Santa Clara Law



[INTRO TO CRIMINAL LAW][Model Penal Code]Until Recently, most state criminal codes were collections of statutes that left much to be desired. ALI developed the MPC in 1952: greatly influenced criminal law reformSome states have adopted major portions of the MPC[Criminal Law Process]Crime reported to police – doesn’t end in arrest without arrest warrant with probable causeArrestee entitled to preliminary hearing within two weeks, judge determines if arrest was justifiedIf justified:The prosecutor can file an “information” setting out the formal chargesORThe accused is not brought to trial unless indicted by a grand jury, consisting of members of the community. An indictment is a document similar to an “information” Following indictment, DA determines bail, depending on close fam ties, job, friends: evaluate flight riskDefense attorney may make various pre-trial motions that may sometimes require the dismissal of chargesORDefendant pleads guilty as a result of bargainingBy pleading guilty, charges or sentences will be reducedConviction rate obtained by guilty pleas is greater than 90%SentencingIndividual sentencing: judge’s discretionMandatory sentencing: if you convict X you must be sentenced YMandatory sentencing can eliminate discrimination through consistencyHowever MS does not allow the consideration of the circumstances*Notice how many of these steps are not reviewable! Sole discretion on the police, DA, judge. D.A.s and prosecutors have the sole discretion in what to charge also, including seeking the death penalty. Justice system is not “fair,” but it is the “best” system. They must constantly weigh what is better for their constituents and society.[Trial by Jury]6th Amendment to Constitution: public trial by impartial jury in all cases where max potential of incarceration exceeds six monthsTrial by jury to prevent oppression by government12 people need to rule unanimously to reach verdict (in some cases less than 12 people)Judge and attorneys exam potential jurors in “voir dire”Proof beyond a reasonable doubtWinship Court ruled in 1970 that the reasonable doubt standard is the prime instrument for reducing the risk of conviction resting on factual errorJustice Harlan stated that it is far worse to convict an innocent man than to let a guilty man go freeCriminal Law v. Civil LawCriminalCivilState v. CriminalLegality v. MoralityIndividual v. DefendantWrongs against societyWrongs against personFines/incarcerationMoney damages to PlaintiffProof beyond a reasonable doubtBurden of Proof[PRINCIPLES OF PUNISHMENT]Punishment can be: incarceration, fines, community service, shaming, deathIncarceration is the typical form (2.3 million in America in 2007)There are two theories of punishment that still apply today in criminal proceedings. If the punishment does not serve one of these purposes of punishment, it is deemed unconstitutional to sentence the criminal. For instance, it is unconstitutional to sentence minors or the mentally ill to the death penalty or life imprisonment.Retributive theory: looking backwards – did he commit the crime and therefore deserve the punishment?Utilitarian theory: looking forward – will there be a benefit to society from imposition of punishment?[Retributivist Justification of Punishment]Question of retributivism: WHY should we punish defendant? Because defendant deserves it.Lex talionis: an eye for an eyeCommonly associated with death penalty, even though retributivism only deals with who deserves punishment, not what type or how muchFor a retributivist, the moral culpability of an offender gives society the duty to punish[Utilitarian Justification of Punishment]All punishment itself is evil; it can only be admitted if it excludes a greater evilPunishment should not be inflicted where:There is no mischief for it to preventIt cannot act to prevent the mischiefIt is too expensive and the mischief produced is greater than mischief preventedNeedless: mischief can be prevented without itModern usage refers broadly to theories that likely consequences will determine the morality of the action (punishment)Beneficial consequences of punishments according to utilitarian principles:General deterrence (for public)Individual deterrence (individual will not repeat crime)More severe punishment for repeated offender is warranted under this theory, because the first penalty was obviously ineffectiveRisk management (bad people are physically off the streets, prevented from committing crime)Reform (criminal will become a more useful & happy person)[Deterrence as Justification of Punishment]US relies on deterrence and retributionIncapacitation: criminal physically can’t commit crimes while in jailRehabilitation (doesn’t exist in US anymore): idea that criminal gets vocational/physical/counseling then is released back into society to add to societyCriminal Law is the trade off between individual freedom v. public securityCase:In Dudley v. Stephens 1884 (p.48), Ds are indicted and convicted of murder for killing a boy while lost at sea to eat him for survival. This case raises questions of whether they should be punished under R or U theories, if they killed too soon, whether the process of picking boy (worth the least in terms of survival) were fair, and whether the relative worth of the people on the boat was relevant. Should this act never be OK? Exceptions?[ACTUS REUS AND MENS REA][ACTUS REUS]Actus Reus is the physical and external part of the crime. For result crimes, the Actus Reus is the end result; murder is a result crime and it is committed when the death occurs. For conduct crimes, the Actus Reus is defined in terms of conduct; DUI is a conduct crime and even if there is no injury, D is guilty of this offense if D engages in this conduct.The act needs to be voluntaryInvoluntary means actions were coerced as opposed to a conscious decision to execute the actUnder 2.01, involuntary could mean “a reflex or convulsion,” “bodily movement during unconsciousness”Our justice system has a requirement of an Act because we do not punish mere thoughts. The external harm, not the thoughts, is the behavior that the State finds inappropriate to society. We also cannot prove the thoughts of a man. Types of ActsVoluntary v. involuntary actIn Martin v. State 1944 (p.128), police takes drunk man onto a public highway and arrests him. A voluntary appearance is presupposed in interpreting the statute, so he is not found guilty.We do not deter involuntary acts because no purpose of punishment is served. It does not deter a sleepwalker to refrain from killing in his sleep is he is punished for it. It is also hard to argue that he deserved the punishment when he never made a conscious decision to commit the crime.An attendant circumstance is part of the actus reus that must be present in order to constitute the crime, that is not necessarily criminal on its own:In a DUI, “offense to drive in intoxicated condition,” the intoxicated condition is not a conduct element, but an attendant circumstance, because people are allowed to get drunk, they just can’t drive in such a conditionTime Framing of ActIn Martin (p.128), the Defendant will argue for a narrow time frame: At the time of arrest, he was in the public space involuntarily; Prosecutor will argue for a broad time frame: Few hours before arrest, he voluntarily drank alcoholIn State v. Utter 1971 (p.130), war veteran acts on a “conditioned response” and stabs his son when he “sneaks up behind him” after drinking all day. Court found him guilty of murder even though his response was involuntary, because PTSD was not a known syndrome then, and being voluntarily drunk is not a complete defense.InvoluntaryVoluntaryIntent – culpable mental state of mind presentUnder duress: voluntary but acted in fear of death or injury to self or familyAutomatic Response:Reflex, hypnosis, unconsciousOmission if there is legal dutyActs, passive acts and possessionInsanity: mental defect that significantly impacts behavior/ability to comply with the law[Omission as an Act]Sometimes the “act” element of a crime is an omission, or the failure to act. The failure to act when you owe a legal duty is a crime. The duty may come from statute, special relationships, assumed contractual duty of care, voluntary assumption of care, or a duty that arises from precluding others from help. It is much easier to prove liability with an act because with omission, you also need to prove legal duty in addition to the act/omission that occurred. People v. Beardsley 1907 (p.136): Respondent not guilty of murder when he left a drunk/drugged woman in a neighbor’s apartment knowing her life was in peril, because he owed her no legal duty Barber v. Supreme Court 1983 (p.142): Respondent not guilty of murder when they pulled the plug on a comatose patient with family’s consent, because physician has no duty to continue treatment once it has proved to be ineffectiveFinding Legal DutyAlways consider the policy arguments and the factual argumentsWhy does the status-duty argument make sense and not make sense?In Beardsley (p.136), Defense argues that status comes from marriage – flaw with this is that many people choose not to get married, many people cannot legally get marriedIn Genovese (p.139), woman is stabbed in parking lot and calls out to 38 people who ignore her, but if they all had a duty, could we prosecute 38 people for this?