Criminal Law, Kreitzberg Fall 2006



Criminal Law, Kreitzberg Fall 2006

Actus Reus

Requires:

1) An act

2) Volition (I can’t hit someone with your arm and find actus reus)

OR

1) Omission of reasonable and proper acts

2) Duty to act

a. Relationship

b. Statute

c. Person has created the danger

d. Medical treatment

e. Voluntarily take on duty

voluntary act

Martin v. State (1944)- Establishes a voluntary act as a requisite for any crime (cops drag drunk guy out of his house onto a highway)

State v. Utter (1971)- Evidence that one is in an unconscious or automatistic state at the time of the act may get you off the hook for volition (war time veteran had been drinking, son walks in, says “dad don’t” and gets stabbed)

-Voluntary drinking maybe

Desino- If one has a condition that renders their behavior unreasonable, e.g. someone with epilepsy driving, driving may be the voluntary act

Model Penal Code-the following are not voluntary acts:

1. Reflex or convulsion

2. Unconscious or sleeping

3. Hypnosis

4. Some conscious or habitual act not otherwise the product of the actor’s effort or determination

Policy reasons: you can’t deter an involuntary act, when the punishment is disproportional to the crime we have cruel and unusual punishment in violation of the 8th amendment

omission in light of a duty

People v. Beardsley (1907)- Generally, one does not have a legal duty to act to save another, and a moral duty to act does not create a legal duty (mistress comes over for the weekend, takes some morphine, dies after guy fails to summon doctor)

Barber v. Superior Court (1983)- a physician generally has a duty to take life saving measures, however he has no duty to act if treatment is ineffective (guy is in a vegetative state, take him off life support with the consent of the family)

Policy reasons: difficult to ascertain at what point danger to the rescuer becomes too great to hold him criminally responsible, we should spend time hunting down people who act evilly, rather than people who do nothing at all

Mens Rea

1) Intent

2) Reckless with regard to whether thing happens or not

3) Criminal Negligence

intent

1. Specific intent: Statute will say something with intent to something (e.g. possession with intent to distribute is a specific intent statute)

***N. must be intent to do the actual thing, or be reckless as to whether it happens or not***

2. General intent: Morally blameworthy state of mind where criminal intends the actus reus, but not the specific result (e.g. I become intoxicated near my gun to the point where I don’t know what’s going on at all)

3. Strict Liability: Exception to mens rea requirement. No intent required to be considered a crime (e.g. statutory rape that doesn’t require intent)

Regina v. Cunningham (1957)- General intent can only be found if the consequence could have been foreseen, i.e. if criminal was reckless (guy steals gas meter and the fumes kill an old woman)

Model penal code, classifications of intent:

1. Purposeful – a conscious object to perform an act of the nature or to cause such result.

2. Knowledge – awareness that requisite external circumstances exist; could require actual knowledge.

3. Recklessness – involves conscious risk creation; acting with a probability, less than substantial certainty, that a substantial, unjustifiable risk exists.

a. A person should have been aware.

b. Court must decide if the D’s disregard of the risk involved a gross deviation from the standards of conduct that a law-abiding person would have observed in the same situation.

4. Negligence –does not involve a state of awareness; a person inadvertently creates a substantial and unjustifiable risk of which he is not aware.

a. Lesser degree of intent than recklessness.

strict liability (No mens rea element)

Garnett v. State- Mistake of fact does not get you off the hook for a strict liability offense (mildly retarded guy has consensual sex with this girl and tries to claim mistake of fact as to her age)

Policy reasons: usually arises in public welfare offenses, such as minor violation of liqor law, motor vehicle violations, and statutory rape because we want to protect children

Criticized because: one cannot be deterred from something you don’t know about, and it’s wrong to sentence someone who isn’t morally culpable

inferred intent

People v. Conley- We can infer that one intends the “practically certain” consequences of one’s actions (throws a wine bottle at a guy’s face, guy gets permanently disabled, Conley argues I didn’t mean to permanently disable him)

