiction, or academic or vocational training.
B. Retributivism
Under a retributive theory of penal law, a convicted defendant is punished simply because he deserves it. There is no exterior motive such as deterring others from crime or protecting society – here the goal is to make the defendant suffer in order to pay for his crime. Retributive theory assigns punishment on a proportional basis so that crimes that cause greater harm or are committed with a higher degree of culpability (e.g, intentional versus negligent) receive more severe punishment than lesser criminal activity.
C. Denunciation (Expressive Theory)
The denunciation theory – which holds that punishment is justified as a means of expressing society’s condemnation of a crime – has both utilitarian and retributive components. Under a utilitarian theory, denunciation is desirable because it educates individuals that the community considers specific conduct improper, channels community anger away from personal vengeance, and serves to maintain social cohesion. Under a retributive theory, denunciation serves to punish the defendant by stigmatizing him.
II SOURCES OF CRIMINAL LAW
A. Common Law – Common law is judge-made law. Even when superceded by statutory law, common law may serve to interpret ambiguous statutory terms.
B. Criminal Statutes
Today, statutory law is the prevailing source of criminal law and essentially has replaced common law. Although most states have abolished common law crimes, a few have enacted “reception” statutes, expressly recognizing common law offenses when statutory law does not provide a punishment for such offense. In effect, such a statute “receives” the common law offenses in place at the time of the statute’s enactment.
Generally speaking, statutory law classifies a crime as a felony or a misdemeanor, both of which may be subdivided into degrees. A felony is punishable by death or imprisonment in a state or federal prison. The maximum punishment for a misdemeanor is a monetary fine, incarceration in a local jail, or both. Some jurisdictions also have an additional classification of “violation” or “infraction” for which only a monetary fine is authorized.
C. Model Penal Code
Although the Code – published by the American Law Institute – is not the law in any jurisdiction, it stimulated adoption of revised penal codes in at least thirty-seven states. Although some state legislatures have adopted only small portions of the Model Code as their own, other jurisdictions (including New Jersey, New York, Pennsylvania, and Oregon) have enacted many of its provisions. Courts, on their own, sometimes turn to the Model Code and its supporting commentaries for guidance in interpreting non-Code criminal statutes.
III CONSTITUTIONAL LIMITATIONS ON CRIMINAL LAW
Various provisions of the United States Constitution impose limits on federal and state legislative action. A state legislature is also limited by its own state constitution, which may place greater restrictions on it than does the federal Constitution.
A. Limits on Federal Action
The “Bill of Rights” restricts the power of the federal government in its relationship to individuals.
B. Limits on State Action
The Fourteenth Amendment to the United States Constitution imposes limits on state government. The 14th Amendment:
1) prohibits states from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States”
2) “deprive any person of life, liberty, or property without due process of the law;” or
3) “deny to any person within its jurisdiction the equal protection of the laws.”
IV LEGALITY
A. Common Law
A person may not be punished unless his conduct was defined as criminal at the time of commission of the offense. This prohibition on retroactive criminal lawmaking constitutes the essence of the principle of legality.
There are three interrelated corollaries to the legality principle:
(1) Criminal statutes should be understandable to reasonable law-abiding persons. A criminal statute must give “sufficient warning to men of common intelligence as to what conduct is unlawful.” A person is denied due process of law if he is convicted and punished for violation of a statute that lacks such clarity.
(2) Criminal statutes should not delegate basic policy matters to police officers, judges, and juries for resolution on an ad hoc and subjective basis.
(3) Judicial interpretation of ambiguous statutes should “be biased in favor of the accused” (the lenity doctrine).
B. Model Code
The Model Penal Code does not recognize the lenity principle. Section 1.02(3) requires instead that ambiguities be resolved in a manner that furthers the general purposes of the Code and the specific provision at issue.
ELEMENTS OF JUST PUNISHMENT
I. CULPABILITY
A. Actus Reus
1. Overt and Voluntary Conduct
(i) Distinguishing Between Voluntary and Involuntary Acts
(a) Habit
(b) Possession
(c) Hypnosis
(d) Somnambulism
(ii) Nonactions vs. Excused Actions
2. Omissions
(i) Common Law
(ii) Common Law Exceptions to the “No Duty to Act” Rule
(a) Duty Based on Status Relationship
(b) Duty Based on Contractual Obligation
(c) Duty Based on Creation of a Risk
(d) Duty Based on Voluntary Assistance
(e) Statutory Duty to Act
(f) Model Penal Code
B. Mens Rea
1. Common Law Principle and Definition
(i) “Culpability” Definition of “Mens Rea”
(ii) “Elemental” Definition of “Mens Rea”
2. Common Law Specific Mens Rea Requirements
(i) “Intentionally”
(ii) “Knowingly” or “With Knowledge”
(iii) “Wilfully”
(iv) “Negligence”
(v) “Recklessness”
(vi) Distinction Between Negligence and Recklessness
(vii) “Malice”
3. Model Penal Code
4. MPC Mens Rea Terms
(i) “Purposely”: With Desire
(ii) “Knowingly: Awareness of a Certainty
(iii) “Recklessly”: Conscious Awareness of a High Risk
(iv) Negligence: Reasonable Person Awareness of Existence of a High Risk
(v) Principles of Statutory Interpretation
(vi) General Requirement: At Least Recklessness Regarding All Elements
5. Motive
6. “General Intent” and “Specific Intent”
(i) General Intent
(a) Applicable Where No Other Requirement
(b) Proof of General Intent
(ii) Specific Intent
3. Model Penal Code
4. MPC Mens Rea Terms
(i) “Purposely”: With Desire
(ii) “Knowingly: Awareness of a Certainty
(iii) “Recklessly”: Conscious Awareness of a High Risk
(iv) Negligence: Reasonable Person Awareness of Existence of a High Risk
(v) Principles of Statutory Interpretation
(vi) General Requirement: At Least Recklessness Regarding All Elements
5. Motive
6. “General Intent” and “Specific Intent”
(i) General Intent
(a) Applicable Where No Other Requirement
(b) Proof of General Intent
(ii) Specific Intent
3. General-Intent Offenses
(i) Ordinary Approach: Reasonableness
(ii) Moral-Wrong Doctrine
(iii) Legal-Wrong Doctrine
4. Model Penal Code
(i) General Rule
(ii) Exception to the Rule
D. Mistake of Law
1. Reasonable-Reliance Doctrine (Entrapment by Estoppel)
(i) “Official Statement”
2. Exemptions to the Reasonable Reliance Doctrine
(i) Reliance on One’s Own Interpretation of the Law
(ii) Advice of Prosecutor
(iii) Advice of Private Counsel
3. Fair Notice and the Lambert Principle
(i) Common Law
(ii) Model Code
4. Ignorance or Mistake that Negates Mens Rea
(i) Common Law
(a) “Different Law” Approach
(b) Specific-Intent Offenses
(c) General-Intent Offenses
(d) Strict-Liability Offenses
(ii) Model Penal Code
E. Strict Liability
1. Factors Suggesting Strict Liability
2. Factors Suggesting No Strict Liability
3. Strict Liability Crimes
(i) Regulatory or Public Welfare Offenses
(ii) Traffic Offenses
(iii) Traditional Strict Liability Offenses
4. Policy Considerations
(i) For
(ii) Against
5. Model Penal Code
F. Vicarious Liability
ELEMENTS OF JUST PUNISHMENT
Three principles limit the distribution of punishment:
• Culpability: to safeguard conduct that is without fault from condemnation as criminal
• Legality: to give fair warning of the nature of the conduct declared to constitute an offense.
• Proportionality: to differentiate on reasonable grounds between serious and minor offenses.
I. CULPABILITY
A. Actus Reus
1. Overt and Voluntary Conduct
MPC §2.01 (1) excludes liability in the absence of a voluntary act. The theory behind excluding liability in the absence of voluntary action is that the law cannot hope to deter involuntary movement or to stimulate action that cannot be physically performed. People whose involuntary movement threaten to harm others may present a public health or safety problem; they do not present a problem of correction.
(i) Distinguishing Between Voluntary and Involuntary Acts
(a) Habit
MPC declares that a habitual action done without thought is to be treated as a voluntary action.
(b) Possession
MPC §2.01 (4) provides that possession is an act only if the person is aware she has the thing she is charged with possessing. Most courts also treat possession as requiring knowledge. A few courts hold, where the penalty is not severe, that it is sufficient that the defendant should have known.
(c) Hypnosis
MPC takes the position that the acts of a hypnotized subject are not voluntary because the person’s dependency and helplessness are too pronounced.
(d) Somnambulism
A person’s act while in a somnambulistic state is not regarded as her act at all.
(ii) Nonactions vs. Excused Actions
There are two basic situations in which human actions misfire.
• Excused Actions: where actions are done mistakenly, accidentally, compulsorily, or under duress.
• Nonactions: where actions misfire in a basic way – seizures, convulsions, reflex movements, somnambulism.
2. Omissions
(i) Common Law
Subject to a few exceptions, a person has no legal duty to act in order to prevent harm to another. The criminal law distinguishes between an act that affirmatively causes harm, and the failure of a bystander to take measures to prevent harm. Threshold questions:
• Did the person know about the duty?
• Can the person perform the duty?
• Is there a conflicting duty?
(ii) Common Law Exceptions to the “No Duty to Act” Rule
(a) Duty Based on Status Relationship
One may have a common law duty to act to prevent harm to another if he stands in a special status relationship to the person in peril. Such a relationship is usually founded on the dependence of one party to the other – e.g., a parent to his minor child – or on their interdependence – e.g., spouses.
(b) Duty Based on Contractual Obligation
A duty to act may be created by implied or express contract. E.g., a person who undertakes the care of a mentally or physically disabled person and fails to do so may be found criminally liable based on omission for his ward’s injury or death.
(c) Duty Based on Creation of a Risk
A person who harms another or places a person in jeopardy of harm, or who damages property, even if unintentionally, has a common law duty to render assistance. E.g., one who accidentally starts a house fire may be convicted of arson if he fails to extinguish the fire or take other steps to prevent or mitigate the damage. As another example, there is a split of authority regarding whether one who justifiably shoots an aggressor in self-defense has a subsequent duty to obtain medical attention for the wounded aggressor.
(d) Duty Based on Voluntary Assistance
One who voluntarily renders assistance to another already in danger has a duty to continue to provide aid, at least if the subsequent omission would put the victim in a worse position than if the defendant had not commenced the assistance at all.
(e) Statutory Duty to Act
Some duties are statutorily imposed, e.g., a driver involved in an accident must stop his car at the scene; parents must provide food and shelter to their minor children. A few states have enacted so-called “Bad Samaritan” laws, which make it an offense (usually a misdemeanor) for a person to fail to come to the aid of a person in need under specified circumstances.
(f) Model Penal Code
The Model Penal Code is consistent with the common law regarding omissions. Liability based on an omission may be found in two circumstances: (1) if the law defining the offense provides for it; or (2) if the duty to act is “otherwise imposed by law.” [MPC § 2.01(3)(b)] The latter category incorporates duties arising under civil law, such as torts or contract law
B. Mens Rea
1. Common Law Principle and Definition
Simply put, “mens rea” refers to the mental component of a criminal act. However, there is much ambiguity inherent in this term. The doctrine has been defined in two basic ways:
(i) “Culpability” Definition of “Mens Rea”
In the early development of the doctrine, many common law offenses failed to specify any mens rea. Mens rea was defined broadly in terms of moral blameworthiness or culpability. Thus, at common law and in jurisdictions that still define the doctrine broadly, it was and is sufficient to prove that the defendant acted with a general culpable state of mind, without the need to demonstrate a specific state of mind such as “intentionally,” “knowingly,” or “recklessly.”
(ii) “Elemental” Definition of “Mens Rea”
Much more prevalent today is a narrow definition of mens rea which refers to the particular mental state set out in the definition of an offense. In this sense, the specific mens rea is an element of the crime. Note that a person can be culpable in that he was morally blameworthy yet lack the requisite elemental mens rea.
2. Common Law Specific Mens Rea Requirements
(i) “Intentionally”
A person “intentionally” causes the social harm of an offense if: (1) it is his desire (i.e., his conscious object) to cause the social harm; or (2) he acts with knowledge that the social harm is virtually certain to occur as a result of his conduct.
The doctrine of “transferred intent” attributes liability to a defendant who, intending to kill (or injure) one person, accidentally kills (or injures) another person instead. The law “transfers” the defendant’s state of mind regarding the intended victim to the unintended one.
(ii) “Knowingly” or “With Knowledge”
Sometimes, knowledge of a material fact – an attendant circumstance – is a required element of an offense. A person has “knowledge” of a material fact if he is aware of the fact or he correctly believes that it exists. Most jurisdictions also permit a finding of knowledge of an attendant circumstance when the defendant is said to be guilty of “wilful blindness” or “deliberate ignorance,” i.e., if the defendant is aware of a high probability of the existence of the fact in question, and he deliberately fails to investigate in order to avoid confirmation of the fact. An instruction in this regard is sometimes called an “ostrich instruction.”
(iii) “Wilfully”
“Wilful” has been held in different jurisdictions to be synonymous with other terms, e.g., “intentional,” “an act done with a bad purpose,” “an evil motive,” or “a purpose to disobey the law.”
(iv) “Negligence”
Criminal negligence (as opposed to civil negligence) ordinarily requires a showing of a gross deviation from the standard of reasonable care. A person is criminally negligent if he takes a substantial, unjustifiable risk of causing the social harm that constitutes the offense charged.
Three factors come into play when determining whether a reasonable person would have acted as the defendant did:
(1) the gravity of harm that foreseeably would result from the defendant’s conduct;
(2) the probability of such harm occurring; and
(3) the burden to the defendant of desisting from the risky conduct.
(v) “Recklessness”
A finding of recklessness requires proof that the defendant disregarded a substantial and unjustifiable risk of which he was aware.
(vi) Distinction Between Negligence and Recklessness
The line between “criminal negligence” and “recklessness” is not drawn on the basis of the extent of the defendant’s deviation from the standard of reasonable care — the deviation is gross in both cases — but rather is founded on the defendant’s state of mind. Criminal negligence involves an objective standard – the defendant, as a reasonable person, should have been aware of the substantial and unjustifiable risk he was taking); recklessness implicates subjective fault, in that the defendant was in fact aware of the substantial and unjustifiable risk he was taking but disregarded the risk.
(vii) “Malice”
A person acts with “malice” if he intentionally or recklessly causes the social harm prohibited by the offense.
3. Model Penal Code
Model Penal Code § 2.02(1) provides that, except in the case of offenses characterized as “violations,” a person may not be convicted of an offense unless “he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.” The Code requires the prosecution to prove that the defendant committed the actus reus of the offense—in fact, each ingredient of the offense—with a culpable state of mind, as set out in the specific statute.
Thus the Code:
• eschews the “culpability” meaning of “mens rea”;
• discards the common law distinction between “general intent” and “specific intent”;
• limits mens rea to four terms: “purposely”; “knowingly”; “recklessly”; and “negligently”;
• requires application of mens rea to every material element of a crime, including affirmative defenses.
4. MPC Mens Rea Terms
(i) “Purposely”: With Desire
A person acts purposefully if it is her conscious desire to engage in certain conduct or cause a certain result. She acts purposefully with regard to attendant circumstances if she hopes that they exist, or if she believes or is aware that they exist.
(ii) “Knowingly: Awareness of a Certainty
A person acts knowingly with respect to the nature of her conduct if she is aware that her conduct is of that nature or that certain circumstances exist. She acts knowingly in regard to a result of her conduct if she is aware that it is “practically certain” that her conduct will cause the result.
(iii) “Recklessly”: Conscious Awareness of a High Risk
A person acts recklessly if she is aware of a substantial and unjustifiable risk that a certain result will occur because of her conduct or that a certain circumstance exists. The risk must be such that the actor’s conduct involves a gross deviation from the standard of conduct that a law-abiding person would observe.