[Mens Rea]Mens Rea is the mental state of the criminal before and during his commission of the crime. This is the internal ingredient, or the intent that renders D culpable with a morally blameworthy state of mind. D is criminally liable when P proves the harm as well as the intent. The mental state required is an element under the terms and the language of the specific statute. In strict liability statutes, you do not need to show intent (generally disfavored). For example, with statutory rape, consent or intent does not matter and the act itself is a crime. This is a policy decided by our society that certain conducts should always be prevented regardless of intent. Voluntary intoxication may negate mens rea requirement or the formulation of specific intent, like D was provoked in fact Alcoholics and addicts are considered voluntarily intoxicatedInvoluntary intoxication may be an affirmative defenseThe Morally blameworthy state of mindIn Regina v. Cunningham 1957 (p. 151), a man breaks open a gas meter to steal money, but the gas leaks and kills Mrs. Wade in the next apartment. Jury was instructed to define “maliciously” in the applicable statute to mean a morally culpable state of mind. However, just a “wicked” mind is not enough; defendant needs to have the wicked intent to cause the crime or social harm for which he is being charged, OR foresee that the result may happen (in this case, murder as a result of his petty crime). Court reversed the conviction for murder.In People v. Conley 1989 (p.153), A attempts to strike B with wine bottle but hits C in the face, causing permanent numbness and mucosal mouth. The state rules that “permanent disability” from applicable statute means any part of the body that is not the same as before (regardless to function), and that the intent from A to B transfers over to C in the commitment of this crime. D was convicted.Transferring Intent: If A tried to throw a rock at a window and hits C, the intent is not transferred; the intent was to damage property, not person. However in the above case the intent was to cause a bodily harm with a bottle, so who he hits (act) does not change intentProving Intent:The Model Penal Code has four states of culpability useful in defining intent: Purposefully, Knowingly, Recklessly, and Negligently.When D does something purposefully, he commits an act with the conscious objective that the result occurs. This is the highest level of intent.When D does something knowingly, he commits an act aware that the result is practically certain to occur. This is the second highest level of intentIn Figueroa v. United States 2009 (p.170), defendant is not found guilty of aggravated assault when he knowingly used fake numbers for his identification but did not know they were actual numbers belonging to a citizen. “Knowingly” appeared in the beginning of the statute, which grammatically qualifies all of the elements: “transfers, possess, without lawful authority, means of ID, of another person”When D does something recklessly, he is aware of a substantial and unjustifiable risk and acts intentionally in consciously disregarding that risk. This is the lowest level of intent for criminal liability.When D does something negligently, he is not aware of the dangerous condition and inadvertently creates a substantial and unjustifiable risk. D should have known of the risks. Usually, criminal liability requires something beyond negligence, such as gross negligence. Inferring Intent: Look to the natural and probable consequences of an act deliberately done by D. “Torture means act… intended to inflict… prolonged mental harm caused by… intentional infliction” (p. 197)Logical Sequences in Argument:Intended to waterboard, deliberately acted to do itD had knowledge that waterboard will cause mental and physical harm almost immediatelyThen infer that from the intent to waterboard + knowledge that waterboarding causes harm, the purpose of waterboarding is to cause painNeed a strong link between the harm suffered and the act of waterboarding to make the logical argument Willful blindness: Model Penal Code states that willful blindness is enough to constitute “knowledge”In United States v. Herredia 2007, a woman is charged with possessing a controlled substance with intent to distribute while driving her sister’s car across the border. She did not “knowingly” possess, but there is evidence she willfully decided not to ask. She was found guilty.Is willful blindness recklessly or knowingly intending? Court opinion says neither.Willful blindness is deliberately taking actions to avoid confirming suspicionsReckless defendant knew of a substantial and unjustifiable riskNegligent defendant should have had similar suspicions but in fact did not In State v. Nations 1984 (p.165), defendant is charged with endangering welfare of a child when she did not check her employee dancers’ ID at her strip club. Court decided here that “knowledge does not include willful blindness and it needs to be an actual knowledge of fact.” However the MPC includes willful blindness as enough to constitute knowledge. [Strict Liability]Strict liability crimes are generally disfavored because criminal law rests on intent. There is no deterrence purpose of punishment since there was no intent to commit the crime. In fact, moral culpability is not even considered in strict liability crimes. In Garnett v. State 1993 (p.186), a 20yo man with the mental social capacity of a 11-12yo, is found guilty of statutory rape when a 13yo tells him she is 16yo. The language of the statute does not mention consent or intent, only that the act was “by force OR reasonably know the victim has a mental defect OR victim is under 14 and defendant is 4 years older than victim.” Prosecutor used the 14yo Victim and 4 years older Defendant argument to prove his case: this is a strict liability element and by creating it, society is trying to prevent predatory harm against childrenDefense could have argued that the statute was meant to protect children from predators – can a 12yo mental capacity man be held as a predator?[Mistake]Mistake is not a defense in itself, (like self-defense or acting under duress), but may negate guilt if it was reasonable (objective) and honest-in-fact (made in good faith). Many jurisdictions allow “reasonable mistake of fact” as a defense, so if the defendant had a reasonable and objective reason to believe a mistake in fact, it could be argued as a defenseStrict Liability Statute Mistake not a defenseGeneral Intent Crime Mistake may be a defense if reasonable and made in good faithIn People v. Navarro 1979 (p.194), defendant is acquitted of petty theft when he took wooden beams from a construction site believing that they were abandoned. Court found that as long as defendant had objectively and in good faith believed that the property he took was abandoned, the element of the statute that requires intent will be negated and he will not be guilty of the crimeSpecific Intent Crimes Mistake is a defense if it negates the intent, reasonableness not required In State v. Blurton 2002 (p.197), defendant genuinely believed he was trying out for the CIA when he stole from a Wal-Mart. The statute described robbery as “intent to permanently deprive” Wal-Mart of its property. His mistake negated this general intent element of the crime. It only matters that the mistake is honest-in-fact with general intent crimes, because now the D did not have the morally blameworthy state of mind and therefore punishing D would not serve either justification