Policy reasons: we can’t fathom the workings of someone’s inner mind, so we must infer intent from the circumstances

willful blindness

Model penal code: if there is knowledge that a high probability exists, we’ll hold that that person had knowledge

State v. Nations- MPC would hold this person liable because of the high probability, but MI required actual knowledge (Strip club owner failed to check underage girl’s ID)

Defenses to mens rea

mistake of fact and mistake of law

People v. Navarro- A mistake of fact may negate mens rea. Because it was a specific intent crime, his unreasonable belief gets him off the hook (guy takes wooden beams thinking they’re abandoned property)

Perkins on Criminal Law says:

• For specific intent statutes, a good faith belief that you were not committing a crime, however unreasonable gets you off the hook

• For general intent statutes, a good faith belief that you were not committing a crime must be reasonable to get you off the hook

People v. Marrero- A mistake of law is not a defense unless one reasonably relied upon an official interpretation (he thought he could carry a gun, being a federal CT prison guard)

Mistake of fact, versus mistake of law: the former is a defense, the latter is not

Policy reasons: if mistake of law were a defense, it would encourage people to not gain good understanding of what the law is, punishing someone who by mistake of fact is unaware he is committing a crime would defeat the deterrence purpose of punishment

Murder

1. Unlawful killing with

2. Malice aforethought

a. Express malice

i. Intent to kill or intent to cause extreme bodily injury

b. Implied Malice

i. Depraved heart murder (actions exhibit a wanton and willful disregard)

CA 1st degree is murder perpetrated by weapon, poison, lying in wait, torture, willful deliberate and premeditated , or committed while perpetrating a felony, with malice. 2nd degree is everything else.

premeditation and deliberation

To determine whether it’s present or not, look at

1. Planning

2. Motive

3. Method

State v. Schrader- premeditation need not exist for a particular length of time, Schrader decided premeditation can be only for an instant, however it was reversed by a later opinion (state v. Guthrie) stating that a period of reflection must be present after the formation of intent for premeditation to take place

State v. Midget- Need specific intent to kill or reason to think it would lead to death (convicted of 2nd degree murder for beating kid who consequently died)

n. 2nd degree murder is contained within 1st degree

State v. Forrest- guy shoots his almost dead dad in the hospital, court found 1st degree murder, usually use circumstances to infer 1. want of provocation, 2. conduct and statements of D before and after act, 3. threats and declarations made, 4. ill will or previous difficulties between parties, 5. dealing of lethal blows after person is dead, 6. evidence that killing was done in a brutal manner

Provocation as a defense to murder:

Rule of provocation:

1. Legally adequate provocation

2. Reasonable person? (age, gender?)

3. Killing in the heat of passion

4. Sudden heat of passion (i.e. no time to cool off)

5. Causal connection between the provocation and the killing

legally adequate provocation

Girouard v. State- Words generally not sufficient provocation for this defense, things that have historically been recognized are adultery, mutual combat, assault and battery, illegal arrest, injury to family (wife orally abused/taunted husband, court found that there was no adequate provocation because her words were not such that they would inflame the passion of a reasonable man and he would kill her)

reasonable person standard

Director of Public Prosecutions v. Camplin- guy was sodomized, person laughed at him, guy kills person with a pan. Reasonable 15 year old or reasonable adult? Court says reasonable 15 year old (whether a reasonable person similarly situated)

extreme emotional disturbance defense

People v. Casassa- Extreme emotional disturbance must be objectively reasonable, not particular to the defendant. defense to second degree murder under penal law says ‘if the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse’. Didn’t work in this case because D’s reaction to the series of events was unreasonable.