(iv) Negligence: Reasonable Person Awareness of Existence of a High Risk
A person acts negligently if she should have been aware of a substantial and unjustifiable risk that a certain result would occur or that a certain circumstance would exist. The risk must be substantial and unjustifiable.
(v) Principles of Statutory Interpretation
In the MPC schema, one of the four levels of culpability must be proved in respect to each material element of the offense which may involve
• The nature of the forbidden conduct
• The attendant circumstances
• The result of the conduct
(vi) General Requirement: At Least Recklessness Regarding All Elements
The MPC provides that unless a criminal statute provides to the contrary, such a statute will interpreted to require that the defendant have acted with at least recklessness in regard to each significant element.
5. Motive
Motive refers to the defendant’s reason for perpetrating the crime in question (e.g. hatred, revenge, jealousy, etc.). Although a showing of motive may constitute reliable evidence that defendant in fact commit the crime, it is not essential to proof of criminal liability.
6. “General Intent” and “Specific Intent”
The common law distinguished between general intent and specific intent crimes. Today, most criminal statutes expressly include a mens rea term, or a particular state of mind is judicially implied.
(i) General Intent
General intent consists of the volitional doing of a prohibited act. The only state of mind required is an intent to commit the act constituting the crime.
(a) Applicable Where No Other Requirement
General intent is the mental element of any crime that does not by its terms require specific intent and for which a showing of criminal negligence is not sufficient.
(b) Proof of General Intent
General intent need not be specifically proven but can be inferred from the fact that the defendant engaged in the proscribed conduct. One who voluntarily does an act is presumed to have intended the act.
|Specific Intent |General Intent |Criminal Negligence |Malice |Strict Liability |
|Solicitation |Rape |Involuntary Manslaughter |Common Law Murder |Statutory Rape |
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|Conspiracy | | | | |
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|Attempt | | | | |
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|First Degree Premeditated | | | | |
|Murder | | | | |
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(ii) Specific Intent
The most common usage of specific intent is to identify those actions that must be done with some specified purpose in mind. The MPC equivalent would be purpose as to some objective. Without proof of that further objective there can be no conviction.
7. How to Interpret a Statute
Statute provides: “A person is guilty of arson if he causes an explosion with the purpose of destroying a building.”
First – What state of mind concerning the nonmental elements of the crime must be proved?
The nonmental elements are (1) that defendant did some act and (2) that there was an explosion.
Does the statute require a state of mind higher than recklessness? No
Does the statute provide that not even recklessness is required i.e. that negligence is sufficient? No.
Therefore reckless is adequate.
Second – Does the statute require a state of mind in regard to something that is not an element of the offense?
Yes, the defendant must have acted with the purpose of destroying a building. The building need not be destroyed. All that matters is that defendant acted with state of mind equal to purpose to destroy the building i.e. conscious desire.
C. Mistake of Fact
1. Common Law Rules
Many states follow the Model Penal Code in requiring proof of mens rea for every element of the offense. Nevertheless, the common law’s two approaches to mistakes—depending on whether the offense charged is characterized as general-intent or specific-intent—has endured.
If the crime is one of strict liability, a mistake of fact is irrelevant. Otherwise, the first step in analyzing a mistake-of-fact claim in a jurisdiction that follows common law doctrine is to determine whether the nature of the crime of which the defendant has been charge is specific-intent or general-intent.
2 Specific-Intent Offenses – A defendant is not guilty of an offense if his mistake of fact negates the specific-intent portion of the crime, i.e., if he lacks the intent designated in the definition of the offense, e.g., “knowingly,” “negligently,” “recklessly.”
3. General-Intent Offenses
(i) Ordinary Approach: Reasonableness
The ordinary rule is that a person is not guilty of a general-intent crime if his mistake of fact was reasonable, but he is guilty if his mistake was unreasonable.
(ii) Moral-Wrong Doctrine
On occasion, courts apply the “moral wrong” doctrine, under which one can make a reasonable mistake regarding an attendant circumstance and yet manifest a bad character or otherwise demonstrate worthiness of punishment. The rule is generally that there is no exculpation for mistakes where, if the facts had been as the defendant believed them to be, his conduct would still be immoral.
(iii) Legal-Wrong Doctrine
A less extreme alternative to the moral-wrong doctrine is the “legal-wrong doctrine.” That rule provides for no exculpation for mistakes where, if the facts were as the defendant thought them to be, his conduct would still be “illegal.” Often this means that a defendant possessed the mens rea for committing a lesser offense, but the actus reus was associated with a higher offense. Under this doctrine, the defendant is guilty of the higher offense in such circumstances.
4. Model Penal Code
(i) General Rule
Section 2.04(1) provides that a mistake is a defense if it negates the mental state required to establish any element of the offense.
(ii) Exception to the Rule
The defense of mistake-of-fact is not available if the defendant would be guilty of another offense, had the circumstances been as he supposed. In such cases, contrary to the common law, the Code only permits punishment at the level of the lesser offense. [MPC § 2.04(2)]
D. Mistake of Law
Under both the common law and Model Penal Code, ignorance of the law excuses no one. Nevertheless, a number of doctrines apply when a defendant is ignorant or mistaken about the law.
1. Reasonable-Reliance Doctrine (Entrapment by Estoppel)
Under both the common law and Model Penal Code, a person is excused for committing a criminal offense if he reasonably relies on an official statement of the law, later determined to be erroneous, obtained from a person or public body with responsibility for the interpretation, administration, or enforcement of the law defining the offense.
(i) “Official Statement”
For a statement of the law to be “official,” it must be contained in:
(1) a statute later declared to be invalid;
(2) a judicial decision of the highest court in the jurisdiction, later determined to be erroneous; or
(3) an official, but erroneous, interpretation of the law, secured from a public officer in charge of its interpretation, administration, or enforcement, such as the Attorney General of the state or, in the case of federal law, of the United States.
Even if a person obtains an interpretation of the law from a proper source, that interpretation must come in an “official” manner, not an offhand or informal manner. For example, a person may rely on an official “opinion letter” from the state Attorney General, formally interpreting the statute in question.
2. Exemptions to the Reasonable Reliance Doctrine
(i) Reliance on One’s Own Interpretation of the Law
A person is not excused for committing a crime if he relies on his own erroneous reading of the law, even if a reasonable person – even a reasonable law–trained person – would have similarly misunderstood the law.
(ii) Advice of Prosecutor
Although there is very little case law on the matter, there is some support for the proposition that a person may not reasonably rely on an interpretation of a law provided by a local prosecuting attorney.
(iii) Advice of Private Counsel
Reliance on erroneous advice provided by a private attorney is not a defense to a crime.
3. Fair Notice and the Lambert Principle
(i) Common Law
At common law, every one is presumed to know the law. However, in Lambert v. California [355 U.S. 225 (1957)], the Court overturned the petitioner’s conviction for failing to register with the city of Los Angeles as a prior convicted felon, as required pursuant to a strict liability ordinance of which he was unaware; the Court reversed on “lack of fair notice” due process grounds.
The Supreme Court held in Lambert that, under very limited circumstances, a person who is unaware of a duly enacted and published criminal statute may successfully assert a constitutional defense in a prosecution of that offense.
Key to the court’s decision in Lambert was the passive nature of the offense. Namely, (1) it punished an omission (failure to register); (2) the duty to act was imposed on the basis of a status (presence in Los Angeles), rather than on the basis of an activity; and (3) the offense was malum prohibitum. As a result of these factors, there was nothing to alert a reasonable person to the need to inquire into the law.
(ii) Model Code
The Model Penal Code’s fair notice exception [MPC § 2.04(3)(a)] applies where:
(1) a defendant does not believe that his conduct is illegal, and
(2) the statute defining the offense is not known to him; and was “not published or otherwise reasonably made available” to him before he violated the law.
4. Ignorance or Mistake that Negates Mens Rea
(i) Common Law
(a) “Different Law” Approach
A defendant’s lack of knowledge of, or misunderstanding regarding the meaning or application of, another law – usually, it will be a nonpenal law – will negate the mens rea element in the definition of the criminal offense. When a defendant seeks to avoid conviction for a criminal offense by asserting a different-law mistake, on the ground that the different-law mistake negates his mens rea, the first matter for determination is whether the offense charged is one of specific-intent, general-intent, or strict-liability.
(b) Specific-Intent Offenses – A different-law mistake, whether reasonable or unreasonable, is a defense in the prosecution of a specific-intent offense, if the mistake negates the specific intent in the prosecuted offense.
(c) General-Intent Offenses
Although there is very little case law on point, a different-law mistake, whether reasonable or unreasonable, apparently is not a defense to a general-intent crime.
(d) Strict-Liability Offenses
A different-law mistake is never a defense to a strict-liability offense.
(ii) Model Penal Code
MPC § 2.04(1) provides that mistake or ignorance of the law is a defense if it negates a material element of the offense. Application of this defense generally surfaces in cases of a different-law mistake.
E. Strict Liability
Whether a crime imposes strict liability turns initially upon the legislature’s intent. However, often criminal statutes do not indicate legislative intent so courts must look to other factors to ascertain the intent. Generally strict liability crimes have the following characteristics:
• Seek the public welfare
• Malum prohibitum
• Omission
• Small penalties
1. Factors Suggesting Strict Liability
Legislative intent to impose strict liability for a crime is suggested by the following characteristics:
• Is a new statutory offense
• Does not involve Direct and positive infringement on the rights of other persons
• Part of a broad regulatory scheme
• Relatively light penalty
Moreover, if most persons charged under the statute would in fact have the mens rea that might otherwise be required this will encourage a court to find that mens rea need not be proven in each particular case.
2. Factors Suggesting No Strict Liability
Courts are less likely to conclude that legislatures intended to eliminate mens rea as an essential ingredient if the crime is or closely resembles a traditional common law offense that requires mens rea; if the act constituting the crime involves a direct and serious infringement upon the rights of others; and if a severe penalty is imposed upon conviction. If strict liability would create a serious risk of convicting many entirely innocent persons courts are particularly unlikely to find strict liability.
3. Strict Liability Crimes
(i) Regulatory or Public Welfare Offenses
Courts often construe crimes that are part of regulatory schemes designed to further general welfare as imposing strict liability, particularly if they regulate items that are potentially harmful or injurious.
(ii) Traffic Offenses
(iii) Traditional Strict Liability Offenses
Some common law crimes involving serious penalties have traditionally been regarded as strict liability like for example statutory rape and bigamy.
4. Policy Considerations
(i) For
If the prosecution were required to prove mens rea in all cases, convictions would be so difficult to obtain that some crimes would not provide effective deterrents. In turn, important schemes of social regulation would be frustrated. Moreover, courts would be overburdened with frequent and extensive litigation as to whether the requisite mens rea was present.
Proponents of strict liability also stress that dispensing with the mental element as to certain crimes will not create a risk of convicting many persons who are not morally blameworthy because strict liability is imposed in situations where those in danger of being charged are operating in heavily regulated areas and therefore either will have the mens rea or would have had it if they had reasonable caution.
(ii) Against
It opens the door for conviction of persons who, because of their ignorance, have not in fact anything sufficiently wrong to justify criminal sanctions.
5. Model Penal Code
The Model Penal Code does not recognize strict liability, except with respect to offenses graded as “violations.” For all other offenses, section 2.02 requires the prosecution to prove some form of culpability regarding each material element.
F. Vicarious Liability
Courts generally uphold convictions of employers for the illegal conduct of their employees even in the absence of evidence of employer fault. However, there is less agreement on convictions for offenses that carry a sanction of imprisonment as opposed to fines.
RAPE
I. COMMON LAW
II. TRADITIONAL STATUTORY LAW
III. MODERN STATUTORY LAW
IV. MODEL PENAL CODE
V. ACTUS REUS: “FORCIBLE”
A. Intercourse Accomplished by Physical Force
B. Intercourse Accomplished by Threats
C. Incapacity to Give Consent
D. Consent Obtained by Fraud
1. Fraud As To Whether Act Is Intercourse
2. Fraud As To Medical Value of Intercourse
3. Fraud As To Whether Defendant Is Husband
4. Fraud As To Identity
5.
VI. MENS REA
A. Mistaken Belief That Victim Consented Must Be Reasonable
1. Requirement of Equivocal Conduct By Victim
RAPE
I. COMMON LAW
Generally speaking, sexual intercourse by a male with a female not his wife, constitutes rape if it is committed:
(1) forcibly;
(2) by means of deception;
(3) while the female is asleep or unconscious; or
(4) under circumstances in which the female is not competent to give consent (e.g., she is drugged, mentally disabled, or underage).
Rape is a general-intent offense. As such, a defendant is guilty of rape if he possessed a morally blameworthy state of mind regarding the female’s lack of consent.
II. TRADITIONAL STATUTORY LAW
Traditional rape statutes define the offense as sexual intercourse achieved “forcibly,” “against the will” of the female, or “without her consent.” Like the common law, such statutes are gender-specific, i.e., only males are legally capable of perpetrating the offense, and only females can legally be victims of the crime.
III. MODERN STATUTORY LAW
Many states now extend the law to specified forms of non-forcible, but nonconsensual, sexual intercourse, e.g., sexual intercourse by a male with an unconscious or drugged female. Increasingly, rape is now defined in gender-neutral terms regarding both the perpetrator and the victim. In the most reformed statutes, the offense has been broadened to include all forms of sexual penetration; the name of the crime has been changed (e.g., “criminal sexual conduct” or “sexual assault”) and the offense is divided into degrees.
IV. MODEL PENAL CODE
A male is guilty of rape if, acting purposely, knowingly, or recklessly regarding each of the material elements of the offense, he has sexual intercourse with a female under any of the following circumstances:
(1) the female is less than 10 years of age;
(2) the female is unconscious;
(3) the compels the female to submit by force or by threatening her or another person with imminent death, grievous bodily harm, extreme pain or kidnapping; or
(4) the administers or employs drugs or intoxicants in a manner that substantially impairs the female’s ability to appraise or control her conduct. [MPC § 213.1(1)]
V. ACTUS REUS: “FORCIBLE”
A. Intercourse Accomplished by Physical Force
Intercourse accomplished by physical force is without consent. However, there is nor rape if the victim resisted during the early portion of the encounter but then consented before the actual act of intercourse.
B. Intercourse Accomplished by Threats
Consent or submission obtained by placing the victim in fear of great and immediate bodily harm is legally ineffective, and the intercourse is rape.
C. Incapacity to Give Consent
If the victim is incapable of giving a legally effective consent –because of intoxication, mental deficiency, or insanity- intercourse with her is against the woman’s will and is rape. The fact that she might have expressed words indicating consent is immaterial.
D. Consent Obtained by Fraud
6. Fraud As To Whether Act Is Intercourse
If the defendant deceives the victim into believing that the act involved is something other than intercourse, her consent to that act will not bar a rape conviction. This is regarded as fraud in the factum, fraud as to the nature of the act.
7. Fraud As To Medical Value of Intercourse
If the defendant does not deceive the victim as to the nature of the act but simply misrepresents its medical or other value, the intercourse is not rape. Here there is only fraud in the inducement; the victim has clearly consented to the act of sexual intercourse and is only deceived as to the inducement for submitting thereto.
8. Fraud As To Whether Defendant Is Husband
Some courts find that intercourse under these circumstances is not rape on the theory that the victim has not been deceived as to the nature of the act. Other courts have found the fraud sufficiently related to the nature of the act to support a rape conviction.
9. Fraud As To Identity
If the defendant deceived the victim regarding his identity in a manner not involving a marriage relationship, the fraud will not render the intercourse rape.
VI. MENS REA
The mens rea required for rape is not clearly defined. The major question is whether the defendant must be aware that the act is being performed against the will of the woman. Essentially this poses the question whether the accused must be aware of the lack of consent or whether negligence will suffice. This issue is significant because often a defendant will claim that he believed the woman consented. If the proof shows that she did not consent, the defendant’s claims presents a mistake of fact defense. Mistake of fact will ordinarily preclude conviction only if it at least negates the mens rea required by the crime. Uncertainty regarding the necessary mens rea makes it difficult to determine whether defendant’s mistake of fact defense is valid.