of punishment. Modern Approach: Mistake is not its own defense in law, but mistake may negate an element of the offense; if the mistake of fact can be proven, the element will no longer be proven. First determine the mens rea required under the statuteDetermine what the mistake is that occurredApply mistake logically to the statute: does government fail to prove intent because of the mistake?When can you use mistake?Example 1: A means to burn B’s house down but thought C’s house was B’s.Would statute to knowingly burn down a person’s house apply if he didn’t know it were another’s house? Here, we would look at moral culpability: If he was morally culpable then we don’t look at mistake. If he was not morally culpable court may consider mistake.Example 2: A steals necklace thinking it was worth $25 but it was actually worth $600.Petit larceny is stealing under $500, grand larceny is stealing over $500. Should defendant be charged with grand larceny? If defendant was acting morally culpable, P will charge with the greater offense since you tried to steal anywayHowever, courts will rarely engage in the “moral culpability” test because they want to punish people from crimes that they knew they were committing and meant to commit[Mistake of Law]A mistake of law is usually never a defense. This is a policy rationale, for if we excused criminals on a defense of mistake in law, D’s personal interpretation of the law will outweigh the rules our government has determined to make men know and obey. The justice to the individual is outweighed by the good of society here. However, a mistake of law may be a reasonable defense if someone relied on the interpretation of law by a law officer and had no reasonable access to the statute.. E.g. If someone relies on the word of their parole officer and thought what they were doing really was legal, that reliance can be a defenseIn People v. Marrero 1987 (p.199), defendant is convicted for possession of unlicensed firearm. Defendant is a guard at a federal prison and genuinely believed that the law, which allowed “peace officers” to carry such firearms, applied to him. This mistake-in-law was not recognized by court since “to admit the defense would encourage ignorance.” Defendant cannot claim mistake simply by misconstruing meaning of statute, he must prove that the statute relied on actually permitted the conduct and was only later found to be erroneous.[MURDER]: “The unlawful killing of human being or fetus with malice aforethought”-MPC §187MURDERFirst Degree MurderDestructive device, poison, torture, lying in waitWillful, deliberate, premeditated Enumerated felony MANSLAUGHTERVoluntary InvoluntarySecond Degree: all other murder with malice[MALICE]Malice refers to a specific mental state that needs to be proven to find D guilty of murder. The prosecutor will need to prove malice through a showing of the intent to kill, the intent to cause grievous bodily harm, substantial knowledge that death or GBH will occur, or a reckless indifference to human life. The statute of the jurisdiction will describe the specific intent required. Common law defines four types of murder, which show up often in statutes as well:Intent to kill (express malice)Intent to Cause (implied malice)Depraved heart (wanton disregard, extreme indifference and recklessness to human life)Intent to commit a felony (implied malice) Express Malice v. Implied MaliceExpress Malice is the intent to kill (purposefully)Implied Malice focuses on D’s awareness of the risk:Intent to cause GBH (knowingly); ORActing with substantial certainty that GBH or death will occur (knowingly)Acting with extreme indifference to human life/wanton disregard/conscious disregard of substantial risk (recklessly); ORIntent to commit a felony[Homicide]Statutes provide for different elements for degrees of murder. MPC §189 states:“All murder perpetrated by means of destructive device or explosive, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of [enumerated felonies] is murder in the first degree… all other kinds of murders are of the second degree.” [Intentional Killings]Willful – state this before P&D; all 3 must be met. Willful means a voluntary and intentional doing of the actor. Although motive is not an element, motive could be used to show WPD. [Premeditation & Deliberation (Elements of M1)]Premeditation and Deliberation is the thinking and reflecting of the act before the act of the crime. The D must calmly and rationally, as opposed to emotionally, decide to commit the act. P&D cannot occur moments before the killing; this definition does not distinguish P&D with mere intent, which is erroneous. In Guthrie (p.253), the jury instruction broke up P&D to prior consideration interval of time execution of intent. In People v. Morrin 1971 (p.257), the jury was instructed that, to premeditate is to think about beforehand/advance formulation and to deliberate is to evaluate major facts of a choice and to decide to follow through on the act. In State v. Forrest, Forrest is convicted of M1 for shooting father to death in hospital to put him out of his misery. In this case, premeditation was proven and judgment affirmed. Premeditation factors:No Provocation (there was none, so premeditation is more likely… if there were, “heat of passion” crime)Conduct and Statement (statements he made to nurse before, police after)Threats and declarations (“I’ll take care of him” “I won’t let him suffer anymore”)Ill-will/previous difficulties in relationship (not present here)Dealing of lethal blow after V is already helpless (father was lying in hospital bed)Brutal manner (4x point blank shots, cocked gun each time)However, note that these facts could be argued both ways. His bringing gun to hospital could have been P+D, or just habit since he carried gun as a trucker for his work. His provocation could have been not from his dad but from the emotional pain he has suffered over a long period of time watching his father sick. His statements to nurse and police further show his emotional distress. Prosecutor would have to argue that the premeditation happened at home and son came to hospital after deciding to kill. Defense would argue that son became emotionally upset upon seeing dad and shoots father under emotional distress. In Midgett v. State 1987 (p.258), Midgett’s conviction of M1 is mitigated to M2 on lack of premeditation and deliberation. Midgett routinely got drunk and beat his child, to the point that one day he beat him so badly that the child died of intra-abdominal hemorrhage. Defense would argue that his intentions were not to kill, but to discipline, and that he obviously did not intend to kill because he was bigger than the child and could have killed him earlier but kept him alive purposely (to continue beating on him)Prosecutor would show lack of care through the starvation, severe beatings (which he should have known would severely injure child), his voluntary drinking, and the fact that he only beat this child (did not have general violence towards his children but singled this child out). Furthermore, he had times of “cool off periods” to think about what he was doing – which is a factor usually present in P+D[Felony Murder – First Degree Murder Charge]Felony Murder is not found in common law, but made by statutes. Felony Murder includes enumerated felonies in the M1 statute; robbery, burglary and rape almost always found in these statutes. There is no intent to kill required. Felony must be “inherently dangerous” which means that the felony by its very nature cannot be committed without creating substantial risk of death. The “inherently dangerous” element must be analyzed in the abstract, not what the D did in fact, since his acts can obviously be analyzed as dangerous when someone died and he ended up in court.Death penalty is usually an option for punishment (in the 32 states and CA that have death penalty). The Policy Debate is that felony murder laws to discourage felons from negligently or spontaneously killing while in the commission of felony. It is interesting that it is a strict liability statute when our criminal system is based on mens rea component, and when felony murder is punishable by the most serious punishment (death penalty).At common law all felonies were punishable by death, so it made little difference whether the actor was convicted of murder or of the underlying felony because sanction was the same (p.316)[Approaches for FM analysis]Agency approach: “your acts are my acts,” co-felon guilty of everything another co-felon does, but not the acts of others who were not a co-felon (i.e., police, bystander) Majority uses this approachProximate causation approach: felon set in motion the acts that resulted in death and should be responsible for any death that is a direct or foreseeable consequence of felonyProtective Person Theory (p.342 #2): looks at the victim of the murder committed during felony. If police or bystander died, D would be found guilty of FM but if co-felon died, D would not be found guilty of FM.Include in the analysis when the “perpetration of the felony” is over:The perpetration of the felony is considered over when D has reached a place of safety, there is a clean break in the action, or the Ds are dividing up the proceeds.It is not over during the getaway of the crime while Ds are fleeing the scene. [Manslaughter] “Unlawful killing of a human being without malice” MPC §192[Voluntary Manslaughter] “Upon a sudden quarrel or heat of passion” MPC §192Voluntary Manslaughter is also known as a Heat of Passion killing, when D is provoked into a heat of passion upon a sudden quarrel, without the opportunity to cool down. This crime is punished less severely because it is considered an act from passion rather than reason. Defense must show a causal connection between the provocation, the passion, and the fatal act in order to mitigate the crime of murder down to manslaughter. The law only mitigates murder to manslaughter in a small set of circumstances. Policy reason is to keep domestic violence murders under control; all domestic violence murders cannot be mitigated to provocation. [PROVING PROVOCATION]Provocation is not a defense, like self-defense, it just mitigates the crime of murder to a lesser degree. The Judge decides if there is enough evidence of legally adequate provocation to go to jury (question of law). The Judge will give jury instructions on characteristics they may consider in the reasonable standard (age, gender, race, etc). The Jury will then decide if a reasonable person would have been provoked in the situation and whether there was in fact provocation (questions of fact). When deciding on the objective component, the jury will determine whether the passion of a reasonable man would be provoked in the same situation. This is a question not about what is right or wrong but whether a reasonable man would have been able to exercise self-control. There is a big debate on what the reasonable standard is and when to consider additional characteristics of the D. One legally accepted provocation is seeing one’s spouse with another in bed. In general, “mere words” are not legally adequate provocation, unless the words were accompanied by a threat of bodily harm. The most common characteristic considered is age. This is the only factor where there is a universally agreed upon idea of its effects on self-control. Impulse-control does not develop until age 25-30, in younger people; a factor to be considered is the chance for rehabilitation (if he gets sentenced 25-life… rehab is not going to happen)The second most common characteristic considered is gender. This is not a fair characteristic, for it may place a higher standard on women: “A typical woman would have exercised self control”; “boys will be boys”Other characteristics include: race, sexual preference, intoxicated state (debatable) and mental retardation, which is similar to the age characteristic on inability of exercising self-controlWhen deciding the subjective component, the jury will determine whether D was actually provoked. Earlier subjective experiences may increase the gravity of provocation. Gravity is not an objective component, since it involves the actual experiences of D rather than what an expert says “this type of person” goes throughThe Judge will determine whether the jury should consider cool-off time and the jury then decides if D in fact had time to cool off, using objective factors. Cool-off means the heat of passion was over and D cannot use provocation to mitigate down to manslaughter. If there was an opportunity to cool down and D still kills, the perpetrator may be guilty of M1 if P can make the case that the cooling down period was the P&D.If provocation is not deemed legally adequate, the D will be guilty of M2. [Extreme Emotional Disturbance]In cases where D undergoes extreme emotional disturbance, killing is not a direct response to provocation, but rather a response to an internal trigger. This triggering act does not fall into traditional categories since D creates his own reality here (internal trigger) as opposed to being provoked (external trigger.) In EED cases, we look to D’s own disorder as a mitigation of a crime. Two elements must be met: D acted under extreme emotional distress (ongoing obsession with V in Casassa, her final rejection of wine was her rejection of him – it was not a single triggering point but one in a series)There is a reasonable explanation for such emotional disturbance (court found that there was no reasonableness in his emotional distress after D and V only dated casually for a few months. Jury and court conclude that murder was a result of D’s malevolence rather than reasonable human response)[Involuntary Manslaughter] “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” MPC §192[Unintentional Killings]D has committed involuntary manslaughter when D had the state of mind of criminal negligence – a gross deviation from the behavior of a reasonable person that created a substantial and unjustifiable risk – and this results in V’s death. There must be a causal link between the criminal negligence and V’s death (State v. Hernandez). This state of mind is the least culpable out of the homicide mens reas; by definition, D is unaware of the risk that he inadvertently creates. When prosecution can prove that D was actually aware of the risk, this proves implied malice and D will then be charged with M2. [Capital Punishment]Whether one is for the Death Penalty or not, the system we currently have in place does not workIn Furman v. Georgia 1972 (p.345), the US Supreme Court strikes the Death Penalty as writtenNo majority opinion, all 9 justices wrote (Plurality opinion, 5 agree on result, no 5 agreed on reasoning)Douglas and Stewart – juries need guided discretion, in the past juries imposed the D.P. in an arbitrary and capricious mannerBurger, Blackmun, Powell, Rehnquist – wrote dissent on how it was not constitutionalBrennan and Marshall – unconstitutional under all circumstancesIn response, 36 states re-write their statutes5 cases involving GA, TX, FL statutes go up to SCOTUS Georgia’s statute makes it up to SCOTUS in 1976 in Gregg v. Georgia (p. 346), where Georgia’s Death Penalty procedure was evaluated on its constitutionality. Defendant Gregg was convicted of intent-to-kill murder and armed robbery and was guilty of two statutory aggravating circumstances Court ruled that the Death Penalty is not a form of punishment that should be abolished, and that Georgia’s procedures do not violate the Constitution (namely 8th and 14th amendments)Death penalty serves purposes of retribution and deterrence and when the crime committed is murder, D.P. is not disproportionate Brennan’s Dissent – D.P. treats humans as nonhumans Marshall’s Dissent – General deterrence and retribution can be accomplished with life without paroleAspects of D.P. found to be constitutional by SCOTUS in Gregg:Bifurcated trial: one to determine guilt (only fact related to crime), the other to determine sentencingStatutory aggravating circumstances: lists which crimes are eligible for D.P., at least one needs to be present in order to sentence D with D.P.Mitigating Circumstances: D can admit evidence that has anything to do with the life of DAutomatic Appeal guaranteed Voire Dire: Jury must be able to consider both D.P. and life without parole before being selectedSince 1976, 140 people have been exonerated in 26 states determined to be factually innocent if lawyer can get the case reopened to trialResearch has found that the race of the victim is the single most implicating factor in death penaltyExecutions with white victim (79%) v. black victim (14%)However, 50% of murder victims are whiteIn McCleskey v. Kemp 1987 (p.362), a black man was convicted of the murder of a white police officer during the course of a robbery. Jury found two statutory aggravating circumstances and no mitigating