malice

1. Express malice- intent to kill

2. Implied malice- abandoned and malignant heart/reckless disregard for human life

reckless disregard for human life

Berry v. Superior Court- Implied malice for murder, D’s fighting dog killed a child, the fact that the dog was chained up in an area that someone could easily get to, and the fact that he shared property with the child’s family was a problem

criminal negligence

State v. Hernandez- guy was driving drunk, killed someone, had many bumper stickers on his car that condoned drinking. Majority didn’t allow the bumper stickers into evidence, dissenting opinion says they should have been admitted because it speaks to whether he failed to perceive the risk of drinking and driving based on a lack of knowledge

Recklessness according to MPC:

Acts negligently creates a substantial and unjustifiable risk of which he ought to be aware. Liable if, given the nature and degree of the risk, his failure to perceive it, considering the nature and purpose of the actor’s conduct and the circumstances known to him, a gross deviation from the care that would be exercise by a reasonable person in his circumstances.

State v. Williams- Indian baby case, Court found guilty of manslaughter because the statute only required ordinary negligence

Felony Murder- killing perpetuated in the commission or attempt to commit a felony

2 approaches:

1. Agency (majority)-murder must have been perpetrated by a co-felon

2. Set in motion (minority)-liable for killing perpetrated by any person related to the felony (e.g. the store clerk you’re robbing)

Look to:

1. Who did the killing

2. Who died

3. Proximate cause/provocative act

State v. Sophophone- D cannot be criminally liable for the lawful killing of another perpetrated by a third party (ran away from cops after burglary, friend got shot by cop, being prosecuted for his friend’s murder, 1st degree)

People v. Burroughs- Court held no felony murder because unlicensed practice of medicine is not an inherently dangerous felony, and because the prior decision upholding felony murder should be construed as narrowly as possible (2nd degree felony murder, guy doing unlicensed practice of law and causes cancer patient to die of hemorrhage)

Capital Punishment

Gregg v. Georgia- How to make a capital punishment statute constitutional

1. Bifurcated trial (Decision phase and penalty phase gives jury discretion, but not without guidance)

2. Aggravating circumstances set out in statute

3. Automatic appeal for which counsel is provided

4. Limited jury discretion

5. Proportionality review

McCleskey v. Kemp- Must show an abuse of discretion or discrimination in your particular case (D offered strong statistical evidence that black victims/defendants made a significant difference both in prosecutorial decisions and in sentencing) –impact of race is “real and in eradicable”

Payne v. Tennessee (1991) Impact evidence does not violate the 8th amendment, and may be introduced to help jury decide about the death penalty if the state allows it (inebriated guy kills mother and small child, her other child, although severely wounded, survives and the state wants the jury to consider the murder’s effect on him)

Tison v. Arizona (1987)- Death penalty may be sought for felony murder charges so long as felony involvement was done with mental state required for malice aforethought murder (sons help dad break out of prison with a bunch of guns, two of them hail a car to steal on the side of the road and shoot the people inside, the others are given the death penalty under felony murder theory. Court holds no 8th amendment violation)

n. Under Atkins v. Virginia (2002), execution of a mentally retarded person violates the 8th amendment (execution of minors does not violate it per se, but age would be considered as a mitigating factor)

Rape

n. prevention of physical harm, emotional/psychological harm, right to choose, harm to one’s autonomy

Force:

State v. Alston (1984)- To find forcible rape, need either physical force or threat of force, and general fear of defendant is not sufficient to find threat of force (woman breaks up with her boyfriend, he asserts right to make love to her and rapes her where she does not resist, later they have consensual sex)

NC Rule- must be 1. By force and 2. Against victim’s will

Commonwealth v. Berkowitz (1992)- When forcible compulsion is required, evidence that the sex was nonconsensual is insufficient, there must be evidence of force, threat of force, or mental coercion (guy in the dorm room, girl keeps saying no, but not resisting)

State of NJ in the interest of M.T.S. (1992)- Where legislature employs a “no resistance necessary” rule, the forcible requirement can be met by penetration, although consent may be implied (one with the kid living in family’s house who has sex with the daughter)