A. Mistaken Belief That Victim Consented Must Be Reasonable
Several courts have held that a defendant’s mistaken belief that the victim consented to the sexual activity will prevent conviction only if both (1) the defendant honestly and in good faith had such belief; and (2) the facts were such that mistake was objectively reasonable.
2. Requirement of Equivocal Conduct By Victim
No issue of mistake of fact is raised for jury consideration unless the facts tend to show equivocal conduct by the victim that could have led the defendant to reasonably believe that the victim consented.
HOMICIDE
I. MURDER
A. Distinguished from Manslaughter
B. Malice Aforethought
1. Intent to Kill
2. Intent to Inflict Great Bodily Harm
3. Reckless Disregard of Life
4. Intent to Commit a Felony
II. INTENDED KILLINGS: MURDER & VOLUNTARY MANSLAUGHTER
A. Premeditation / Deliberation: First Degree Murder
1. No Appreciable Time Needed
Commonwealth v. Carroll
2. Mature Reflection
State v. Guthrie
(i) MPC Approach
B. Second Degree Murder
C. Provocation: Voluntary Manslaughter
1. Reasonable Provocation
Girouard v. State
(i) Traditional Categories
2. Elements of Provocation
Maher v. People
(i) Common Law Elements of Provocation
(ii) Role of Judge
3. MPC Approach §210.3
People v. Casassa
(i) MPC Reasonableness for EED
III. UNINTENDED KILLINGS: INVOL. MANSLAUGHTER, UNINTENTIONAL
MURDER & FELONY-MURDER
A. Involuntary Manslaughter
1. Criminal vs. Civil Liability
Commonwealth v. Welansky
(i) More Than “Civil” Negligence Required
(ii) Contributory Risk
2. Objective vs. Subjective Standards of Liability
State v. Williams
(i) Objective vs. Subjective Liability: Recklessness vs. Negligence
(a) Objective Liability
(b) Subjective Liability
3 MPC Approach §210.3 & 210.04
(i) §210.3 Manslaughter: Awareness – Subjective Liability
(ii) §210.4 Negligent Homicide: Objective Liability
B. Unintentional Murder
1. Awareness of High Risk of Death – “Wicked, Depraved and Malignant Heart”
Commonwealth v. Malone
(i) Awareness of Risk
(ii) Degree of Risk and Justifiability
2. MPC Approach §210.2 (1) (b)
(i) Inadvertent Risk Creation
B. The Felony-Murder Rule: Murder I
1. General Doctrine
(i) Foreseeability
(ii) Eggshell Victim
(iii) Felony Degrees vs Murder Degrees
2. Rationales
(i) Deterrence
(ii) Discouragement
(iii) Critique
3. Limitations
(i) Causation
(ii) Felony Must be “Dangerous”
a) Inherently Dangerous
b) Dangerous as Committed
(iii) Independent Felonies – Merger Rule
4. Killing Not In Furtherance of the Felony
State v. Canola
(i) Agency Analysis – No Felony Murder Liability
(ii) Proximate Cause Theory
5. MPC and Felony-Murder Rule
6. Misdemeanor-Manslaughter Rule: Unlawful-Act Doctrine
HOMICIDE
Homicide is the killing of a human being by a human being. Unlawful homicide may be murder, manslaughter, suicide or infanticide.
I. MURDER
A. Distinguished from Manslaughter
The traditional definition of murder is an unlawful killing with malice aforethought. Distinguish from manslaughter which is defined as unlawful killing without malice aforethought.
B. Malice Aforethought
Malice aforethought is the distinguishing criterion of murder. It is a comprehensive name for a number of different mental attitudes which have been variously defined at different stages in the development of the law, the presence of any one of which in the accused has been held by courts to render a homicide particularly heinous and therefore to make it murder. These states of mind are:
1. Intent to Kill
If the defendant intended to cause the victim’s death, the killing is with malice aforethought and thus murder.
2. Intent to Inflict Great Bodily Harm
If the defendant intended to inflict serious bodily harm upon the victim, even though she did not consciously desire to cause the victim’s death, and did in fact cause the death, the killing is with malice aforethought.
3. Reckless Disregard of Life
A defendant may be guilty of murder if she acts in the face of an unusually high risk that her conduct will cause death or serious bodily injury. “Abandoned and malignant heart” “depraved mind”.
4. Intent to Commit a Felony
If the defendant was in the process of committing a felony when she did the act that caused death, she acted with malice aforethought.
INTENTIONAL UNINTENTIONAL
M 1 – Premeditation M 2 - Depraved hear
M 2 – Intent to kill - Extreme indiff.
Vol. - Heat of passion, EED Invol. - Recklessness
Mnslghtr Mnslghtr Gross negligence
II. INTENDED KILLINGS: MURDER & VOLUNTARY MANSLAUGHTER
A. Premeditation / Deliberation: First Degree Murder
First degree murder includes killing by poison, lying in wait, or any other kind of willful, deliberate and premeditated killing.
1. No Appreciable Time Needed
The formulation of the intent to kill by premeditation and the defendant’s final decision to act upon this intent can occur as instantaneously as successive thoughts. “No time is too short”.
Some courts have gone one step further by holding that premeditation and deliberation are met when there is a conscious purpose.
Commonwealth v. Carroll (Pennsylvania, 1963)
F:
Defendant murdered his wife, was found guilty of first degree murder and sentenced to life imprisonment. Defendant had left the Army at his wife’s insistence. Wife suffered accident and developed a schizoid personality. The day of the murder, defendant and wife had an argument about defendant attending a professional school for nine days. Defendant put a loaded pistol on a window sill above their common bed to make wife feel safe. At dinner an argument started that lasted until four o’clock in the morning. After she had dozed off, defendant grabbed the pistol and shot his wife on the back of the head. Defendant was positive if he was fully aware at the time of the shooting.
I:
Whether there was sufficient time for premeditation?
R:
Defendant argues that there was insufficient time for premeditation. However, whether the intention to kill and the killing, that is, the premeditation and the fatal act, were within a brief space of time or a long space of time is immaterial if the killing was in fact intentional, willful, deliberate and premeditated. From defendant’s own statement, it is clear that, provoked by his wife, defendant remembered the gun, deliberately took it down, and deliberately fired two shots into the head of his wife. There is no doubt that this was a willful, deliberate and premeditated murder. Society would be almost completely unprotected from criminals if the law permitted a blind or irresistible impulse or inability to control one’s self, to excuse or justify a murder or to reduce it from first degree to second degree.
2. Mature Reflection
Some courts require that the defendant did in fact give reasonably calm consideration to the question of whether to kill. Evidence can consist of
• planning activity prior to the crime or
• some reasonable substitute, such as
o proof of a preexisting motive
o evidence showing that the killing was committed in such a way as to suggest a preconceived plan.
State v. Guthrie (West Virginia, 1995)
F:
Defendant found guilty of first degree murder for killing a co-worker and sentenced to life. The victim was poking fun at the defendant and flipped the defendant with a dishtowel on the nose. Defendant then took off his gloves, pulled a knife and stabbed the victim in the neck. Defendant suffered from psychiatric problems to include a nose fixation. Defendant claimed to have suffered a panic attack and not to comprehend his overreaction.
I:
Was it proper for the trial judge to equate the terms willful, deliberate, and premeditated to a mere intent to kill?
R:
The problem with the trial judge’s instructions is that they confuse premeditation with the intent to kill and thus blur the difference between first and second degree murder. Although premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation and design. Opportunity for some reflection. Any other intentional killing, by its spontaneous and nonreflective nature, is second degree murder.
(i) MPC Approach
No premeditation and no degrees of murder.
B. Second Degree Murder
Intent. All killings committed with malice aforethought that are not specifically made first degree murder.
C. Provocation: Voluntary Manslaughter
A killing that would otherwise be murder but that was committed in response to certain provocation has traditionally been regarded as being without malice aforethought and therefore voluntary manslaughter. The defendant acted with one of the states of mind necessary for malice aforethought, but the provocation reduces the killing from murder to manslaughter.
Two rationales for provocation: partial excuse / partial justification.
1. Reasonable Provocation
Objective standard. Whether a reasonable person would have been provoked.
Girouard v. State (Maryland, 1991)
F:
Defendant and wife were married and in the Army. Defendant and wife got into an argument during which she continued to taunt him by telling him she had never wanted to marry him, that he was a lousy fuck and that he reminded her of her dad. She also told defendant she had filed charges with his CO for abuse. Asked what he was going to do, defendant lunged at wife with a kitchen knife and killed her. Defendant was convicted of second degree murder.
I:
Whether words alone are provocation adequate to justify a conviction of manslaughter rather than one of second degree murder?
H:
The standard is one of reasonableness; it does not and should not focus on the peculiar frailties of mind of the defendant. There must be not simply provocation in psychological fact, but one of certain fairly well-defined classes of provocation recognized as adequate as a matter of law
R:
Defendant argued that the provocation to mitigate murder to manslaughter should not be limited only to the traditional circumstances. Defendant argued that manslaughter is a catchall for homicides which are criminal but lack the malice for a conviction of murder and that the categories of provocation adequate to mitigate should be broadened to include situations such as his.
For provocation to be adequate, it must be calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason. Words have no recognition as adequate provocation. There must be not simply provocation in psychological fact, but one of certain fairly well-defined classes of provocation recognized as adequate as a matter of law. The standard is one of reasonableness; it does not and should not focus on the peculiar frailties of mind of the defendant. Social necessity dictates the holding.
(i) Traditional Categories
• Extreme assault or battery upon the defendant
• Mutual combat
• Defendant’s illegal arrest
• Injury or serious abuse of a close relative
• Sudden discovery of a spouse’s adultery
2. Elements of Provocation
Maher v. People (Michigan, 1862)
F:
Defendant was charged with assault with intent to kill and murder. Defendant had followed his wife and the victim as they entered the woods together. When they left defendant followed the victim to a saloon. Just before he entered the saloon a friend told defendant that his wife had had intercourse with the victim in the woods the day before. Defendant entered the saloon and shot the victim.
R:
If the act of killing, although intentional, is done under the influence of passion produced by adequate or reasonable provocation and before time has elapsed for the blood to cool, the law regards the offense as of less heinous character than murder. Reason should be disturbed by passion to an extent which might render ordinary men liable to act rashly without due deliberation or reflection. Ordinary human nature should be taken as the standard. The province of the court is to define what, in law, will constitute an adequate provocation. Determining whether the provocation proved sufficient or reasonable is a question of fact. The same principles apply to cooling time. The court should define to the jury the principles upon which the question is to be decided, and leave them to determine whether the time was reasonable under all the circumstances of the particular case.
(i) Common Law Elements of Provocation
▪ There must have been provocation of the kind that would cause a reasonable person to lose control or to act rashly without reflection (see categories)
▪ The defendant must have been in fact provoked, and the provocation must have caused the defendant to kill the victim (lost control)
▪ The interval between the provocation and the killing must not have been long enough for the passions of a reasonable person to cool; and
▪ The defendant must not have actually cooled off.
(ii) Role of Judge
Judge is to decide what in law is a adequate provocation, but whether facts show this is a question for the jury.
3. MPC Approach §210.3
Under the MPC, a killing that would otherwise be murder is reduced to manslaughter if it was committed “under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.”
People v. Casassa (New York, 1980)
F:
Defendant met victim at the apartment complex where they lived. They dated casually until the victim called it off because she was not falling in love. Defendant was devastated and became emotionally disturbed. Defendant broke into the apartment several times. In his final visit to the apartment, defendant took some bottles of alcohol to give victim as a gift and when she refused he took out a steak knife and killed her. The issue presented to the trial court was whether defendant had acted under extreme emotional disturbance. The trial considered the appropriate test to be whether in the totality of the circumstances the finder of fact could understand how a person might have his reason overcome. Concluding that the test was not to be applied solely from the viewpoint of the defendant, the court found the defendant’s emotional reaction so peculiar to him that it could not be considered reasonable so as to reduce second-degree murder to manslaughter.
R:
“Extreme emotional disturbance” is an outgrowth of the “heat of passion” doctrine but it is broader in scope. An action influenced by an extreme emotional disturbance is not one that is not necessarily as spontaneous as one undertaken in the heat of passion. It may by that a significant mental trauma has affected a defendant’s mind for a substantial period of time before he acts. The question is whether the reasonableness of defendant’s emotional reaction is to be tested solely with reference to his own subjective viewpoint. In the MPC extreme emotional disturbance has two components:
1) the defendant must have acted under the influence of extreme emotional disturbance.
2) There must have been a reasonable explanation the reasonableness of which is to be determined from the viewpoint of a person in defendant’s situation.
The test for the second component is an objective one. Reasonableness must be determined by viewing the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time and assessing from that standpoint whether the explanation or excuse was reasonable.
This standard of evaluation, containing subjective and objective elements, achieves the dual goals of broadening the “heat of passion” doctrine to apply to a wider range of circumstances while retaining some element of objectivity in the process. In this case, the court made a sincere effort to understand defendant’s situation and the circumstances as defendant believed them to be, but concluded that the murder in this case was the result of malevolence rather than an understandable human response deserving of mercy.
(i) MPC Reasonableness for EED
The MPC provides that the reasonableness of the disturbance is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.
MPC allows:
• Internal factors – anger
• External factors – age, gender, handicaps
MPC does not allow
• Idiosyncratic values
III. UNINTENDED KILLINGS: INVOL. MANSLAUGHTER, UNINTENTIONAL MURDER & FELONY-MURDER
A. Involuntary Manslaughter
An unintended killing is involuntary manslaughter if (i) it is the result of criminal negligence or (ii) it is caused during the commission of an unlawful act that is not a felony or that for some other reason is insufficient to trigger the felony murder rule.
1. Criminal vs. Civil Liability
A persistent problem has been the formulation of the “extra” or “plus” qualities that distinguish unintended homicide that gives rise to criminal liability from those that, at most, produce civil liability.
Commonwealth v. Welansky (Massachusetts, 1944)
F:
Defendant owned a nightclub that caught fire killing many patrons when they couldn’t exit the premises. At the time of the fire, defendant was hospitalized. Nothing in the nightclub was any different on the night of the fire from the last time defendant had been there. Emergency exists were not clearly marked and some were difficult to access and/or open. Defendant was found guilty of involuntary manslaughter based on overcrowding, flammable decorations, absence of fire doors and failure to properly maintain the means of egress. The prosecution based its case on involuntary manslaughter through wanton or reckless conduct.
I:
Whether a wanton or reckless act is required to convict of involuntary manslaughter?
H:
The essence of wanton or reckless conduct is intentional conduct by way of either commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another.
R:
The standard of wanton and reckless conduct is both subjective and objective. Knowing facts that would cause a reasonable man to know the danger is equivalent to knowing the danger. To constitute wanton and reckless conduct grave danger to others must have been apparent and the defendant must have chosen to run the risk. If the defendant realized the danger, his voluntary act or omission amounts to wanton and reckless conduct, no matter whether the ordinary man would have realized the gravity of the danger or not. Even if the defendant did not realize the grave danger, if an ordinary man under the same circumstances would have realized the gravity of the danger, the defendant will be held liable. A man may be reckless within the meaning of the law even though he thought he was being careful.
At common law, conduct does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wanton or reckless conduct.
(i) More Than “Civil” Negligence Required
The situation must be one in which there was both a high and unreasonable risk of death of another.
• Substantial risk
• Unjustifiable risk
(ii) Contributory Risk
Not an automatic defense as in a civil case, but it may have bearing on the question of whether the defendant’s conduct was a proximate cause of the death.