factors. On appeal, charges were affirmed. McCleskey then filed a writ of habeas corpus claiming that the Georgia Capital Sentencing process is administered in a racially discriminatory manner in violation of the Eight and Fourteenth Amendments. This was the last “wholesale challenge” to D.P. itselfD presented statistical evidence that Ds charged with killing white victims were 4.3x as likely to receive a death sentence as Ds charged with killing blacks. Black D’s were much more likely to receive a death sentence than other defendants. D claims that The Baldus Study demonstrates he was discriminated against because of his race and the race of his victim. Court denied D’s evidence based on the fact that D offered no evidence specific to his own case, and concluded that the Baldus Study is clearly insufficient to support an inference that any of the decision makers in D’s case acted with discriminatory purpose Brennan, Marshall, Blackmun, Stevens Dissent: To reject McCleskey’s powerful evidence ignores the qualitatively different character of the death penalty and the particular repugnance of racial discriminationIn 2003, determined unconstitutional to execute mentally handicapped In 2005, determined unconstitutional to execute juveniles [Rape]Rape is defined at common law as the forcible carnal knowledge of a woman. If D had subjectively and objectively believed that he had voluntary consent from V, D may have a defense (D entitled to a mistake of fact). In Statutory Rape, a reasonably objective as well as subjective mistake as to age may be a defense (e.g. V showed a convincing fake ID to D). In Criminal Law, we usually only look at D’s behavior, but here we look at both D’s and V’s. There are a lot of questions on the credibility of V’s account. Women on juries are harsher on other women in rape cases (if she could have walked away or resisted more, she should have). Factors to look for in rape are determined statutorily. However, some common factors are:ForceGeneral fear is insufficient that D used force“Physical force” entails any amount of sexual touching brought about involuntarily. A showing of sexual penetration coupled with lack of consent would satisfy the elements of the statute. (State of NJ in the Interest of M.T.S.)Forcible CompulsionIncludes not only physical but also moral, psychological or intellectual force used to compel a person to engage in intercourse against that person’s will (Commonwealth v. Berkowitz)Against V’s willEven in the absence of physical resistance, V’s words may be sufficient that intercourse was against her will (State v. Alston)Lack of consentV may be incapable of consenting by age or mental capacityV may have consented under duress, fear of violence, or fraud, which is not legal consentConsent by V is a complete defense to rapeIssues to Consider while analyzing Rape Statutes:What act is it punishing? Penetration, sodomy, other orificesWhat level of intent is required? General v. SpecificConsent? What do V and D Testimony say about resistance/force/fear?Defense? Was there a mistake of fact? What does the prior conduct of V and D say?[INCHOATE CRIMES]Inchoate crimes include crimes such as attempt, solicitation, and conspiracy. In each, D has failed to carry out the offense undertaken. Inchoate crimes are still punishable even though there was no actual social harm, since it serves a purpose of punishment: the deterrence of culpable conduct and intent (utilitarian justification).[ATTEMPT]“Actor purposely does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in the course of conduct planned to culminate in his commission of the crime.” – MPC Attempt Timeline Mere Thoughts Preparation Solicitation (complete attempt if successful) Crime Substantial Step Test Dangerous Proximity Test (Prosecution) (Defense)Attempt is not a crime in itself; it is always in combination with another offense, such as the “attempt to commit robbery.” If the principal crime is committed successfully, D is not charged with both attempt and the crime, but only the crime. A criminal attempt consists of a specific intent to commit the offense coupled with some overt act in furtherance of the intent that goes beyond mere preparation (Bruce v. State). There are two intents that P needs to prove: (1) intent to do the act and (2) specific intent to commit the crime. This means that D needs to do the act voluntarily and that D must have the specific intent required for the crime, which in some cases may be a more culpable state of mind than the completed crime (see bullet below). P also needs to prove the act, which needs to corroborate the culpable intents. However, some behavior may be innocent without the culpable intent, and we do not punish mere thought. Therefore, in order to charge D with attempt, P needs to look at D’s acts leading up to arrest and see whether we can infer intent from the acts – do the acts corroborate the intent?M1 and M2: The “knowingly” and “recklessly” intents are sufficient in murder when the V actually dies, but they are not elements of attempted murder, since attempt requires the specific intent to kill (People v. Gentry). For M2: need intent to do the act, intent to kill without P&D, and a non-fatal act. There is no attempted recklessness (can’t attempt to consciously disregard). Felony Murder: Because Felony Murder requires no specific intent to kill, and criminal attempt is a specific intent crime, attempted FM does not exist (Bruce v. State, Supreme Court of Maryland)Voluntary Manslaughter: Attempted voluntary manslaughter exists, since the offense is “an intentional homicide, done in a sudden heat of passion, caused by adequate provocation.” D may have been provoked to have an intent to kill, just missed or inflicted a non-fatal wound. Note that Voluntary Manslaughter does not require specific intent to kill, but attempted MS has this higher burden of proof and P must prove the specific intent to killInvoluntary Manslaughter: However, involuntary MS is an “unintentional homicide, done without malice…” and therefore attempted involuntary MS does not exist.Statutory Rape: Although the statute does not require intent, attempt is established when there is the general intent to engage in sexual intercourse (the kind of culpability otherwise required for commission of crime) and D takes a substantial step in a course of conduct planned to culminate the crimePolicy Outlier Rationale: Since mistake of age is irrelevant with respect to substantive offense, it is likely irrelevant with respect to the attempt Attempted statutory rape cases are about the balance of policy between strict liability v. specific intent; we as a society absolutely want to prevent this type of behavior and attempt with general intent is sufficient to deserve punishment[Proving Attempt Checklist]Intent to do the act (voluntary)Specific intent to commit the offense required (general malice insufficient)Higher burden of proof with regards to intent, because we don’t punish mere thoughts when there was no result of specific harm doneNeed (1) intent to do the act, (2) specific intent to commit the offense and (3) overt acts in furtherance of the intent, and acts must corroborate intent and go beyond mere preparationSome behavior may be innocent without the culpable intentWhat can we infer from the acts? Do acts corroborate intent?MPC: The requirement of purpose extends to the conduct AND to the results, but D’s purpose need not encompass all of the circumstances included in formal definition of an offense; it is sufficient that D acts with the culpability that is required for commission of completed crime, which in the case of stautory rape is none at all. Prosecution will want to elongate steps up to the final act of D then shorten the steps left into basically one final step. The Defense will want to shorten steps up to the final act of D then elongate what is still left for D to do to consummate the crime[Tests for attempt]MPC Substantial Step Test: The D acts in a way that furthers his goal in completion of the crime. Modern courts use this approach, favors PIn State v. Reeves, court held that “when an actor possesses materials to be used in the commission of a crime, at or near the scene of the crime, where the possession of those materials can serve no lawful purpose of the actor under the circumstances, the jury is entitled, but not required, to find that the actor has taken a ‘substantial step’.” Any substantial step towards the commission