Commonwealth v. Sherry (1982)- An unreasonable mistake of fact will not get you off the hook (nurse gets raped by several doctors, they want jury to consider a mistake of fact for consent)

withdrawal of consent

People v. John Z.- Post penetration withdrawal of consent that is clearly communicated effectively revokes consent (post penetration girl said I need to go home 3 times and guy stayed inside, court held she had withdrawn consent and it was rape)

Inchoate Crimes (incomplete crimes or just something less than the harm of an actual crime, e.g. attempted target crime)

Purpose of inchoate crimes

1.Intervention

2.Public safeguard

3. Just dessert

Attempt

Attempted crimes have 2 intents:

1. Intent to commit the act (shooting a gun)

2. Specific intent to do the target crime (killing)

People v. Gentry (1987)- Specific intent is required for an attempted crime (guy douses his gf with gasoline, she catches on fire, he puts out flames and is charged with attempted murder, court reversed because of jury instructions that did not contain specific intent to kill)

Bruce v. State (1989)- Cannot have attempted felony murder because felony murder does not require a specific intent to kill (shoots clerk while robbing store, clerk does not die)

When do we have an attempt?

1. Substantial step test: look to steps that affirm the intent (goes beyond prep)

2. Dangerous proximity test: dangerously close to success, w/o intervention crime would succeed

3. Last proximate act test (don’t be concerned about this)

substantial step test

State v. Reeves (1996)- Where the actor possesses materials to be used in the commission of a crime or near the scene of the crime, and possession under those circumstances can serve no lawful purpose, the jury is entitled (but not required) to find that a substantial step was taken (girls plan to put rat poison in their teacher’s cup, take the step of putting rat poison in purse and giggling near the cup) n. overturns Dupuy

dangerous proximity test

People v. Rizzo- Applying the dangerous proximity test, the court finds that the absence of a victim means no attempt could have possibly been made, merely looking for someone satisfies intent, but not attempt (guys driving around intending to rob a particular person at gun point, the person never shows up and they get arrested for attempted armed robbery)

last step test

Commonwealth v. Peaslee- Preparation is not an attempt unless the preparation comes very near to the accomplishment of the act, so called last step test. In this case, solicitation could be the last step, but they don’t allege it (guy set up materials to burn building, found someone to do it, started driving the guy there, then changed his mind)

impossibility

1. If what you are thinking about doing is not actually a crime, but you think it is, then you cannot be guilty of an attempted crime

2. If you believe what you are doing is a crime, but there is some sort of factual impediment, then you may still be guilty (e.g. selling aregano to undercover officers where you think it’s a drug)

Factual vs legal impossibility: factual is not a defense, legal is, however there’s basically no way to distinguish according to Kreitzberg

People v. Thousand (2001)- Court found that impossibility is irrelevant to the analysis, the issue is whether there was intent and D took a step toward completion (chat room, guy sends a pic of his penis and arranges to meet girl/undercover cop at a mcdonalds, was apprehended there, charged w/ attempted distribution of obscene material to a minor)

n. if this was under the dangerous proximity test, then, like Rizzo, it wouldn’t work

voluntary abandonment

Commonwealth v. McCloskey (1975)- Majority decided that, because he was still within the prison walls, he had not attempted an escape. The concurring opinion said voluntary abandonment is an affirmative defense to attempt (guy trip silent prison alarm, had abandoned attempt to escape)

The traditional view is that voluntary abandonment is not a defense to attempt because the crime has already occurred-keep in mind some jurisdictions may accept it though

Conspiracy

1. Intent to agree

2. Intent for the target crime

n. act of agreement is being criminalized

People v. Carter- conspiracy requires intent to combine with others and intent to commit target offense

Pinkerton v. United States (1946)- D is liable for offenses committed that are in furtherance of the conspiracy, within the scope of the conspiracy, and a reasonably foreseeable consequence of the conspiracy. (2 guys conspire to violate tax laws, one guy didn’t do any of the acts, but was convicted regardless)