2. Objective vs. Subjective Standards of Liability
State v. Williams (Washington, 1971)
F:
Defendants were charged with manslaughter for negligently failing to supply their 17-month child with necessary medical attention as a result of which the child died. Both defendants were aware that the child was ill but were ignorant of how sick he child was thinking it was nothing more than a toothache. Defendants were both Shoshon Indians with a 6th and an 11th grade education level respectively. They did not take the child to a doctor because they feared the Welfare Department would take the child away from them. Defendants were found guilty. On appeal the court concluded that under Washington statutes the crime of involuntary manslaughter is committed even if the death of the victim is only the result of simple or ordinary negligence.
R:
Ordinary caution is the kind of caution that a man or reasonable prudence would exercise under the same or similar conditions. If the conduct of a defendant, regardless of his ignorance, good intentions and good faith, fails to measure up to the conduct required of a man of reasonable prudence, he is guilty of ordinary negligence. The issue in the instant case is when the duty of furnishing medical care became activated and its exercise, or lack of, must be considered in terms of ordinary caution. Although a reasonable amount of discretion is given to parents, the standard is at what time would an ordinarily prudent parent deem it necessary to call in a doctor. Here, although the evidence showed that defendants did not understand the significance or seriousness of the baby’s symptoms, they were not physically or financially unable to obtain a doctor and the baby’s symptoms during the critical period when intervention would have averted death did not ameliorate or cease to be a concern. Applying the standard of caution exercisable by a man of reasonable prudence under the same or similar conditions, defendant’s failure to obtain medical care was ordinary or simple negligence and thus sufficient to convict.
(i) Objective vs. Subjective Liability: Recklessness vs. Negligence
(a) Objective Liability
In general, objective or external standards determine liability on the basis of general norms of proper and reasonable behavior. Negligence is an objective standard in so far as liability turns on whether the action of defendant created a risk of a kind and degree which, in the circumstances, a reasonable person would not have taken.
(b) Subjective Liability
Subjective or internal standards of liability look to the individual characteristics of the actor and take account of the “infinite varieties of temperament, intellect and education which make the internal character of a given act so different.” Premeditation and deliberation are subjective standards, since they look to what the particular defendant experienced.
3 MPC Approach §210.3 & 210.04
(i) §210.3 Manslaughter: Awareness – Subjective Liability
Under the MPC homicide is manslaughter if it is committed recklessly. Under §2.02 (2) (c), a person acts recklessly with respect to the death of another when he consciously disregards a substantial and unjustifiable risk that his conduct will cause that result. Additionally, the nature and degree of the risk must be such that, considering all the circumstances, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.
(ii) §210.4 Negligent Homicide: Objective Liability
The MPC creates a lesser offense of negligent homicide where the defendant acts without awareness of the risk.
In support or retaining negligence as the basis for criminal liability, the MPC states that knowledge of possible criminal repercussions give people an additional motive to exercise care before acting. Moreover, moral defect can properly be imputed for instances where the defendant acts out of insensitivity to the interests of others, and not merely out of an intellectual failure to grasp them.
B. Unintentional Murder
1. Awareness of High Risk of Death – “Wicked, Depraved and Malignant Heart”
Under certain exceptional circumstances, a defendant may be guilty of murder if she acts in the face of an unusually high risk that her conduct will cause death or serious bodily injury. It is said that the risk must have been so great that ignoring it demonstrates an “abandoned and malignant hear” or a “depraved mind”.
Commonwealth v. Malone (Pennsylvania, 1946)
F:
Defendant killed victim while playing a game of Russian Roulette by loading the chamber to the right of the firing pin on a five-shot revolver, placing the gun next to the victim and pulling the trigger three times. The day prior, both defendant and victim had loaded a cartridge onto the revolver. Defendant had no intention of killing the victim. Defendant was found guilty of second-degree murder. Defendant argued the facts justified involuntary manslaughter at most.
R:
At common law, the grand criterion that distinguished murder from other killing was malice on the part of the killer and this malice was not necessarily malevolence to the deceased particularly, but any evil design in general; the dictate of a wicked, depraved and malignant heart. When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty” which proved that there was at that time in him “the state or frame of mind termed malice.” The killing in the instant case was, therefore, murder, for malice in the sense of wicked disposition is evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effect on the victim. Lack of motive does not exculpate. In a trial for murder proof of motive is always relevant but not necessary.
(i) Awareness of Risk
There is a dispute as to whether the defendant must have been actually aware of the grave risk involved or whether it is enough that her conduct created that risk. While most of the cases are ambiguous on the matter, the better view would require a subjective realization of the risk on the theory that anything less is too far removed from intent-to-kill murder to justify treating the two situations alike.
(ii) Degree of Risk and Justifiability
More than mere negligence or even recklessness is required in these cases. Super-recklessness. The defendant had an actual awareness of a great risk of fatal harm.
• Murder by omission
• Murder by drunk driving
• Intent to inflict great bodily harm
2. MPC Approach §210.2 (1) (b)
The MPC treats an unintended killing as murder when it is committed recklessly and under circumstances manifesting extreme indifference to the value of human life.
The first judgment to be made is whether there was ordinary recklessness. Then a further judgment must be made whether the recklessness manifested extreme indifference to the value of human life. The significance of purpose or knowledge as a standard of culpability is that it demonstrates precisely such indifference to the value of human life. Whether recklessness is so extreme that it demonstrates similar indifference is a question for the trier of fact under instructions that recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder.
(i) Inadvertent Risk Creation
Inadvertent risk creation, however extravagant and unjustified, cannot be punished as murder. The result is consistent with the general conception that serious felony sanctions should be grounded securely in the subjective culpability of the actor. Inadvertent risk creation and negligence as forms of criminal homicide should be faced separately from the offense of murder.
B. The Felony-Murder Rule: Murder I
1. General Doctrine
A killing –evens an accidental one- will be murder if it was caused with the intent to commit a felony. Broadly speaking, the rule provides that any killing committed during the course of a felony is murder. No intent to kill or other mental state regarding the occurrence of death is required. The felony on which a particular prosecution is based is called the “predicate felony”.
(i) Foreseeability
Some courts hold that the felony-murder doctrine is not limited to those deaths which are foreseeable. Other courts require the death to have been a foreseeable result of the felony.
(ii) Eggshell Victim
If the victim has a predisposing physical condition, so long as it is no the only substantial factor in bringing about his death, that condition and the felon’s ignorance of it in no way destroys the felon’s criminal responsibility for the death.
(iii) Felony Degrees vs Murder Degrees
Enumerated felony First Degree Murder
Malice implied, not enumerated felony Second Degree Murder
Malice shown Second Degree Murder
2. Rationales
The proposition that the mens rea of a lesser offense may substitute for the mens rea of a greater offense underpins the felony-murder rule doctrine.
(i) Deterrence
Felony-murder rule is seen as a way to deter felons from killing negligently or accidentally by holding them strictly responsible.
(ii) Discouragement
By imposing the threat of additional punishment if the felon causes death it is believed the rule discourages the use of violence during the commission of felonies.
(iii) Critique
It is wrong to punish a person for an accidental offense that took place during the commission of another offense.
Punishment must be proportional to the wrongdoing. The felony-murder rule renders punishment disproportionate to the wrong for which the offender is responsible for.
How do you deter an accident?
3. Limitations
(i) Causation
Although a defendant can be held liable under the felony-murder rule in the absence of fault (i.e. mens rea) with respect to the death, the prosecution still must establish that the defendant’s conduct caused the death under normal standards of causation: “but for” cause and “proximate cause”. Two exceptions are made in the cases of
(1) an eggshell victim and
(2) where a foreseeability requirement is satisfied by a finding that the defendant directly killed the deceased in the course of a felony found to be inherently dangerous so that the death was readily foreseeable.
(ii) Felony Must be “Dangerous”
The predicate felony must be a dangerous one. There are two approaches for determining whether a felony is dangerous:
c) Inherently Dangerous
A few jurisdictions demand that the felony always be dangerous to human life when evaluated in the abstract rather than on the facts of any particular case.
d) Dangerous as Committed
Most courts examine the facts of particular cases and the circumstances under which the felony was committed and apply the felony murder rule only if the felony as committed on the facts of the case involved a special or significant risk to human life.
(iii) Independent Felonies – Merger Rule
The rule is not applied when the underlying felony is unquestionably an integral part and included in fact in the homicide.
Rationale: if any murder is a felony and any killing that occurs during any felony results in strict liability for Murder I, then every murder would be Murder I and there would be no need for legislative grading of killings.
4. Killing Not In Furtherance of the Felony
Special problems arise when the victim’s death was not caused directly by the defendant or one of the co-felons but rather by someone else, such as a resisting victim or a pursuing police officer.
State v. Canola (New Jersey, 1977)
F:
Δ along with three confederates was in the process of robbing a store when a victim of the robbery fatally shot one of the co-felons. Among other counts, Δ was convicted on two counts of murder based on the deaths of the robbery victim and the co-felon.
I:
Can Δ be held liable for felony-murder in the death of his co-felon?
H:
To apply the felony-murder rule beyond its classic limitation to acts by the felon and his accomplices to lethal acts of third persons not in furtherance of the felonious scheme would be regressive and not in accord with the modern tendency that favors restriction rather than expansion of the rule.
R:
Two theories on whether the doctrine of felony-murder extends to a killing committed during a felony and not directly attributable to the act of one of the felons:
Agency theory – rule does not apply unless Δ or a co- Δ actually does the killing.
Proximate cause theory – rule applies to any death proximately resulting from the felony.
The rule has gone through different interpretations. To determine if the statue is susceptible to proximate cause interpretation, it is appropriate to consider the public policy implications of the doctrine. The rule was logical at its inception, when all felonies were punishable by death, but its survival to modern times when other felonies are not thought to be as blameworthy as premeditated killings is discordant with current views of criminal culpability and liability. Tort concepts of foreseeability and proximate cause have little relevance to culpability for murder in the first degree. Gradations of criminal liability should accord with the degree of moral culpability of the actor’s conduct.
(i) Agency Analysis – No Felony Murder Liability
Most courts reason that felony murder applies only when the death is caused by the defendant or someone acting as the defendant’s agent. Since neither the victim nor police officers are in any sense agents of the felons, a death directly caused by them cannot give rise to felony murder.
(ii) Proximate Cause Theory
Some courts have found felony murder liability, reasoning that these situations present all that is necessary – a showing that “but for’ the commission of the felony, the victim would not have died.
5. MPC and Felony-Murder Rule
MPC recommends abandoning the felony-murder rule, but it provides that for the purpose of establishing murder by an act committed recklessly under circumstances manifesting extreme indifference to the value of human life while committing a felony the felony creates a rebuttable presumption that the recklessness and indifference in fact existed.
6. Misdemeanor-Manslaughter Rule: Unlawful-Act Doctrine
Misdemeanor resulting in death can provide a basis for an involuntary manslaughter conviction without proof of recklessness or negligence.
Traditionally involuntary manslaughter was a killing “in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution or circumspection.” Two theories available to prove involuntary manslaughter: criminal negligence and unlawful-act doctrine. Under the latter strict liability applies. There are some limitations, however:
Rule applies only when the crime committed was the proximate cause of death.
Usually restricted to malum in se crimes as opposed to malum prohibitum.
Usually limited to misdemeanors that rise to the level of criminal negligence or show a marked disregard for the safety of others.
Sometimes limited to misdemeanors designed to protect human safety.
Premed 1º Enumerated Felony
No HOP
No Premed 2º No Felony or
Intent Non-Enumerated
HOP Voluntary Manslaughter
Greater Risk
Recklessness
Involuntary Manslaughter
No Intent
Accident
No Recklessness
Gross Negligence
CAUSATION
I. GENERALLY
II. COMMON LAW
A. Factual Cause: “But For”
1. Substantial Factor
2. Multiple Actual Causes
3. Accelerating a result
4. Concurrent Causes
5. Obstructed Cause
B. Proximate Cause
People v. Acosta
(i) Improper Medical Treatment
(ii) Intervening Disease
(iii) Omissions
C. Superseding Factors
1. Must Be Intervening
2. Must Be Unforeseeable
(i) Improper Medical Treatment - Malpractice
.(ii) Intervening Disease - Outbreak
(iii) Apparent Safety Doctrine
3. Intervening Human Action: Foreseeability vs. Autonomy
(i) Subsequent Victim Behavior
II. MPC
A. Factual Cause
B. Proximate Cause
CAUSATION
I. GENERALLY
Where a crime is defined without regard to any result of the defendant’s conduct (i.e. attempt, conspiracy, burglary) there is no need to face the issue of causation. But where a particular result of a defendant’s conduct is a necessary element of the crime charged a problem sometimes arises as to whether the defendant’s act caused the result.
Conduct = Crime vs. Result = Crime
In addition to having MR and AR you need causation for crimes where the result of some conduct is the crime
MR + AR + Causation = Crime
II. COMMON LAW
A. Factual Cause: “But For”
The prosecution must first establish that the defendant’s acts were the factual cause of the result, that but for the defendant’s acts the result would not have happened.
1. Substantial Factor
Factual causation requires that the defendant’s act be a substantial factor in bringing about the result.
2. Multiple Actual Causes
When a victim’s injuries or death are sustained from two different sources, any of the multiple wrongdoers can be found culpable if his act was “a” cause-in-fact of the injury or death. It is not necessary that any act be the sole and exclusive cause-in-fact of injury.
3. Accelerating a result
Even if an outcome is inevitable – e.g., everyone dies – if defendant’s act accelerated death, he can be found criminally liable. The “but-for” test can be stated in such circumstances as “but for the voluntary act of the defendant, would the harm have occurred when it did?” E.g., a defendant shoots a terminally ill patient may still be found guilty of homicide since although the victim’s death was inevitable, it would not likely have occurred when it did but for the defendant’s unlawful act.
4. Concurrent Causes
If, in the case of infliction of harm from two or more sources, each act alone was sufficient to cause the result that occurred when it did, the causes are concurrent and each wrongdoer can be found criminally liable.
5. Obstructed Cause
If a defendant commits a voluntary act intending to cause harm – e.g., shooting a victim in the stomach intending to kill the victim – but another wrongdoer commits a more serious injury that kills the victim sooner, the initial wrongdoer might only be convicted of attempt to kill since the subsequent wrongdoer’s act obstructed his goal to killing the victim.
B. Proximate Cause
People v. Acosta (California, 1991)
PH:
Δ appeals conviction on three counts of second degree murder because of insufficient evidence to show his conduct was the proximate cause of death and because there was insufficient evidence of malice.
F:
Δ engaged in car chase with police in stolen car.
Two police helicopters chasing him collided and three occupants were killed.
Expert testified helicopters collided because one of them violated FAA regulations.
Δ argues that although a collision between ground vehicles was foreseeable to him, one between helicopters was not.
Δ also argues that pilot’s violation of FAA regulations was a superseding cause.
I:
Whether a Δ is guilty of second degree murder when the act was not foreseeable to him and the act was the direct result of a third party’s reckless actions?
H:
The standard should be one of foreseeability, excluding extraordinary results, using the common sense of the common man as to common things. The “highly extraordinary result” standard does not involve the defendant’s state of mind, but focuses upon the objective conditions present when he acts.
R:
Proximate cause is the term historically used to separate those results for which an actor will be held responsible from those not carrying such responsibility. The threshold question is whether the defendant’s act was an “actual cause” of the victim’s injury. But for the defendant’s act would the injury have occurred? The standard should be one of foreseeability, excluding extraordinary results, using the common sense of the common man as to common things. The “highly extraordinary result” standard does not involve the defendant’s state of mind, but focuses upon the objective conditions present when he acts. In the instant case, but for Acosta’s chase the helicopters would not have crashed. The result was not highly extraordinary, it was a possible consequence which reasonably might have been contemplated. There was an appreciable probability that one of the pursuers in the heat of the chase might act negligently or recklessly to catch the quarry. As to the evidence of malice, there was not enough evidence that Δ consciously disregarded the risk to the helicopter pilots. No juror could find a conscious disregard for a risk which is barely cognizable.