of the crime, even during the “mere preparation” found insufficient in Mandujano, can constitute the actus reus of attempt. Last Proximate Act Test, favors D: D is so close to the completion of the crime that there is nothing left to do but to consummate the offense.In cases where D solicits help from another for the final act, if the solicitation is successful D has done all in his power left do and is guilty of attempt [Defense of Abandonment]The defense of abandonment may be available depending on the reason the defendant stopped the crime. If the D internally comes to his own determination of abandoning, thereby completely and voluntarily renouncing the crime, this may be accepted as a defense. (If D was working with others, as in he was in a conspiracy, he also needs to notify every member of his renunciation and make efforts to prevent the crime from being completed. If the D reassesses the crime on his own, his moral culpability is actually lower and since there was no social harm actually created, society will not punish him for this. On the other hand, if D stops the crime for external reasons, such as police intervention or other intervening force, this will not be accepted as a defense. D still retains his morally culpable state of mind and may reattempt the crime if the opportunity arises.[Defense of Impossibility]If crime cannot be completed for factual or legal reasons, can you be guilty of an attempted crime?Factual Impossibility: If you reach into an empty pocket, can you be charged with attempt to theft? Because there is nothing to take, so there is no theft, but you can still be charged you have acts, you have culpability, it’s only a factual circumstance that causes D to not have committed theftFactual Impossibility is usually never a defense for attemptLegal Impossibility: Undercover cop chats up a pervert in a chat room and they decide to meet at a hotel to have sex. D clearly took steps to commit the crime and had the criminal intent, but an element of the crime (minor) was missing.In People v. Thousand, the Supreme Ct. of Michigan decides “attempted distribution of sexually explicit materials to minor” exists even when the “minor” D spoke to online was an undercover copD could not be charged of the actual crime, in which the minor is a necessary element, but D is charged with attempt, and possessed the requisite criminal intent to commit an offense and took action toward the commission of the offense. The notion that it would be impossible for D to complete the offense is irrelevant to the analysis. Legal impossibility may be a defense to attempt – there is no real rational distinction between factual and legal impossibility, and as long as State proves intents and corroborating act, attempt can be proven[CONSPIRACY]Conspiracy is a crime of agreement. There needs to be a target crime in order to charge D of conspiracy. Unlike attempt, conspiracy does not merge into the completed offense. D can be guilty of both conspiracy and the offensive crime. Our society discourages this type of “group crime” so this partnership for a criminal purpose is viewed as dangerous enough to deserve its own separate punishment. The police may intervene in the early stages of the target offense; the crime does not require that the unlawful target offense be completed or even started in order for a guilty conviction of conspiracy.[Proving Conspiracy]Mens Rea: We can prove intent from the words spoken or acts done both before and after an offense as well as the information given to D (D’s knowledge). Intent Common Law: A person acts intentionally if his conscious object, or purpose, is to cause the result OR if he acts with knowledge that it is practically certain to occurMost jurisdictions and MPC require “purposefully” and not “knowingly,” but P may infer purpose from knowledgeTwo specific intents required:Intent to agree with each otherIntent to commit the unlawful act, this must be separate from the first intentINFER this intent from: association with alleged conspirators; knowledge of commission of crime (see below); presence at the scene of crime; participation in the object of conspiracyImplied malice murder requires an intent to do some act, the natural consequence of which are dangerous to human life. When killing is the result, malice is implied. Because 2DM implied malice murder lacks an intent to kill, there can be no conspiracy to commit implied malice murder (People v. Swain; CA; 1996 p.806). Knowledge Alone is insufficient without the intent to promote the crime. In People v. Lauria 1967 (p.809), D was not convicted with conspiracy to commit prostitution when he knew that prostitutes were using his telephone answering service to conduct their unlawful business. However, intent may be inferred from knowledge in the following ways:Direct evidence that he intends to participateThrough an inference that he intends to participate based on:Special interest in the activity:Purveyor of legal goods for illegal use has acquired a stake in the ventureNo legitimate use for the goods or services exist; supplier must necessarily have an intent to further the illegal enterprise since there is no known honest use for his goodsVolume of business with the buyer is grossly disproportionate to any legitimate demand or sales for illegal use is a high proportion of the total businessAggravated nature of crime itself (felonies over misdemeanors, since the duty to report crime or dissociate oneself with crime increases as the offenses become more serious)Actus Reus Timeline (p.800 #4)Solicitation (request another to commit crime)Conspiracy (agreement to participate in the crime)Attempt (substantial step/dangerous proximity) some jurisdictions require this, others do notCompleted Offense Bilateral v. Unilateral AgreementSome jurisdictions require a bilateral agreement, in which case D wouldn’t be charged for conspiring with an undercover cop, because the cop did not share the bilateral intent to commit the crimePolicy Reason: If we only have one person intending the crime, do we have the type of social harm we want to punish in conspiracy?Statutory Reason: In order to truly satisfy the statute, we need more than one intentOther jurisdictions only require a unilateral agreement, to punish the same culpable mindset of D[Attempted Conspiracy (p.800 #5)]This is not logically impossible. If you break down the elements:For attempt, we need to show a specific intent to commit the crime (conspire) and an overt act to corroborate (substantial step in furtherance of completing conspiracy).For conspiracy, we need the intent to agree and the intent to commit the target crime (let’s say arson).If the prosecutor can find the facts to support all of these elements, it is theoretically possible to charge someone with the “attempted conspiracy to commit arson.” [Pinkerton Liability Theory]In Pinkerton v. United States; SCOTUS; 1946 (p.801), the Court held Pinkerton guilty of the crimes that his co-conspirator committed while he was incarcerated. The Court found that “so long as the partnership in crime continues, the partners act for each other in carrying it forward.” The overt act of one coco will be the act of all cocos in the conspiracy, as long as it is (1) reasonably foreseeable results of conspiracy; (2) in furtherance of the conspiracy; AND (3) there was no affirmative action from a coco to withdraw from the conspiracy. MPC rejects the disproportionally of the Pinkerton doctrine, stating that the “law would lose all sense of just proportion if simply because of the conspiracy itself each conspirator were held accountable for thousands of additional offenses of which he was completely unaware and did not influence at all.” MPC §2.06 at 307 (p.803)Under Pinkerton, all minor parties in a large conspiracy would be found guiltyE.g. #1: A refers B to have an illegal abortion performed by C. Under Pinkerton, A can be charged with all the illegal abortions C ever performed as members of one large conspiracyE.g. #2: Moussaoui was incarcerated during the 9/11 attacks, but was engaged in parallel suspicious activity to other convicted terrorists before his arrest. There was no evidence of the agreement, but M was charged with the 9/11 attacks as part of a large conspiracy. P does not need to prove the identity of the specific people M conspired with, just that there must have been (inference) others conspiring in general, based on the parallel activities. [Types of