Krulewitch v. United States (1949)- There is an exception to the hearsay rule, which is that hearsay evidence made by a co conspirator is generally admissible. In this case, the court held that the exception only applies to hearsay gathered during the commission of the conspiracy. Once it’s over, you can’t admit it anymore (two people conspire to bring a woman somewhere for prostitution, after they get caught, one of the people tells the prostitute not to talk, and they’re trying to admit that into evidence. The court holds that they can’t, because the statement was made after the conspiracy ended)

People v. Swain (1996)- Conspiracy to commit murder requires intent to kill, therefore we cannot have conspiracy where we only have implied malice (drive by killing)

People v. Lauria (1967)- (Lauria runs an answering machine service prostitutes use, they know prostitutes use it, conspiracy?)

Must have 1. Actual knowledge of the illegal use of the goods/services, and

2. Intent to further that use. Intent can be shown by:

a. a stake in the venture,

b. knowledge where no legitimate use of the goods/services exists,

c. the volume of illegal business is grossly disproportionate to legitimate business

n. Conspiracy to commit statutory rape (in some jurisdictions this would fly, in others not)

Commonwealth v. Azim (1983)- Evidence of association plus presence at the crime scene plus knowledge of the crime can infer intent to agree and intent to commit the crime (driver takes 2 guys over to a student, they jump out and rob him, then get back in the car)

n. conspiracy is a crime of agreement, aiders and abettors are charged with the underlying offense

Commonwealth v. Cook (1980)- Need agreement to commit the underlying offense and awareness of the underlying offenses objective (cook and his brother walk to the store with this girl, she slips, then the one brother rapes her while the other watches/laughs, court found no intent to agree)

Kilgore v. State (1983)- Wheel conspiracy as opposed to chain consipracy (Kilgore is hired to kill someone, who evaded attempts on his life by others hired by the same man as Kilgore previously. Is Kilgore part of one large conspiracy to kill this guy? Or is he only involved in a conspiracy between himself and the guy who hired him?)

Braverman v. United States(1942)- one agreement to violate multiple laws is not more than one conspiracy

Wharton’s Rule: If by definition, the crime itself requires 2 people to do something, you cannot charge them with conspiracy (e.g. adultery requires 2 people, you cannot charge them with adultery and conspiracy to commit adultery)-except: when you bring in a 3rd party

Iannelli v. United States (1975)- Wharton’s rule 3rd party exception

People v. Sconce (1991)- While withdrawal from a conspiracy insulates you from liability for the crime, the act of conspiracy has already been completed and therefore you can be held liable. (Sconce offer garcia 10k to kill a guy, Garcia finds someone to do it, before it’s done sconce changes his mind and tells Garcia)

To Withdraw from a conspiracy: must have “an affirmative and bona fide rejection or repudiation of the conspiracy communicated to the coconspirators” -also people v. sconce, even though they essentially ignore this

Accomplice Liability

To find an accomplice liable:

1. Intent to assist

2. Intent for the underlying crime to occur

3. Act or encouragement or omission to that end

State v. Hoselton (1988)- Can be an aider and abettor either by participating or aiding in the crime (guy goes to a barge with his friends, friends steal stuff, he gets asked “were you a lookout?” and guy responded “you might say that”. He claimed no intent to assist friends in stealing)

State v. Vaillancourt (1982)-mere presence is not enough to constitute aid (guys standing on porch, walked over to side door and one guy tried to break in while Vaillancourt stood by watching and talking to him)

State v. Linscott (1987)- An accomplice is liable for the foreseeable consequences so long as he intended to promote the primary crime (go to rob drug dealer, one guy breaks window and another guy shoots him)

People v. Brown (1980)- Brown effectively withdrew from the burglary, but after an attempt. Subsequent withdrawal from crime does not absolve you of attempt that’s already occurred (guy accompanies someone to acquire a car, attempts to kick in door, changes his mind and decides to leave)-timely withdrawal

n. If one accomplice is acquitted, that does not preclude another from being convicted under accomplice liability