J:
Reversed.
(i) Improper Medical Treatment
D shoots V. Although the wound is not fatal, surgical treatment is required. The surgery is performed, but V dies because of a failure to provide adequate blood transfusions. Since the risks of surgery are foreseeable, the ineffectively administered transfusion is not a superseding factor. Therefore, D’s shot is the proximate cause of V’s death.
(ii) Intervening Disease
D shoots V and injures her. V is taken to hospital, where there is an outbreak of scarlet fever. V contracts the disease and dies. The contraction was foreseeable and D will be found criminally liable.
(iii) Omissions
Courts are uniformly willing to treat omissions as the legal cause of a result in situations where there is a duty to act.
C. Superseding Factors
1. Must Be Intervening
An act or occurrence will be a superseding factor only if it is an intervening one, one set in motion after the defendant’s act. Therefore, a preexisting condition cannot be a superseding factor and will not break the chain of proximate causation.
2. Must Be Unforeseeable
(i) Improper Medical Treatment - Malpractice
Some courts hold that deficient medical care is unforeseeable and thus may break the chain of causation, if it is grossly negligently or so poorly administered as to constitute medical malpractice.
.(ii) Intervening Disease - Outbreak
D shoots V and injures her. V is taken to hospital, where she contracts scarlet fever from her doctor and dies of the disease. Ordinarily such occurrence is unforeseeable and hence a superseding factor.
(iii) Apparent Safety Doctrine
A defendant’s unlawful act that puts a victim in danger may be found to be the proximate cause of resulting harm, unless the victim has a route to safety but instead puts herself in further harm, which causes the injury of death. E.g., a spouse’s physical violence causes his wife to flee the house on a freezing night, and although the wife can find nearby shelter with a relative or friend, decides to spend the rest of the night outside, and dies from freezing temperature.
3. Intervening Human Action: Foreseeability vs. Autonomy
The law of causation treats physical events that follow from a person’s actions as caused by him or her, but it ordinarily does not treat human action that follows from an initial actor’s conduct as caused by that actor, even when the subsequent human action is entirely foreseeable. The results that follow from the second person’s actions are caused by him or her alone. Novus actus interveniens.
• Subsequent actions that are freely chosen and intended to produce a harmful result are typically treated as intervening to “break” the causal chain.
(i) Subsequent Victim Behavior
D commits a variety of perverted sexual acts upon V while holding her prisoner. V escapes briefly, takes poison, and dies. Even though V took her own life, this was a foreseeable consequence of D’s actions, since suicide is a normal response to the agonizing situation created by D. Hence, D proximately caused V’s death.
III. MPC Approach
A. Factual Cause
The Model Penal Code applies the but-for (sine qua non) rule. [MPC § 2.03(1)(a).]
B. Proximate Cause
Unlike the common law, the “but-for” test is the exclusive meaning of “causation” under the Model Penal Code. The Code treats matters of “proximate causation” as issues relating instead to the defendant’s culpability. That is, in order to find the defendant is culpable, the social harm actually inflicted must not be “too remote or accidental in its occurrence from that which was designed, contemplated or risked. [MPC §2.03(2)(b), (3)(c)] In such circumstances, the issue in a Model Code jurisdiction is not whether, in light of the divergences, the defendant was a “proximate cause” of the resulting harm, but rather whether it may still be said that he caused the prohibited result with the level of culpability—purpose, knowledge, recklessness, or negligence—required by the definition of the offense.
In the rare circumstance of an offense containing no culpability requirement, the Code provides that causation “is not established unless the actual result is a probable consequence of the defendant’s conduct.” [MPC § 2.03(4)] This would mean that in a jurisdiction that recognizes the felony-murder rule, but which applies Model Penal Code causation principles, a defendant may not be convicted of felony-murder if the death was not a probable consequence of his felonious conduct.
ATTEMPT
I. INTRODUCTION
II. MENS REA
A. Specific Intent
Smallwood v. State
1. Intent and Knowledge
2. Probabilities
3. Conditional Intent
B. Strict Liability
C. Attempted Felony-Murder
D. Attempted Manslaughter: Nonintentional Result Crimes
III. ACTUS REUS: PREPARATION VS. ATTEMPT
A. The Last Step Rule
B. The Dangerous Proximity Test
People v. Rizzo
C. Abandonment
D. The Equivocality Test: Res Ipsa Loquitur
E. The MPC Approach: Substantial Test - §5.01
United States v. Jackson
ATTEMPT
I. INTRODUCTION
At common law attempts were a misdemeanor. Today, in most cases, attempt gets less punishment that if you had committed the crime. Why punish attempt less?
Less public outrage
Less harm
Less gain
Punishing an attempt just like the crime attempted would result in a perverse incentive for criminals to go all the way even when they entertained the possibility of desisting. A way around the law of attempt is to extend the zone of criminalization creating new substantive offenses along the path to the target offense: burglary, breaking and entering . . .
MR AR
Specific Intent (purpose) Last Act
Proximity
Intent Plus
Equivocality
Substantial Step
Act minus: the focus of these tests is how far the defendant’s conduct is from the target offense. What remains to be done.
Act plus: the focus is how close the defendant’s conduct to the target offense. What has been done.
Intent plus: McQuirter. Intent plus anything else.
II. MENS REA
A. Specific Intent
Common law and most American jurisdictions agree that an attempt requires a purpose (specific intent) to produce the proscribed result, even when recklessness or some lesser mens rea would be enough for conviction of the completed crime.
Thus, while it is sufficient for murder that a person engages in conduct knowing of a high probability that in doing so he will kill someone, attempted murder requires a specific intent to kill.
Three explanations for the requirement of specific intent:
• Linguistic: to attempt something is to try to accomplish it and one cannot be said to try if one does not intend to succeed.
• Moral: one who intends to commit a criminal harm does a greater moral wrong than one who does so recklessly or negligently.
• Utilitarian: the importance of intent is not so show that the act was wicked but that it was likely to be followed by hurtful consequences.
Smallwood v. State (Maryland, 1996)
PH:
Δ was convicted in a non-jury trial of three counts of assault with intent to murder his rape victims.
F:
Δ was aware he was HIV positive. He had been warned by social worker of the need to practice safe sex. Δ argued that the most that could be reasonably inferred is that he was guilty of reckless endangering his victims by exposing them to the risk of infection. Π argued that engaging in unprotected sex when one is knowingly infected with HIV is equivalent to firing a loaded firearm at that person.
I:
Did Δ possess the required mens rea for attempted murder?
H:
The required intent in the crime of attempted murder is the specific intent to murder. Since intent is subjective, its presence must be inferred by established facts. Before an intent to kill may be inferred based solely upon Δ’s exposure of a victim to a risk of death, it must be shown that the victim’s death would have been a natural and probable result of the defendant’s conduct.
R:
The required intent in the crime of attempted murder is the specific intent to murder. Δ can be found guilty of murder only if he had the specific intent to kill. Since intent is subjective, its presence must be inferred by established facts. Under the proper circumstances, an intent to kill may be inferred from the use of a deadly weapon directed at a vital part of the human body. Π makes the analogy of HIV as a deadly weapon. Before an intent to kill may be inferred based solely upon Δ’s exposure of a victim to a risk of death, it must be shown that the victim’s death would have been a natural and probable result of the defendant’s conduct. No evidence was presented to reasonably conclude that death by AIDS is a probable result of Δ’s actions to the same extent that death is the probable result of someone firing a loaded pistol at a vital part of someone’s body. It cannot be fairly concluded that death by AIDS was sufficiently probable to support an inference that Δ intended to kill his victims.
Π in this case would allow the trier of fact to infer an intent to kill based solely upon the fact that Δ exposed his victims to the risk that they might contract HIV. Without evidence showing that such a result is sufficiently probable to support this inference, we conclude that Δ’s convictions for attempted murder and assault with intent to murder must be reversed.
Notes:
MR = specific intent (purpose). MR is inferred from the circumstances. A very high degree of knowledge can be equated to purpose (MPC).
1. Intent and Knowledge
Following the MPC, specific intent (purpose) requires that it be the conscious object of the person to engage in conduct of that nature or to cause such result.
2. Probabilities
MPC §5.01 (1) (b): the required mens rea is satisfied if the defendant acts “with the purpose of causing or with the belief that [his conduct] will cause the prohibited result.
3. Conditional Intent
Conditional intent qualifies as an intent.
B. Strict Liability
Since the statute made the crime a strict liability offense, the same must be true of the attempt. If crimes of strict liability are a necessary and valid instruments of policy, then there is no reason for not applying this same policy in the case of attempts.
C. Attempted Felony-Murder
Most states that have considered the issue have rejected the concept of attempted felony murder.
D. Attempted Manslaughter: Nonintentional Result Crimes
If a crime requires a result and a mental state less than “intent” regarding that result, most courts hold that there is no crime of attempted commission of that offense. This is because the mens rea requirement of attempt would automatically increase the requirement for the object crime above what was intended.
The requirement of specific intent means that there can be no crime of attempted (involuntary) manslaughter although it is widely accepted that there is a crime of attempted (voluntary) manslaughter.
It is of the essence of involuntary manslaughter that the consequences be produced recklessly but not intentionally. An attempt to commit voluntary manslaughter, on the other hand, may theoretically be possible. D, acting under such provocation as would reduce murder to manslaughter, strikes at P with a hatchet with intent to kill him but misses. Assuming that the doctrine of provocation applies on a charge of attempted murder, D would appear to be guilty of attempted manslaughter.
III. ACTUS REUS: PREPARATION VS. ATTEMPT
The common law has recognized the distinction between acts of attempt and acts of preparation – between acts which are, and acts which are not, too remote to constitute a criminal attempt. You want to leave people a chance to repent and you do not want to punish for thoughts.
A. The Last Step Rule
The rule suggested by Baron Parker in R. v. Eagleton (1855) was that in order to constitute criminal attempt, as opposed to mere preparation, the accused must have taken the last step which he was able to take along the road of his criminal intent. He must have done all that he intended to do and was able to do for the purpose of effectuating his criminal purpose. When he has stopped short of this, for any reason, he still has locus penitentiae and still remains within the region of innocent preparation.
Notes: instantaneous. Difficulty differentiating with the actual commission of the crime. No room left for intervention. Zone of criminality collapsed. On the other hand, it gives the individual plenty of time to change his mind.
B. The Dangerous Proximity Test
Admitting that intention in general can be proved by a confession, a confession is not sufficient proof in attempt because, standing alone, it gives no assurance that the accused would have had the constancy of purpose to put his plan into execution. The commission of the proximate act proves not merely the purpose, but the firmness of the purpose.
People v. Rizzo (New York, 1927)
PH:
Δ was convicted of attempted robbery in the first degree.
F:
Δ and three others planned to rob a pay roll man. They rode about in their car looking for him, but were arrested by the police before the had seen or discovered the pay roll man.
I:
Did Δ’s acts constitute attempted robbery?
H:
The law must be practical, and therefore considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference. There must be dangerous proximity to success.
R:
There is no doubt Δ had the intention to commit robbery if he got the chance. The law recognizes that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law must be practical, and therefore considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference. There must be dangerous proximity to success.
C. Abandonement
One reason for judicial reluctance to move the threshold of criminality to an earlier point in time has been the desire to preserve for the defendant a “locus penitentiae” – an opportunity to repent. Should defendant’s abandoning her criminal purpose defeat liability for the attempt? If inchoate crimes are to be treated like other offenses, the answer would have to be negative. Remorse and restitution may affect the sentence, but they cannot erase liability once the elements necessary for conviction are complete. The law traditionally denied any defense for abandonment. To minimize the resulting potential for unfairness, courts may therefore insist that the threshold of criminality be placed very close to the last act, even when this approach means freeing some defendants who almost certainly would not have repented. A way to avoid this dilemma is to recognize abandonment as a complete defense. A typical requirement is that the abandonment occur “under circumstances manifesting a voluntary and complete renunciation of the criminal purpose.”
D. The Equivocality Test: Res Ipsa Loquitur
It is an alternative to the dangerous proximity test for determining what acts suffice for attempt (once intent is proven), looking not to how far the defendant has gone but how clearly his acts bespeak his intent.
Res ipsa loquitur. That man’s unfulfilled criminal purposes should be punishable they must be manifested by overt acts which are sufficient in themselves to declare and proclaim the guilty purpose with which they are done. So long as the equivocal quality remains in his acts, no one can say with certainty what the intent of the defendant is.
E. The MPC Approach: Substantial Test - §5.01
The MPC draws on elements of both the proximity and the equivocality tests. Roughly half the states and two-thirds of the federal circuits now use a substantial step test comparable to that of the Model Penal Code.
United States v. Jackson (2d Circuit, 1977)
PH:
Δ found guilty of two counts of attempted robbery.
F:
Δ and others agreed with several others to rob a bank on 14 JUN 76. After obtaining the necessary paraphernalia, they drove to the bank, entered to check the surveillance cameras, installed a fake cardboard license plate on the car but called it off rescheduling for 21 JUN. FBI got wind of the plot and staked out the bank of 21 FEB. Δ and accomplices noted the FBI presence and were arrested before robbing the bank. FBI found in their possession the necessary materials to rob the bank. Δ argues that his conduct never crossed the line which separates mere preparation from attempt.
I:
Did Δ attempt to rob a bank or merely engaged in preparation to rob a bank?
H:
A defendant who has shown specific intent is guilty of attempt if he engaged in conduct which constitutes a substantial step toward commission of the crime.
R:
The trial judge used a two-part inquiry modeled on the MPC approach:
(1) the defendant must have been acting with the kind of culpability required for the commission of the crime;
(2) the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the criminal intent.
This formulation is different to previous approaches in three respects. First, it shifts the emphasis from what remains to be done – proximity tests – to what the actor has already done. That further major steps must be taken before the crime can be completed does not preclude a finding that the steps already undertaken are substantial. Second, no finding is required as to whether the actor would have probably desisted prior to completing the crime. Third, a substantial step will prove less of a hurdle than the res ipsa loquitur approach – equivocality – which requires that the actor’s conduct must itself manifest the criminal purpose. The MPC draftsmen concluded that a substantial step would preclude attempt liability for relatively remote preparatory acts while at the same time, by nor requiring a “last proximate act” it would permit the apprehension of dangerous persons at an earlier stage. In the case at hand, Δ had passed beyond the stage of preparation, and would have assaulted the bank had they not been dissuaded by certain external factors.
SOLICITATION
I. SOLICITATION WITHOUT AN OVERT ACT IS NOT ATTEMPT
State v. Davis (Missouri, 1928)
A. Solicitation as an Independent Crime
II. SOLICITATION AS AN OVERT ACT OF ATTEMPT
United States v. Church (Ct. Mil. Rev., 1989)
A. Solicitation as an Attempt
SOLICITATION
Is solicitation an attempt? Courts differ. Some believe it is never an attempt. Others believe it to be a substantial step under circumstances it was taken. Jurisdictions that do make it an attempt generally do not have solicitation as a separate crime.
I. SOLICITATION WITHOUT AN OVERT ACT IS NOT ATTEMPT
State v. Davis (Missouri, 1928)
PH:
Δ was convicted of attempted murder on the first degree.
F:
Δ sought help to kill his lover’s husband and collect his insurance money. Policeman posed as hit man. Δ paid policeman to carry out the plan. Δ was arrested.
I:
Does a solicitation to commit a crime constitute an attempt to commit that crime?
H:
Mere solicitation unaccompanied by an act towards the commission of the intended crime, is not an overt at constituting an element of the crime of attempt
R:
Mere solicitation unaccompanied by an act towards the commission of the intended crime, is not an overt at constituting an element of the crime of attempt. Π argues that the selecting and hiring of the means or instrumentality are overt acts. We do not agree. These things were acts of preparation, failing to lead directly or proximately to the consummation of the intended crime. The policeman did not have the intention to carry out the expressed purpose of Δ and was guilty of no act directly or indirectly moving toward the consummation of the intended crime. He did nothing more than listen to the plans. It was not shown that the policeman committed an act that could be construed as an attemp.