Conspiracies]Wheel ConspiracyThis type of set up has the mastermind at the center, or the hub, with different spokes of the hub connected to the central principal. If the different spokes know of each other AND have a “community of interest,” then there is a rim, and the wheel conspiracy is completed. If the spokes have nothing to do with one another, the hub will be charged with multiple small conspiracies instead of one large conspiracy.Chain ConspiracyIn a chain conspiracy, the ends of the chain may not know of the identity of one another, but know of the existence of one another by the nature of the crime. The classic example is a drug deal distribution, where there is a supplier-wholesaler-retailer-dealer sequence. The chain conspiracy is treated as one large conspiracy. One Conspiracy for Multiple OffensesA single agreement to commit a crime does not become multiple agreements overtime or over multiple offenses. (Braverman v. United States; SCOTUS; 1942; p.836)[Prosecuting One Large Conspiracy]The prosecutor would prefer to charge all those connected to a conspiracy in a single trial (p.804-805). Using Pinkerton Liability, prosecution can load up the indictments. There are also many procedural advantages of having one trial for all major and minor cocos, such as:Exception to the Hearsay Rule: Hearsay is a statement made by someone other than a witness testifying at trial. This is normally inadmissible evidence since it is both unreliable and unfair to D that another’s statement not under oath and not available for cross-examination can be used. However, an out-of-court statement made by a conspirator, while participating in the conspiracy, may be introduced in evidence against all of the cocos. Hearsay is only supposed to be brought in after P establishes a prima facie case of conspiracy. However, the conspiracy is often proven by the evidence brought in on the assumption that conspiracy existed. The standard to prove the existence of the conspiracy is also a lower standard than the criminal standard – P only needs to prove by preponderance of the evidence in order for hearsay to be admitted.Efficiency: One large trial is simpler and more efficient financially for all the defendants and witnesses. Therefore, it is difficult for the individual to make his own case stand on its merits in the minds of jurors who are ready to believe that all were involved. If he is silent, he is taken to admit it and often cocos contradict and accuse each other. D may be tried by unsympathetic jury: Under the Sixth Amendment, the accused has the right to trial by an impartial jury in the state where the crime was committed. However, cocos may be brought to court in any jurisdiction where any of the agreement or acts were performed, leaving D to defend himself far away from anywhere he actually committed the crime.Charge for continued crime: SCOTUS has held that a conspiracy does not automatically terminate because law enforcement has defeated the object of the conspiracy. Therefore, special conspiracy rules such as the Pinkerton Doctrine and coco hearsay can continue to apply even though the object of the crime has been defeated.E.g. 5 people are in a drug conspiracy. Cops confiscated the drugs but 2 of the members do not know this, and continue on with their overt acts. They can still be charged with conspiracy for acts after the confiscation. [Withdrawal and Renunciation]Because conspiracy is the crime of agreement, withdrawal and renunciation do not “undo” the guilty charge created from the original agreement. With renunciation D makes the internal decision to stop participating in the crime, but D is still liable for conspiracy as well as subsequent crimes. With withdrawal, the coco is still guilty of conspiracy to __, but he is no longer liable for the actions of his cocos going forward or for the completed offenses (People v. Sconce 1991 p.845). In order to successfully withdraw from the conspiracy, the co-felon must (1) notify each coco of his withdrawal and (2) thwart the purpose of the conspiracy. Therefore, it is almost impossible to withdraw from a conspiracy, (to thwart), and if you are a part of a chain conspiracy, there is basically no way to withdraw. [ACCOMPLICE LIABILITY]Accomplice liability is a theory by which we extend liability to a person who aids, abets, or encourages another during the commission of a substantive crime. In contrast, conspiracy is a crime in itself as well as a way to extend liability (Pinkerton). For instance, you cannot get charged with accomplice in a murder crime, you get charged with murder AS an accomplice. The result of charging a felon through accomplice/coco liability is the same, but they will be charged using only one of these mechanisms for analysis.Pinkerton – was in jail while brother committed crimes; no accomplice liability (was not there and did not encourage emotionally) but Pinkerton liability (continuance of conspiracy)Cook – stood by as his brother raped V; accomplice liability (yelled encouraging words, did not call police) but no Pinkerton liability (opportunity crime, no pre-agreement with brother)***Check for conspiracy and then Pinkerton liability. Check for accomplice liability SEPARATELY. Don’t assume that because you have one you have the other – make independent arguments. [Proving Accomplice Liability]Accomplice liability is the same throughout the preparation, perpetration and completion of the crime; accessory after the fact is a lesser charge. If the participation is unknowing or unwitting, actor is only an instrumentality, not an accomplice. In common law, there was no charge for accomplices without a convicted principal. Today, we only need to prove that a person (principal does not need to be identified) was committing the crime. Even if we find the principal, the accomplice may be guilty when the principal is not, or the accomplice may even be guilty of a greater crime (i.e. Principal has an affirmative defense while accomplice did not know of the defense and aided intending to aid in the crime).In United States v. Lopez (p.884), girlfriend’s escape of prison was justified as necessity when she was threatened with her life. Boyfriend aided girlfriend in the escape but was not charged as accomplice since her crime was justified (act committed, not wrongful) and he knew it was justified, as opposed to excused (act wrongful, but actor personally not liable). Mens Rea and Actus ReusIn order to prove accomplice liability, ask whether the defendant knows of the crime AND:Has taken some action:Gave assistance (physically help);Gave encouragement (psychological; if look out or bystander, does not actually have to yell or cheer);Failed to perform (omission as overt act) IF there is a legal duty to prevent the crime;Mere presence enough IF there is a pre-agreement and principal knows of the presence (provides encouragement/silent approval)Duty to act increases as the serious nature of crime increasesNO but-for required: the aiding does not have to actually help the commission of the crimeAttempted Aid, if known to actor, does not need to be successfulAttempted Aid, with no pre-concert, is not enoughHowever, even if Principal does not know that A is aiding and abetting but A in fact deliberately aided, then A has the requisite mens rea and the dual intent can be inferred from the actionHad a dual intent (both required):Intent to aid the principalIntent to assist in the crime/intent that the offense be completedIf crime is a general intent crime (i.e. rape), only require general intent in accompliceNo intent required for a separate crime that occurs as a natural/foreseeable consequence of the target crime (e.g. murder during commission of intended robbery)May infer intent from the knowledge & the actAlso may infer intent from a stake in the ventureAbove-market salesBulk of salesNo legitimate use of goods or volumeKnowledge alone generally not enough; mere knowledge is not assistance (State v. Hoselton p.851; D not found guilty of stealing when friends broke into boat and took items in his presence without his active participation)You need knowledge AND intent to participate With serious or dangerous crime, knowledge may be enoughP needs to show that mere knowledge of D somehow helped the perpetrator[Model Penal Code Accomplice Liability]§ 2.06(3): A person is an accomplice of another in crime if:With the purpose of promoting or facilitating the offense, heSolicits the other to commit it, ORAids or