Basic Defenses

1. Failure of proof: so called elemental defense (e.g. mistake of fact where knowledge is required)

2. Offense modifications: where all elements are met, but does not satisfy the thing the law was meant to prohibit (e.g. paying a ransom may satisfy complicity in kidnapping, but that person would probably be off the hook)

3. Justifications: harm of conduct is outweighed by an even greater harm if conduct did not occur (e.g. burns a cornfield creating a firebreak, probably no arson here)

4. Excuses: deed may be wrong, but actor is not responsible (e.g. I think you’re coming to kill me so I shoot you, when in fact you are not)

5. Nonexculpatory public policy defenses: balancing of interests gets you off the hook (e.g. statute of limitations, immunities, incompetency, etc.)

n. A justification negates the harm to society, whereas an excuse negates the moral blameworthiness of the actor

Justifications:

Self Defense

1. Reasonable belief

2. Imminent danger

3. Great bodily injury or death

United States v. Peterson (1973)- The right of self defense cannot be claimed by an aggressor (guys car wipers are being stolen, as criminals are leaving he runs out with a gun and threatens that he will shoot if they come closer, guy gets out of the car and comes toward him with a wrench, then gets shot)

n. Common law rule says you must retreat to the wall (principle that self defense is measured against necessity)

n. In some jurisdictions, an unreasonable belief may be considered as a mitigating factor, but not an absolute defense

Castle defense: Widely, but not completely accepted, a person does not have to retreat from their own home, Peterson was standing on his property and tried to claim castle, an aggressor cannot claim castle

Regular business: Peterson quoting Rowe says ”a defendant may claim self defense if he arms himself in order to proceed upon his normal activities, even if he realizes that danger may await him”

Unable to use self defense if:

1. First aggressor

2. Retreat (in some states, must take any reasonable avenue of retreat available, mpc says only when you use deadly force)

3. Proportionality (cannot use deadly force in response to a non-deadly attack)

Policy reasons: we want to minimize killing and therefore only allow people to respond with deadly force if absolutely necessary, one cannot be expected to retreat in their own home therefore castle

People v. Goetz (1986)- Must have an objectively reasonable belief, although it may be based upon prior experiences (kids ask for $5 on the subway, guy gets up and shoots them all, see proportionality supra)

State v. Wanrow (1977)- In determining reasonableness, take into account gender, size and disabilities of D, step into D’s perspective (guy tries to pull kid off a bike, presumably to molest him, mother waits over weekend for arrest warrant but asks friends over to protect her, guy gets lured into house and shot by a small woman on crutches)

State v. Norman (state court of appeals) (1988)- Killing of a passive victim does not preclude self defense (battered woman case, shoots husband while he’s sleeping)

State v. Norman (state supreme court) (1989)- To find imminence, one must reasonably believe themselves confronted by imminent threat of GBI or death (Court holds evidence in this particular case did not tend to show that D reasonably believed she was confronted by a threat of imminent bodily harm or death, therefore reversed)

n. Most states admit battered woman syndrome testimony in appropriate cases (usually confrontational homicide cases)

defense of others

1. Alter ego rule (I step into persons shoes and can only apply the amount of force he could)

2. Appropriate force rule (I can use the objectively reasonable amount of force given my knowledge of the circumstances) *Majority rule

People v. Kurr (2002)- Whether a fetus constitutes an “other” for the purposes of the statute need not be addressed because legislature in MI specifically passed laws to protect them, therefore established policy, also defense of others extends to strangers now (guy hits girlfriend twice in stomach, she says quit it I’m carrying your children, he comes at her and she stabs him)

defense of property

People v. Ceballos (1974)- Deadly force generally cannot be used to defend property, but an exception is defense when entering a dwelling house. However, once a person is in the house, you can’t claim defense of habitation, therefore look to traditional notions of self defense (guy lives above his garage, kids break lock and enter w/intent to steal, spring gun shoots in face)

necessity

Faced with choice of two evils, one must choose between committing a crime or an alternative act or omission that constitutes a greater evil