Notes:
If cop had committed the murder, Δ would have been convicted of accomplice liability but not of murder. Cop’s free will was an intervening cause and broke the chain of causation.
A. Solicitation as an Independent Crime
At common law solicitation was a crime independent of any other offenses committed. For a long time American codes did not incorporate the offense, but rather made criminal the solicitation of particular crimes. Today, a substantial number of states now have general solicitation statutes patterned after the MPC §5.02. MPC takes a balancing approach between the view that the solicitor’s conduct is not dangerous because the will of an independent moral agent comes between the solicitor and the crime and the opposing view that solicitation is dangerous because it gives rise to cooperation among criminals. According to the MPC, solicitation is sufficiently indicative of a disposition towards criminal activity. Additionally, the fortuity that the person solicited does not agree to commit the crime should not relieve the solicitor from liability, when otherwise he would be a conspirator or an accomplice.
II. SOLICITATION AS AN OVERT ACT OF ATTEMPT
United States v. Church (Ct. Mil. Rev., 1989)
PH:
Δ was found guilty of the attempted premeditated murder of his wife.
F:
Δ wanted to regain custody of his son and decided to hire a hit man to kill his wife. An undercover agent posed at the hit man. Δ provided the agent with a partial payment; expense money; photographs; work schedules; approved the weapon to use; expressed a preference where on the victim he wanted the shots placed. Everything was videotaped. After “completion” of the murder, Δ expressed satisfaction and paid the agent the balance due. Δ admits to being guilty of soliciting another to commit murder, but argues that he is not guilty of attempted murder because no act beyond mere preparation was proven.
I:
Is solicitation an overt act of attempt?
H:
Solicitation constitutes a substantial step towards commission of the crime and establishes the requisite overt act amounting to more than mere preparation.
R:
In various factual situations involving contracting out for crimes, many courts have found that the evidence only established mere acts of preparation. We are not convinced, however, that military law should extend so far as to hold that a factual situation such as this one will not constitute an attempt to commit a crime. Δ conduct constituted a substantial step towards commission of the crime and established the requisite overt act amounting to more than mere preparation. Δ armed a missile and fired it off, fully believing it was aimed directly at his intended victim.
Notes:
Court disregards the agent’s free will as an intervening cause.
A. Solicitation as an Attempt
Courts differ. Recent federal cases hold that a solicitation can constitute a punishable attempt if it represents a substantial step under the circumstances. Many states, though, adhere to the 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.
ATTEMPT DEFENSES
I. IMPOSSIBILITY
A. Legal Impossibility
People v. Jaffee (New York, 1906)
B. Factual Impossibility: No Chance of Success
C. MPC Approach
People v. Dlugahsh (New York, 1977)
1. MPC Application: Intent is not the Sole Criterion
(i) True Legal Impossibility
(ii) Acts Corroborative of Culpability
ATTEMPT DEFENSES
I. IMPOSSIBILITY
A. Legal Impossibility
Prior to the enactment of impossibility statutes, all courts agreed that there is a defense of legal impossibility when, unknown to the actor, what the actor planned to do had not been made criminal. The major difficulty is distinguishing legal from factual impossibility. Two types of legal impossibility:
Misunderstanding concerning the law thinking it is a crime to do what is not
Mistake as to circumstances that in fact do not constitute a crime
People v. Jaffee (New York, 1906)
PH:
Δ convicted of an attempting to buy or receive stolen property.
F:
Δ received 20 yards of cloth he thought were stolen. The cloth was in fact not stolen. It had been returned to the owners.
I:
Whether upon an indictment for receiving goods, knowing them to have been stolen, a Δ may be convicted of an attempt to commit the crime when the goods were in fact not stolen property?
H:
There can be no receiving of stolen goods which have not been stolen.
R:
The purchase could not constitute the crime of receiving stolen property, knowing it to be stolen, since there could be no such thing as knowledge on the part of Δ of nonexistent fact, although there might have been a belief in his part that the fact existed. There can be no receiving of stolen goods which have not been stolen. The crucial distinction lies not in the impossibility of the commission of the crime, but in the fact that, in the present case, the act, which it was doubtless the intent of the defendant to commit, would not have been a crime if it had been consummated. Belief is not enough, no matter what was the motive, and no matter what he supposed. The crime necessarily consists of three elements: first, the act; second the intent; third the knowledge of an existing condition. There was no proof to establish the existence of the third. If the thing is not a crime, he does not intend to commit one whatever he may erroneously suppose.
Notes:
The individual mental state does not matter. What matters is the act itself.
B. Factual Impossibility: No Chance of Success
Sometimes a defendant has set out to do something that would, if accomplished, constitute a crime, but because of factors he is unaware of, there is no chance he will succeed. His actions nevertheless demonstrate his dangerousness and culpability. This is factual impossibility, and it is universally rejected as a defense to a charge of attempt.
C. MPC Approach
People v. Dlugahsh (New York, 1977)
PH:
Δ convicted of attempted murder.
F:
After victim was shot, Δ walked over and fired approximately five shots into the victim’s head and face. Prosecution witnesses could not establish if the victim was alive at the time Δ fired. Trial judge instructed the jury on a theory of intentional murder and a theory of attempted murder. Appellate Division reversed because Π failed to prove beyond a reasonable doubt that the victim was alive at the time Δ shot.
I:
Whether Δ can be convicted of attempted murder when the evidence does not show beyond a reasonable doubt that the victim was alive at the time of the shooting?
H:
It is no defense to a prosecution for an attempt that the crime charged to have been attempted was, under the attendant circumstances, 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.
R:
The approach of the MPC was to eliminate the defense of impossibility in all situations. It is still necessary that the result intended or desired by the actor constitute a crime, however, the basic premise is that what was in the actor’s own mind should be the standard for determining his dangerousness to society and, hence, his liability for attempted criminal conduct. Traditional impossibility does not detract from the offender’s moral culpability. Thus, if the defendant believed the victim to be alive at the time of the shooting, it is no defense to the charge of attempted murder that the victim might have been dead. A murder would have been committed had the circumstances been as Δ believed them to be.
Notes:
MPC: what matter is the actor, not the outcome of the events.
1. MPC Application: Intent is not the Sole Criterion
(i) True Legal Impossibility
Legal impossibility would apply to those circumstances where (1) the motive, desire an expectation is to perform an illegal act; (2) there is intention to perform the physical act; (3) there is a performance of the physical act; (3) the consequences resulting from the intended act do not amount to a crime.
(ii) Acts Corroborative of Culpability
In order for a Δ to be guilty of a criminal attempt, the objective acts performed, without any reliance on the accompanying mens rea, must mark the defendant’s conduct criminal in nature.
CONSPIRACY
I. INTRODUCTION
II. ACTUS REUS: THE AGREEMENT
A. No Need for Express Agreements
Interstate Circuit, Inc. v. United States
B. Other Characteristics of the Agreement
1. Common Design Pursued by Common Means
2. Concurrence of Acts can not be Accidental
3. Inference from Circumstances
C. Overt Act Requirement
1. Common Law: Liability Without an Overt Act
2. Statutes Requiring an Overt Act
3. MPC Approach: Traditional Position, §5.03
III. MENS REA
People v. Lauria
A. MPC Approach: Purpose §2.06 (3)
B. Corrupt Motive
IV. CONSPIRACY AS ACCESORIAL LIABILITY
A. Vicarious Criminal Liability for Crimes Within Scope of the Conspiracy
Pinkerton v. United States
B. Liability for Foreseeable Crimes Outside the Scope of Conspiracy
C. New Conspirator Liability
A. MPC Approach §2.06 (3)
V. SCOPE OF CONSPIRACY: MULTIPLE CONSPIRACIES
A. Spoke and Wheel Situations
Kotteakos v. United States
B. Chain Situations
1. Agreeing With Unknown Co-conspirators
Blumenthals v. United States
2. Multiple Links Making Up One Conspiracy
United States v. Bruno
3. Independent Links
C. MPC Approach §5.03 (1) (2) (3)
CONSPIRACY
I. INTRODUCTION
Whether a defendant agreed with another person to commit a crime? Conspiracy is controversial. Not only is it a substantive inchoate crime, is also the touchstone for invoking several procedural and substantive doctrines. The problem arises out of this use of a single abstract concept to decide numerous questions that deserve separate consideration.
Conspiracy could take place before solicitation or after it. Some problems with it are:
• Extreme extension of the zone of criminality
• Agreement is predominantly mental – there is a danger of criminalizing thoughts
• Vague – what is it, what is it not
• Misuse – historically used for political and oppressive purposes.
Some advantages:
• Earlier intervention
• Agreement shows firmness of intent
• Group conduct is dangerous (higher morale, ability to specialize, delegate, divide . . .)
II. ACTUS REUS: THE AGREEMENT
A. No Need for Express Agreements
A conspiracy may exist if there is no communication and no express agreement, provided that there is a tacit agreement reached without communication.
Interstate Circuit, Inc. v. United States (Supreme Court, 1939)
PH:
Δ convicted of conspiracy in violation of Sherman Anti-Trust Act.
F:
Two related movie theater chains that dominated the film market in the cities where their theaters were located, wrote a letter to each of eight film distributors. The letter asked compliance with two demands to fix prices. The letters identified all eight distributors as addressees of the proposal. Each distributor agreed to the demands and the trial court found that the distributors had agreed and conspired with one another. In order to establish agreement the court drew an inference from the proposals, the manner in which they were made, and the unanimity of action. Δ challenge the conclusion as not supported by the evidence.
I:
Can there be a conspiracy when there was no agreement?
H:
It is elementary that an unlawful conspiracy may be and often is formed without simultaneous action or agreement on the part of the conspirators.
R:
From the beginning each of the distributors knew that the proposals were under consideration by the others. Therefore, there was a strong motive for concerted action. It taxes credulity to believe that the several distributors would have accepted an put into operation with substantial unanimity such far-reaching changes without some understanding that all were to join. The imposition of the restrictions was not a prerequisite to an unlawful conspiracy. It was enough that knowing that concerted action was contemplated and invited, the distributors gave their adherence to the scheme. Each was advised that the others were asked to participate; each knew that cooperation was essential and knowing it, all participated in the plan. It is elementary that an unlawful conspiracy may be and often is formed without simultaneous action or agreement on the part of the conspirators.
Notes:
In the absence of any direct evidence of agreement, the agreement can be inferred from the circumstances. There is no need for an express agreement. A tacit agreement is all that is necessary.
B. Other Characteristics of the Agreement
1. Common Design Pursued by Common Means
Conspiracy requires that the two persons pursued by their acts the same object, often by the same means, one performing one part or an act and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing.
2. Concurrence of Acts can not be Accidental
A conspiracy is not merely a concurrence of will, but a concurrence resulting from an agreement. If the concurrence is accidental, the conspiracy charge must fail.
3. Inference from Circumstances
An inference of the agreement is permissible only when the nature of the acts would logically require coordination and planning.
C. Overt Act Requirement
1. Common Law: Liability Without an Overt Act
At common law, the sole actus reus of conspiracy was the agreement itself. However, conspiracy consisted not merely in the intention, but in the agreement. So long as the design rested in intention only, it was not indictable. But the very plot was an act itself. The number an the compact gave weight and caused danger.
2. Statutes Requiring an Overt Act
American conspiracy statutes have typically included an overt act requirement. But it is not unusual for statutes to dispense with the over act requirement in the case of conspiracies to commit the most serious offenses.
• Why require an overt act? To manifest that the conspiracy is at work and is neither a project still resting solely in the minds of the conspirators nor a fully completed operation no longer in existence.
• What type of act is required? Generally conspiracy can be satisfied by acts that would be considered equivocal or merely preparatory in the law of attempt. This is because the essence of conspiracy is being combined for an unlawful purpose and it does not matter how far the act may be from accomplishing the purpose if done to effect it.
o Any act that effects the object of the conspiracy or that has a tendency to further the objective
o A single act by any one of the members is enough
3. MPC Approach: Traditional Position, §5.03
Any overt act or the act of agreeing itself.
1. The act of agreeing with another to commit a crime, like the act of soliciting, is concrete and unambiguous. Purpose must be relatively firm before the commitment involved in agreement is assumed.
2. If the agreement was to aid another to commit a crime or if it otherwise encouraged the crime’s commission, complicity would be established in the commission of the substantive offense. It would be anomalous to hold that conduct that would suffice to establish criminality, if something else is done by someone else, is insufficient if the crime is never consummated.
3. Agreeing crosses a clear threshold in arousing expectations and increases the likelihood that the offense will be committed.
III. MENS REA
People v. Lauria (California, 1967)
PH:
Δ indicted for conspiracy to commit prostitution. Set aside by trial court.
F:
Δ owned a telephone answering service. Three prostitutes were using Δ’s service for business purposes. A policewoman signed up for the service hinting broadly that she was a prostitute and making sufficient remarks for Δ to know that she was a prostitute. After being arrested, Δ admitted to knowing some of his customers were prostitutes.
I:
Is a provider of good or services who has knowledge of his product being used to commit a crime criminally responsible for conspiring to further such criminal activity?
H:
The intent of a supplier who knows of the criminal use to which his supplies are put to 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.
R:
Both the element of knowledge of the illegal use of the goods or services and the element of intent to further that use must be present in order to make the supplier a participant in a criminal conspiracy. Proof of knowledge is a question of fact. Intent can be proven by direct evidence or by an inference from the surrounding circumstances:
1. Intent may be inferred from knowledge, when the purveyor of legal goods for illegal use has acquired a stake in the venture.
In the present case, no proof was offered of inflated charges for the telephone answering service provided to the prostitutes.
2. Intent may be inferred from knowledge, when no legitimate use for the goods or services exists.
There is nothing in the furnishing of telephone answering service which would necessarily imply assistance in the performance of illegal activities.
3. Intent may be inferred from knowledge, when the volume of business is disproportionate to any legitimate demand, or when sales for illegal use amount to a high proportion of the seller’s total business.
No evidence of an unusual volume was presented.
Yet, there are cases when knowledge alone suffices to hold a defendant liable as a participant. A supplier who furnishes equipment which he knows will be used to commit a serious crime may be deemed from that knowledge alone to have intended to produce the result.
A. MPC Approach: Purpose §2.06 (3)
The MPC solution is to require purpose for both conspiracy and accomplice liability. Most states likewise require purpose in conspiracy cases, even when the object crime is a serious felony.
B. Corrupt Motive
A leading common law precedent followed by some courts held that to be criminal, a conspiracy must be animated by a “corrupt” motive or an intention to engage in conduct known to be wrongful. The confederation must be corrupt, as distinguished from a purpose simply to do the act prohibited, in ignorance of the prohibition.
This approach resembles a mistake of law.
IV. CONSPIRACY AS ACCESORIAL LIABILITY
A. Vicarious Criminal Liability for Crimes Within Scope of the Conspiracy
Pinkerton v. United States (Supreme Court, 1946)
PH:
Δ guilty of a count of conspiracy. Court of appeals reversed for lack of evidence.
F:
No evidence to show that Δ participated directly in the commission of the substantive offenses. The evidence showed that his brother did it. Δ was imputed the offenses because he was found to be a party to a conspiracy to commit the unlawful offenses. No other evidence was presented linking Δ to the substantive offenses.
I:
Does participation in a conspiracy impute on one party, absent more evidence, the substantive offenses of the others?
H:
When two persons enter into a conspiracy, each is vicariously criminally liable for all acts done by the co-conspirator in the course of the conspiracy.
R:
There is here a continuous conspiracy, with no evidence of the affirmative action on the part of Δ necessary to withdraw from it. Having joined in an unlawful scheme, as the offense has not been terminated or accomplished Δ is still offending. And so long as the partnership in crime continues the partners act for each other in carrying it forward. The criminal intent to act is established by the conspiracy. The unlawful agreement contemplated precisely what was done. The act done was in execution of the enterprise. An overt act is an essential ingredient of the crime of conspiracy. If that act is supplied by the act of one conspirator, the same or other acts in furtherance of the conspiracy are also attributable to the others.
B. Liability for Foreseeable Crimes Outside the Scope of Conspiracy
A co-conspirator may be liable for the commission of substantive criminal acts that are not within the scope of the conspiracy if they are reasonably foreseeable as the necessary or natural consequences of the conspiracy.
C. New Conspirator Liability
A defendant may be legally responsible for acts of co-conspirators prior to the defendant’s entry into the conspiracy in the sense that such acts may be used as evidence against him in the prosecution for the crime of conspiracy, whereas with regard to substantive offenses, a defendant cannot be retroactively liable for offenses.
D. MPC Approach §2.06 (3)
A majority of the states today reject the Pinkerton doctrine. In accord with the MPC, conspirators are liable for the substantive crimes of co-conspirators only when the strict conditions for accomplice liability are met. “Conspiracy may prove solicitation, aid or agreement to aid, etc.; it is evidentially important and may be sufficient for that purpose. But whether it suffices ought to be decided by the jurors; they should not be told that it establishes complicity as a matter of law.”
V. SCOPE OF CONSPIRACY: MULTIPLE CONSPIRACIES
To what extent is a defendant a conspirator with each of the persons involved in the larger criminal network? Generally, the closer a defendant is to the center of a conspiracy, the more likely it is that he wants there to be only one conspiracy (minimize exposure. One 10 yr. sentence as opposed to 2, 3, 5 . . .). On the other hand, the farther away a defendant is from the center, the more conspiracies he will want (spread the wealth).
A. Spoke and Wheel Situations
Kotteakos v. United States (Supreme Court, 1946)
F:
Simon Brown acted as broker with thirty-two defendants in placing loans to be used for purposes other than those stated in the applications. All defendants had transacted business with Brown, but no connection was shown between them other than that Brown had been the instrument in each instance for obtaining the loans. The pattern was of separate spokes meeting at a common center without the rim of the wheel to enclose the spokes.
I:
Whether petitioners suffered substantial prejudice by being convicted of a single conspiracy by evidence that proved not one conspiracy but some eight or more different ones executed through a common key figure.
H:
When one or more persons (hub) enter into a number of different transactions with various other persons (spokes) and the persons in each transaction are unconcerned with other transactions entered into by the “hub”, the situation will be characterized as involving a number of different conspiracies. The “hub” is a party to all of the conspiracies. The “spokes” are regarded as conspiring with the “hub” on their particular transaction.
R:
The view that all defendants were in a common adventure because all were involved in one or more transactions with Brown and they all had a similar purpose is wrong. It confuses the common purpose of a single enterprise with the several, though similar purposes of numerous separate adventures of like character. The trial court error also had the effect that the acts and statements of each defendant was imputed to the others and thus, an overt act that could have only affected one, or some, affected all of the defendants.
B. Chain Situations
1. Agreeing With Unknown Co-conspirators
Blumenthals v. United States (Supreme Court, 1947)
F:
Defendants 1 and 2 received shipment of whiskey from unidentified person and agreed to distribute illegally. They arranged with defendants 3 and 4, unknown to each other, to sell them portions of the shipment. 3 and 4 did not know about the unidentified supplier. All four defendants were convicted of a single conspiracy. Defendants claimed that there were two conspiracies.
I:
Can a defendant be convicted of conspiring with an unknown person?
H:
The parties to a conspiracy need not know the identity of each other member, nor need they even be aware of the number of persons involved. Thus, a particular member will be regarded as having conspired with all those he must have known were involved.
R:
The salesmen, defendants 3 and 4, knew or must have known that others unknown to them were sharing in so large a project. By their separate agreements, they became parties to the larger common plan, joined together by their knowledge of its essential features and broad scope, though not of its exact limits, and by their common goal.
2. Multiple Links Making Up One Conspiracy
United States v. Bruno (2d Circuit, 1939)
F:
Four groups of persons cooperate to bring narcotics into the U.S.: smugglers, middlemen and two groups of retailers. Defendants assert three separate conspiracies. Smugglers to middlemen and middlemen to each retailer. No evidence of commo or cooperation between smugglers and retailers or between retailers.
H:
If a series of overlapping transactions is shown, the situation will often be construed as involving only one overall agreement. Each transaction will be regarded as a “link” in an overall single “chain”, if the parties to each link transaction know that other links are involved and have a general interest in the success of the overall series of transactions.
R:
The smugglers knew that the middlemen must sell to retailers, and the retailers knew that the middlemen must buy from a smuggler. Thus, the conspirators at one end of the chain knew that the unlawful business could not stop with their buyers; and those at the other end knew that it had not begun with their sellers. Success of that part with which each was concerned was dependent upon the success of the whole.
3. Independent Links
If those involved in each link transaction are unaware that the other transactions are taking place, or know about other transactions but are indifferent as to whether they take place, the situation will be characterized as involving multiple and separate conspiracies. The participants in each link transaction are conspirators only with those involved in that particular link transaction.
C. MPC Approach §5.03 (1) (2) (3)
The MPC focuses on the culpability of the individual actor. It limits the scope of the actor’s conspiracy to those crimes that he had the purpose of promoting or facilitating and to those with whom he agreed. An exception is made when the actor knows that the crime he conspired to commit with A is also the object of a conspiracy between A and B.
The conspiracy is a single one despite a multiplicity of criminal objectives as long as such crimes are the object of the same agreement.
SELF-DEFENSE
I. JUSTIFICATIONS AND EXCUSES
II. JUSTIFICATION: PROTECTION OF LIFE, PERSON AND PROPERTY
A. Self-Defense
1. General Requirements
(i) Unlawful Force
(ii) Imminent Threat
(iii) Threat of Bodily Harm
(iv) Reasonable Belief That Defense is Necessary
(v) Force Used Was Necessary to Prevent Harm
(vi) Deadly Force Requirement
2. Reasonable Belief: Subjective vs. Objective Test
People v. Goetz
3. Battered Women: Imperfect Self-Defense
(i) Reasonableness
(ii) Imminence
State v. Norman
iii) Nonconfrontational Self-Defense
(iv) Getting Another to Kill
(v) Defense of Another
(vi) MPC Approach §3.04 (1)
4. Other Issues on Self-Defense
(i) Limits on the Use of Deadly Force
(ii) Motive
(iii) Risk of Injury to Others
(iv) Burden of Proof
B. Retreat
1. MPC Approach §3.04 (2) (b) (ii)
State v. Abbott
2. Traditional View
3. Castle Exception
C. Right of Aggressor to Self-Defense
1. General Rule
United States v. Peterson
2. Exception: Withdrawal by Aggressor
3. Exception: Nondeadly Aggressor Met With Deadly Force
4. MPC Approach §3.04
D. Protection of Property
People v. Ceballos
1. Property
(i) Deadly Force
(ii) Reasonable Nondeadly Force
(iii) Trap Guns
2. Dwelling
(i) Common Law
(ii) Modern View
3. MPC Approach §3.06 (3) (d) (ii) (2)
III. EXCUSES
A. Duress
State v. Toscano
1. Common Law
2. MPC
3. Imminence
4. Character of the Threat
5. Objective Standard
6. Defense to Murder
SELF-DEFENSE
I. JUSTIFICATIONS AND EXCUSES
Three types of defenses in two categories:
• Internal, or negative defenses: negate the presence of AR or MR
• External or affirmative defenses:
o Justification –. defendant accepts the responsibility but denies it was bad. Defendant made the right choice under the circumstances. e.g. self-defense.
o Excuse – defendant admits it was bad but denies responsibility. e.g. provocation.
II. JUSTIFICATION: PROTECTION OF LIFE, PERSON AND PROPERTY
A. Self-Defense
1. General Requirements
(i) Unlawful Force
Defendant must reasonably believe the threatened harm would be unlawful. Two issues: can force be used to resist an unlawful arrest and can an initial aggressor claim the defense.
(ii) Imminent Threat
That the harm would be inflicted immediately. Court must consider whether the threatening person was actually present and, if so, whether that person appeared willing and able to injure the defendant.
(iii) Threat of Bodily Harm
Reasonably believed that she was threatened with physical harm.
(iv) Reasonable Belief That Defense is Necessary
An honest and reasonable belief is enough; the defense is available even though it turns out that the belief was wrong and there was, in fact, no actual need to use force in self-defense.
(v) Force Used Was Necessary to Prevent Harm
Defendant must have reasonably believed that the threatened harm was such as to require the defensive force actually used.
(vi) Deadly Force Requirement
To use deadly force in self-defense, the defendant must have reasonably believed that the other person was about to use deadly force against him.
2. Reasonable Belief: Subjective vs. Objective Test
People v. Goetz (New York, 1986)
F:
Defendant shot four black youths after one of them asked him for $5. Defendant had suffered a previous mugging injury and had twice warded-off assailants with the gun. He claimed to be afraid of being maimed. He knew youths had no weapons. He surveyed the scene and planned his shooting strategy before commencing. He double-tapped one of the youths just to make sure he was hit.
I:
Whether a defendant’s “reasonable belief” that he needs to use physical force to defend himself from what defendant “reasonably believes” to be the use or imminent use of unlawful physical force against him is a belief reasonable to a man in defendant’s situation or is a belief reasonable to the defendant himself.
H:
The legislature meant to retain an objective element as part of any provision on self-defense. Interpreting the statue to require only that the defendant’s belief was reasonable to him would hardly be different from requiring only a genuine and honest belief. In either case, the defendant’s own perceptions could completely exonerate him from criminal liability..
R:
To interpret reasonable belief as “reasonable to him”, to the defendant, is to misconstrue the intent of the legislature to retain an objective element as par of any provision authorizing the use of deadly physical force. The provisions do not require that an actor’s belief as to the intention of another person be correct in order to use deadly force, but they do require that the belief comport with an objective notion of reasonableness.
The MPC provides that if the defendant’s belief was wrong, and was recklessly or negligently formed, he may be convicted of the type of homicide charge requiring only a reckless or negligent criminal intent. Under the MPC the defendant need only show that he believed that the use of deadly force was necessary to protect himself against death, serious bodily injury, kidnapping or forcible sexual intercourse.
New York did not follow the MPC in equating a mistake as to the need to use deadly force with a mistake negating an element of a crime. Instead, New York dropped the MPC’s subjective standard for one of “reasonable belief” thus providing a defendant either a complete defense or no defense at all.
The determination of reasonableness must be based on the circumstances facing a defendant in his situation. These include not just the physical movements of the assailant, but also any knowledge the defendant had about that person, physical attributes, defendant’s prior experiences . . .
Notes:
MPC: “believes” = honest and genuine belief = from defendant’s perspective = subjective. NY injects a measure of subjectivity a la MPC by basing reasonableness on the circumstances facing a defendant or in the defendant’s situation. If a subjective test had been used, Goetz could have used the race card. Pure objective would not have allowed consideration of any circumstances. Reasonable belief works out to be a sort of middle ground. Goetz is the usual approach to self-defense.
3. Battered Women: Imperfect Self-Defense
(i) Reasonableness
Most courts agree that the syndrome is relevant to reasonableness, but only in a limited way. These courts hold that the jury must consider defendant’s situation and knowledge through testimony about the battering syndrome and its effect on the woman. A battered woman’s experience makes her a better judge to predict likely extent and imminence. However, the ultimate question remains whether a reasonable person, not a reasonable battered woman, would believe in the need to kill to prevent imminent harm.
Two alternative approaches in the minority:
• Assuming the physical and psychological properties peculiar to the accused.
• Weigh the evidence in light of what a reasonable person suffering from battering syndrome would have perceived.
(ii) Imminence
State v. Norman (North Carolina, 1989)
F:
Battered woman with 25-year history of abuse inquires about filing charges and committing the husband to a mental health institution. When husband finds out he threatens to cut her throat off. When she goes to apply for welfare, the husband drags her from the welfare office and beats her. That night she shoots her husband three times. Woman claimed she suffered from battered wife syndrome and thus believed she could not escape nor expect help from others. Woman claimed error because trial judge had not instructed on a possible verdict of acquittal by reason of perfect self-defense.
I:
Whether evidence of battered wife syndrome can constitute a perfect self-defense?
R:
Both perfect and imperfect self-defense require a belief that it was necessary to kill. Only if the defendant had a reasonable belief that death or great bodily harm was imminent can the homicide be necessary. Imminent has been defined as immediate danger such as cannot be guarded against by obtaining assistance. In the instant case, defendant thought death was inevitable. Inevitable does not equate to imminent because it is devoid of a time frame. Indefinite fears of what might happen in the future do not establish a fear of imminent death or great bodily harm. Predictions of future assaults to justify the defendant’s use of deadly force in this case would be entirely speculative, because there was no evidence the husband had ever inflicted any life-threatening harm on her.
(iii) Nonconfrontational Self-Defense
Most courts remain unwilling to admit battered-spouse evidence or to permit jury instructions on the possibility of legitimate self-defense. Some courts, however, have held that the need for lethal self-defense remains a jury issue even in a sleeping-victim case.
(iv) Getting Another to Kill
To date, all cases addressing the issue have ruled the woman’s claim of self-defense untenable.
(v) Defense of Another
The widely accepted rule is that someone who comes to the aid of a person in peril can use deadly force to prevent the attack, under the same circumstances that would justify the use of deadly force by the endangered person herself.
Alter Ego Rule: if you stand in the shoes of a person who has a right of self-defense you can defend him.
(vi) MPC Approach §3.04 (1)
The MPC relaxed the imminence requirement, providing that it is sufficient if the actor reasonably believed that the use of defensive force was “immediately necessary.”
4. Other Issues on Self-Defense
(i) Limits on the Use of Deadly Force
Common Law: no use of deadly force to prevent bodily injury or offensive physical contact. Deadly force against a deadly threat only.
MPC §3.04 (2): deadly force against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat.
(ii) Motive
Under MPC and existing American Law a necessary condition for claiming self-defense is that the defendant actually believed in the necessity to use defensive force.
(iii) Risk of Injury to Others
Common Law: if circumstances excuse the use of deadly force, the emergency will excuse the defendant if he unintentionally kills or injures a third person.
MPC §3.09: if the defendant in using force or self-defense recklessly or negligently injures or creates a risk to injury to innocent persons the defendant is not excused.
(iv) Burden of Proof
Once the issue is raised by the evidence, most jurisdiction put the BOP on the prosecution to disprove self-defense beyond a reasonable doubt.
B. Retreat
1. MPC Approach §3.04 (2) (b) (ii)
State v. Abbott (New Jersey, 1961)
F:
Abbott gets into a fist fight with neighbor’s son (aggressor). Father comes over with hatchet and joins the fight. Mother comes over with carving knife and large fork. Son, father and mother were hit with the hatchet. Son suffered severe injuries.
I:
Whether one that is not the aggressor nor a party to a mutual combat must retreat?
R:
Pro-retreaters believe that it is better to retreat than to take the life of another needlessly. Anti-retreaters say the manly thing is to hold one’s ground and thus society should not demand what is unrealistic. MPC embraces retreat. Under the MPC
1. The issue of retreat arises only if the defendant resorted to deadly force. A deadly force is one known to create a substantial risk of death or serious bodily harm. The issue is not the force defended against, but the force used. If defendant does not use deadly force he may hold his ground.
2. Deadly force is not justifiable if the actor knows that he can avoid using deadly force with complete safety by retreating. Defendant must know he can do so with complete safety. He need not risk injury by retreating. Not a hindsight inquiry.
2. Traditional View
Common Law England: strict duty to retreat. Deadly force ok only after exhausting every chance to flee when defendant had his back against the wall.
XIX Century America (Wild West): a true man who is without fault is not obliged to fly from an assailant.