Nelson v. State (1979)- Necessity may be raised if actions were necessary to prevent a greater harm from occurring (guy gets truck stuck in mud, borrows and damages a state vehicle trying to get it out)

MPC limits on necessity:

1. Actor must believe conduct is necessary

2. Conduct must arise from an attempt by the actor to avoid a greater harm

3. The court determines the balancing of evils (hence an actor’s belief that he is avoiding a greater harm is irrelevant, the harm must actually be greater)

4. Legislative preemption (if legislature decides on the balancing, that’s the final word)

5. Recklessness or negligence in bringing about the situation requiring a choice may be the basis for a conviction

The Queen v. Dudley and Stephens (1884)- There is no absolute or unqualified necessity to preserve one’s life (sailors kill and eat another for survival, court sentences them to death and uses soldier hypo)

Excuses Excuses

duress

1. Immediate threat of death or gbi

2. Well-grounded fear threat will be carried out

3. No reasonable opportunity to escape the threatened harm

United States v. Contento-Pachon (1984)- Sets forth elements of duress, supra (drug dealer says he will kill guy’s family if he doesn’t swallow a bunch of cocaine balloons and take them to the US)

Voluntary Intoxication

Commonwealth v. Graves (1975)- Intoxication although voluntary, is admissible to counter the specific intent element of a crime (guy drinks wine and takes LSD, goes with friends to burglar and rob this guy, who consequently dies. Intent?)

n. MPC says voluntary intoxication may be used only if it negates an element of the offense

Involuntary Intoxication

Happens infrequently, but may excuse actor if it negates mens rea or if it renders the person temporarily insane

Types of involuntary intoxication:

1. Coerced intoxication (involuntarily induced by duress or coercion)

2. Pathological Intoxication (grossly excessive in degree, given the amount ingested where D does not know about susceptibility)

3. Intoxication by innocent mistake

4. Involuntarily induced by medically prescribed drug

Insanity

Competency: at the time of trial (decided by the judge, ordinarily decided at the beginning, but may be brought up at any point during trial)

1. Do you understand the charges against you; and

2. Can you assist your lawyer in some meaningful way

n. If a D if found incompetent, they will be committed until competency is regained. If it appears that competency will never be regained, then the state must either begin civil commitment proceedings or else release the defendant

n. If a D’s competency may be regained through medication, the court may do so if it is medically appropriate and essential for the defendant’s own safety and safety of others

Insanity: at the time the offense took place

1. Mental disease or defect (basically must be in the DSM)

2. Connection between mental defect and mens rea or cognitive ability (knowledge of right and wrong generally) or capacity to appreciate the wrongfulness of actions or irresistible impulse (ability to conform behavior to the norm, volitional)

Policy behind insanity: punishing insane persons would not serve deterrence, no would it serve retribution because blameworthiness is reduced, nor would it serve rehabilitation purposes

n. To be institutionalized, the state must ordinarily prove that a person is mentally ill and dangerous to himself or others. If the mental illness goes away, but the person is still dangerous, the state cannot hold them.

3 tests:

1. M’naughten

2. ALI (MPC) test

3. Irresistible impulse test

ali test

1. Because of a mental disease or defect

2. Lacks substantial capacity to

3. Appreciate criminality [wrongfulness] of conduct; or

4. To conform conduct to legal requirements

m’naughten test

1. Disease of mind such that either

2. Did not know the nature and quality of the act he was doing; or

3. Did not know that it was wrong

irresistible impulse test

1. Disease or defect

2. Irresistibly driven by an insane impulse

3. Unable to conform conduct to what the law requires

State v. Wilson (1997)- D may be considered to not appreciate the wrongfulness of his conduct if his altered perception causes him to mistakenly believe that society would condone his behavior (Crazy mind control guy kills his classmate’s father, went to police station to accept punishment, legislature adopted ali test with wrongfulness, court analogizes to deific command cases)

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