3. Castle Exception
At home: a defendant does not have to retreat and can use deadly force when attacked at home. The exception applies not just to intruders but to co-occupants even if they are relatives (MPC endorses this view).
At work: no duty to retreat unless the attacker is a co-worker.
C. Right of Aggressor to Self-Defense
1. General Rule
An initial aggressor cannot use force to defend himself. By beginning the altercation he forfeits his right to self-defense.
United States v. Peterson (D.C., 1973)
F:
Keitt went to the back of Peterson’s house to remove the wipers off Peterson’s wrecked car. Peterson came out and after a verbal exchange went into the house and came out with a pistol threatening to shoot. Keitt was by now seated inside the getaway car. Keitt got out, took out a lug wrench and advanced towards Peterson with the wrench in a raised position. Peterson shot Keitt in the face and killed him.
H:
Self-defense may not be claimed by one who deliberately places himself in a position where he has reason to believe “his presence . . . would provoke trouble.”
R:
A claim of self-defense is not available to one who self-generates a necessity to kill. Self-defense is reserved for those free from fault in the difficulty. Thus, one who is an aggressor in a conflict culminating in death cannot invoke self defense. Only if he communicates to his adversary his intent to withdraw in good faith and attempts to do so is his right to self-defense restored.
2. Exception: Withdrawal by Aggressor
An aggressor regains the right to act in self-defense by withdrawing from the affray and notifying his adversary of the withdrawal.
3. Exception: Nondeadly Aggressor Met With Deadly Force
The initial aggressor uses only non-lethal force and is met with a lethal response. A few states allow the aggressor to regain his right of self-defense provided he exhausts every reasonable means to escape. Most jurisdictions tend to deny on the grounds that self-defense is only available to a person who is free from fault.
4. MPC Approach §3.04
If the victim goes beyond necessity by answering moderate force with deadly force, and if there is no opportunity for withdrawal and safe retreat, the fact that A was the initial aggressor does not warrant the denial to A of the right of self-defense.
D. Protection of Property
People v. Ceballos (California, 1974)
F:
Some tools were stolen from defendant’s home. Defendant noticed that the lock on his garage doors appeared tampered with. Defendant set-up a trap in the garage with a pistol so that the pistol would fire if the garage door was opened. A fifteen-year old boy was hit with a bullet in the face as he was trying to enter the garage to steal.
R:
Defendant claims that a person is excepted from criminal liability for death or injuries caused by a mechanical device if the person would have been justified in taking the life or inflicting the injury had the person been present. This court declines to adopt this rule in criminal cases because liability depends on fortuitous results. Even if the rule were applied, defendant was not justified in shooting the boy. The common law permitted killing to prevent some atrocious felony attempted to be committed by force. The character of the felony and manner of its perpetration were to be such as to create a fear of great bodily harm. Examples of forcible and atrocious crimes are murder, mayhem, rape and robbery. Due to the wide scope of burglary, it cannot be said that under all circumstances burglary constitutes a forcible and atrocious crime. Where the character and manner of the burglary do not reasonably create a fear of great bodily harm, there is no cause for using deadly force. In the instant case, the burglary did not threaten death or serous bodily harm because the defendant was not home.
The defendant also contends that under the Civil Code he was justified in using any necessary force to protect from wrongful injury . . . the property of oneself. This section must be interpreted through the eyes of the common law. At common law, deadly force could not be used solely for the protection of property. An exception was made for dwellings. Deadly force could be used to protect a dwelling against dispossession, burning or if reasonably necessary to protect against a burglar. Here there was no dispossession, no burning, and the burglary was already proven not to have warranted deadly force.
1. Property
(i) Deadly Force
Deadly force ordinarily can never be used merely to defend one’s property. However, deadly force may be justified when the defendant’s reasonable use of force im protection of property is met with an attack threatening imminent serious bodily harm.
(ii) Reasonable Nondeadly Force
Nondeadly force may be used where it reasonably appears necessary to prevent or terminate an unlawful intrusion onto, or interference with, property in the defendant’s possession. Usually a request to desist must be made before using any force unless it would be futile or dangerous to do so.
(iii) Trap Guns
Common Law: do indirectly what you could do directly.
Modern View: no.
2. Dwelling
(i) Common Law
Deadly force could be used to protect a dwelling against dispossession, burning or if reasonably necessary to protect against a burglar.
(ii) Modern View
Deadly force may be used if the defendant reasonably believes the intruder intends to commit an atrocious felony, that is a felony causing fear of death or serious bodily harm.
3. MPC Approach §3.06 (3) (d) (ii) (2)
MPC permits the use of deadly force when the use of force other than deadly force to prevent the commission or the consummation of the crime would expose the actor to substantial danger of serious bodily harm.
III. EXCUSES
A. Duress
State v. Toscano (New Jersey, 1977)
F:
Toscano was convicted of conspiring to obtain money by false pretenses. Toscano agreed to fill out false medical reports in a conspiracy to stage accidents in public places and obtain payment in settlement of fictitious injuries. Toscano asserted that he capitulated to the architect of the conspiracy because he was fearful for his wife’s and his own bodily safety. Defendant claimed duress. The trial judge did not charge the jury on the defense of duress because duress is only applicable where there is an allegation that an act was committed in response to a threat of present, imminent and impending death or serious bodily harm.
R:
At common law duress was recognized only when the coercion involved a use of a threat of harm which was present, imminent and impending death or serious bodily harm. Threats of slight injury or threats against property were not coercive enough. Threats of future harm were not considered sufficient either because the defendant had a duty to escape or seek assistance. The threat could be against a third person, not necessarily the defendant.
The problem with a requirement of immediateness is that it is possible that authorities might not be able to prevent a threat of future harm from eventually being carried out.
The MPC abandoned the common law’s “heroism standard” and instead focused on whether the standard imposed would be one with which “normal members of the community could comply.” Thus, under the MPC duress is a defense to a crime other than murder if the defendant engaged in conduct because he was coerced to do so by the use of, or threat to use, unlawful force against his person or the person of another which a person of reasonable firmness in his situation would have been unable to resist.
1. Common Law
• Present and immediate threat.
• Risk of death or serious bodily harm.
• Reasonable person cannot resist.
• No defense to murder.
2. MPC
• Threat of unlawful force.
• Against defendant or another.
• Reasonable person in situation.
3. Imminence
Common Law: the common law treated imminence as an absolute prerequisite.
MPC: MPC §2.09 treats imminence as one factor to be weighed by the jury in determining whether the defendant’s conduct was of “a person of reasonable firmness in his situation.”
Modern View: the majority of recent statutory revisions have rejected the MPC approach and preserved some requirement that the threatened harm be “immediate”, “imminent” or “instant”.
4. Character of the Threat
Common Law: at common law the threat had to be one of death or serious bodily harm.
MPC: the MPC requires a threat of unlawful force against the person (wouldn’t an ordinary person yield to a threat of bankruptcy or having his house burned down?)
5. Objective Standard
MPC: lack of fortitude or individual capacity to make the right moral choices is not a defense.
Threats of force that a person of reasonable firmness in the defendant’s situation would have been unable to resist” is a defense. Account is taken of the actor’ situation.
6. Defense to Murder
Common Law: duress defense is inapplicable in prosecutions for murder. Why? Is there any limit to the number of people you may kill to save your own skin?
MPC: exclusion of duress as defense rejected. Why? The law should not demand a degree of heroism of which the ordinary person is, by definition, incapable.
INTOXICATION
I. COMMON LAW
A. Voluntary Intoxication
1. Mens Rea Defense
2. Special Rule for Homicide
3. Voluntary Act
4. Intoxicated-Induced Insanity
B. Involuntary Intoxication
1. Definition
2. Availability of the Defense
II. MPC
A. General Rule
B. Exculpation Based on Intoxication
1. Mens Rea Defense
2. Insanity
INTOXICATION
I. COMMON LAW
A. Voluntary Intoxication
Voluntary intoxication does not excuse criminal conduct; however, in limited circumstances, intoxication may negate the necessary state of mind for a given offense and thus prove exculpatory. Intoxication resulting from alcoholism or drug addiction is considered voluntary under common law principles.
1. Mens Rea Defense
While there are several approaches to evaluating the mens rea portion of criminal activity involving an intoxicated defendant, the most common approach distinguishes between general-intent and specific-intent crimes. Under this common law approach, voluntary intoxication is not a defense to general-intent crimes. Voluntary intoxication is a defense to specific intent crimes.
2. Special Rule for Homicide
Two states, Virginia and Pennsylvania, limit the defense of voluntary intoxication to first-degree murder prosecutions. In states that recognize the defense in all specific-intent crimes, if the crime of “murder” is divided into degrees, a defendant may generally introduce evidence that his intoxication prevented him from being able to form the requisite state of mind for first-degree murder.
3. Voluntary Act
Where a defendant’s intoxication was so severe as to render him unconscious at the time of the commission of the crime, some courts have barred a defense based on unconsciousness if such condition resulted from the voluntary consumption of alcohol or drugs. Others courts allow the defendant to argue that the criminal act was not a voluntary one due to his unconscious state, but only in defense to specific-intent offenses.
4. Intoxicated-Induced Insanity
The common law does not recognize a defense of temporary insanity based on intoxication where the defendant’s intoxication was voluntary. Some jurisdictions do recognize a defense based on “fixed” insanity, a condition which results from long-term use of drugs or alcohol
B. Involuntary Intoxication
1. Definition
Intoxication is “involuntary” if the defendant is not to blame for becoming intoxicated. It may result from:
• coerced intoxication;
• intoxication by innocent mistake as to the nature of the substance being consumed;
• unexpected intoxication from a prescribed medication provided the defendant did not purposely take more than the prescribed dosage; or
• “pathological intoxication,” a temporary psychotic reaction, often manifested by violence, which is triggered by consumption of alcohol by a person with a pre-disposing mental or physical condition, e.g., temporal lobe epilepsy, encephalitis, or a metabolic disturbance. The defense only applies if the defendant had no reason to know that he was susceptible to such a reaction.
2. Availability of the Defense
Under common law, a defendant found to have been involuntarily intoxicated may avail himself of the defense of temporary insanity. Furthermore, one who committed an offense while involuntarily intoxicated can otherwise seek acquittal by asserting the mens rea defense.
II. MPC
A. General Rule
Model Penal Code § 2.08(4)–(5) distinguishes three types of intoxication:
(1) voluntary (“self-induced”) intoxication;
(2) pathological intoxication; and
(3) involuntary (“non-self-induced”) intoxication.
B. Exculpation Based on Intoxication
1. Mens Rea Defense
Any form of intoxication is a defense to criminal conduct if it negates an element of the offense. [MPC § 2.08(1)] Since the Code does not distinguish between “general intent” and “specific intent” offenses, the mens rea defense is broadly applied, with one exception. In the case of crimes defined in terms of recklessness, a person acts “recklessly” as to an element of the crime if, as the result of the self-induced intoxication, he was not conscious of a risk of which he would have been aware had he not been intoxicated. [MPC § 2.08(2)]
2. Insanity
Pathological and involuntary intoxication are affirmatives defenses, if the intoxication causes the defendant to suffer from a mental condition comparable to that which constitutes insanity under the Code. [MPC § 2.08(4)]
INSANITY
I. M’NAGHTEN TEST – COGNITIVE TEST
A. Definition of Nature and Quality of Act
B. Definition of Wrong
1. Legal Wrong Approach
(i) Deific Decree Rule
2. Moral Wrong Approach
II. IRRESISTIBLE IMPULSE TEST – LOSS OF CONTROL TEST
III. MPC TEST – COGNITIVE / LOSS OF CONTROL TEST
INSANITY
“Insanity” is a legal term that presupposes a medical illness or defect but is not synonymous with “mental illness,” “mental disorder,” and “mental disease or defect.” “Mental illness” is a more encompassing term than “insanity,” and thus, a person can be mentally ill – medically speaking – without legally being insane. Five tests of insanity have been applied at one time or another.
I. M’NAGHTEN TEST – COGNITIVE TEST
The M’Naghten rule focuses exclusively on cognitive disability. Under this rule, a person is insane if, at the time of the criminal act he had the mens rea but he was laboring under such a defect of reason, arising from a disease of the mind, that he
(1) did not know the nature and quality of the act that he was doing; or
(2) if he did know it, he did not know that what he was doing was wrong.
This test requires total cognitive disability and does not allow for degrees of incapacity and nor does it recognize volitional incapacity in which a person is aware that conduct is wrong yet cannot control his behavior.
A. Definition of Nature and Quality of Act
Most jurisdictions hold that a defendant does not know the nature and qualify of his act only if he did not understand its physical nature and consequences. A minority of courts define this as requiring a lack of true insight into the nature of the conduct.
B. Definition of Wrong
1. Legal Wrong Approach
A defendant is to be convicted unless his impairment caused him to believe his action was legally permissible.
(i) Deific Decree Rule
A defendant will be acquitted who believes his action was ordained by God as a result of a direct command from God.
2. Moral Wrong Approach
Some argue that wrong should mean morally wrong. Thus a defendant should be acquitted if he believes his action was morally acceptable even if he also recognized that it was legally impermissible. Those few jurisdictions that take this approach limit it by requiring that the defendant believe his action was morally acceptable according to general societal standards and not his own subjective standards.
II. IRRESISTIBLE IMPULSE TEST – LOSS OF CONTROL TEST
Some jurisdictions have broadened the scope of M’Naghten to include mental illnesses that affect volitional capacity. Generally speaking, a person is insane if, at the time of the offense:
(1) he acted from an “irresistible and uncontrollable impulse”;
(2) he was unable to choose between the right and wrong behavior;
(3) his will was destroyed such that his actions were beyond his control.
(4) policeman at the elbow.
III. MPC TEST – COGNITIVE / LOSS OF CONTROL TEST
The Model Penal Code provides that a person is not responsible for his criminal conduct if, at the time of the conduct, as the result of a mental disease or defect, he lacked substantial capacity to:
(1) appreciate the “criminality” (or “wrongfulness”) of his conduct; or
(2) to conform his conduct to the requirements of the law.
This test does not require total mental incapacity.
DIMINISHED CAPACITY
I. GENERALLY
“Diminished capacity” refers to a defendant’s abnormal mental condition, short of insanity. There are two forms of diminished capacity: mens rea diminished capacity and “partial responsibility” diminished capacity.
II. MENS REA DEFENSE
A. General Rule
Evidence of mental abnormality is not offered by the defendant to partially or fully excuse his conduct, but rather as evidence to negate an element of the crime charged, almost always the mens rea element. In such circumstances, diminished capacity thus functions as a failure-of-proof defense.
B. Scope of Defense
States are divided regarding the extent to which evidence of diminished capacity may be introduced for the purpose of negating the mens rea of an offense. States that follow the Model Penal Code [§ 4.02(1)] permit such evidence, when relevant, to negate the mens rea of any crime. Other states limit the admissibility of such evidence to some or all specific-intent offenses. A third group bars “diminished capacity” evidence in prosecutions of all offenses. And some jurisdictions bar “diminished capacity” evidence in all prosecutions whether the crime at issue is “specific intent” or “general intent.”
III PARTIAL RESPONSIBILITY DEFENSE
A. General Rule
This form of diminished capacity partially excuses or mitigates a defendant’s guilt even if he has the requisite mens rea for the crime. It is recognized now in only a few states, and only for the crime of murder, to mitigate the homicide to manslaughter.
B. The Model Penal Code Approach
The Model Penal Code provides that a homicide that would otherwise constitute murder is manslaughter if it is committed as the result of “extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.” The reasonableness of the defendant’s explanation or excuse for the “extreme mental or emotional disturbance” (EMED) is “determined from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be.”[MPC § 210.3(1)(b)] At least two states appear to recognize the latter version of the defense
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Act “ – “
Act “ + “
Super-recklessness
100% objective test
Judicial gate-keeping
Loss of control tests
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