agrees or attempts to aid the other person in planning or committing it, ORHaving a legal duty to prevent the offense, fails to make proper effort to do so§ 2.06(4): When a particular result is an element of an offense, an accomplice must act with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offenseWhen conduct produces a result prohibited by law, accomplice’s mental state with respect to that result must be evaluated separately from anyone else’s culpable mental stateIn Riley v. State (p.858), both defendants convicted on two counts of first-degree assault when both fired rifles into a crowd at bonfire. Though both only had the mens rea of recklessness according to the court, this culpable state was found sufficient to convict both of first-degree assault either as principal or through accomplice liability. This section is relevant where unanticipated results occur from conduct for which the actor is responsible for under subsection 3Felony Murder: In State v. Linscott (p.863), Linscott and Fuller conspire with two others to commit armed robbery. When Fuller shoots the V, Linscott is convicted of murder as accomplice though his intent to aid/intent in assistance was only in respect to the armed robbery (not murder). Court held that accomplices are liable for natural and probable consequences of their criminal enterprise, notwithstanding an absence on their part of the same culpability required for conviction as a principal to the crime. Implied Malice Murder: Accomplice sets Principal up with a drug dealer knowing it is for the illegal distribution of drugs. P meets dealer and gets busted by the cops. Trying to get away, he runs over a person on the road even when he saw the person crossing a crosswalk. Can A be charged with second degree murder through acc. lia. if there is no felony murder statute? An accomplice is responsible for all natural and foreseeable consequences of the crime that A originally aided. Therefore, if it was foreseeable from a drug deal that someone would be run over, A will be liable. Strict Liability Statutory Rape (p.871): Mormon priest charged with statutory rape as accomplice when he married a 14yo to a 19yo. Since he aided the marriage and statutory rape was a natural and foreseeable consequence of the marriage, priest can be charged as an accomplice.[Defenses to Accomplice Liability]D may have a defense to accomplice liability if he undoes the aid, notifies the Principal and makes an effort to thwart or neutralize crime. The difference between conspiracy and this is that now the accomplice is not liable for any part of the crime. In contrast, a conspirator is still guilty of the conspiracy (agreement). [AFFIRMATIVE DEFENSES]Affirmative defenses can provide a justification or an excuse to the offense. This acknowledges that a crime occurred and that defendant committed the crime, but the act is somehow justified or excused. A justification means that an act was committed, but it was not wrongful because it was committed in self-defense or necessity. An excuse means that the act was wrongful, but the actor is not personally held accountable for reasons of duress, coercion or insanity. [SELF-DEFENSE AS JUSTIFICATION]Self-defense is an affirmative defense that allows actor to protect oneself or others from death or GBH by using deadly force. The defense must show:Actual/apparent threat of death or great bodily injuryMost states have an objective, reasonableness requirement. There is imperfect self-defense when D acts with genuine, but objectively unreasonable belief that death or GBH will occur (these cases are mitigated to manslaughter). No reasonableness requirement in MPC:MPC §3.04(2)(b) requires that a D charged with murder need only show that he “believed that the use of deadly force was necessary to protect himself”§3.09(2) states that if the belief was wrong and was recklessly or negligently formed, however, he may be convicted of the type of homicide charge requiring only a reckless or negligent criminal intentIn analyzing subjective belief:Take into consideration all the facts and circumstances known to actor as well as background and other relevant characteristics of actor/victim, such as size and strengthIn State v. Wanrow (p.525), D allowed to admit evidence regarding what she knew about V (sex offender) as well as evidence on relative strength and sizeProportionality of the force used on actorNecessity; Belief in imminent perilMPC uses “immediately necessary”No possibility of safe retreatMPC: If the actor knows he can avoid the necessity of using such force with complete safety by retreating; use totality of circumstances analysis, not in retrospect of whether there was such an opportunity but whether actor subjectively knew at the time that the opportunity was thereIn United States v. Peterson (p.500), D argues that he had no duty to retreat from his yard invoking the Castle Doctrine. This doctrine is an expression that “a man’s home is his castle,” and a person who is attacked at home through no fault of his own is under no duty to retreat from there. This doctrine reflects the belief that there were fewer safer sanctuaries than the home. Florida “Stand Your Ground” laws: no duty to retreat if a person is somewhere he/she has right to beActor cannot be the aggressor/cannot place himself in the situationA pre-emptive strike in belief of imminent/unlawful force is OKThere is an exception to this rule if the other party escalates the confrontation; A starts fight by slapping B, B pulls knife on her, now A can use self-defense deadly forceActor cannot use deadly force to protect only propertyIn People v. Ceballos (p.553), D found guilty of assault with deadly weapon when he sets up a trap gun to prevent entry into his garage for theft. D tries to use Defense of Habitation: there is no requirement of proportionality when actor uses deadly force to prevent unlawful and imminent entry of home (rationale that entering home is not about protecting your property or house but protecting your privacy and safety)Can use deadly force to repel the intrusion if actor reasonably believes other person intends unlawful and imminent entry/injure the owner or occupants or commit felonyIrrelevant Argument because:Garage may not be considered homeD was in fact not “home” so doesn’t matter what he would have done if he were homeMechanical nature of trap gun no distinguishing lawful/unlawful entry; what if it was a fireman coming in to put out a fire?[Transfer Justification Doctrine]If D kills someone else while trying to defend himself, i.e. you shoot the aggressor and the bullet goes through his body and hits an innocent victim, D can transfer the self-defense; this can be an absolute defense and D will not be held guilty. [Cases of Battered Women]Battered Woman Syndrome, a type of PTSD, is not a defense on its own for women who commit murder and claim self-defense. Prosecution will always argue that no matter how horrible your situation, a person cannot kill another without the elements satisfied. However, you use this syndrome to analyze the elements of self-defense and the actor’s subjective beliefs. You can also think of this as a pre-emptive strike to protect oneself.Actual/Apparent threat of death or GBH: established through past abuse and past threats that husband has followed through onProportionality of the force: if previously harmed physically coupled with threats of death, plausible argumentNecessity/Belief in imminent peril: For a woman suffering from BWS, the “imminence” of the danger is perceived in a different way; she sees that the danger is coming at any momentNo possibility of safe retreat: for a woman suffering from BWS, there is no escape; she needs the abuser’s dominance psychologically and believes that if she leaves, he will find her and punish her even moreCannot be aggressor/place herself in situation: P can argue that she put herself in the situation but refer back to BWS, she cannot leave him psychologically[Defense of Others]In People v. Kurr (p.549), court found that “Defense of Others” could be invoked to protect a 16-week, non-viable fetus. There are two theories:Alter Ego Rule: actor can put him/herself in V’s shoes. Only permitted to proportionate amount of force (factual and legal) of aggressor. If aggressor was actually a policeman acting in his duty, actor does not have legal right to meet policeman’s force even if actor reasonably believed that V was in danger. The policy reason is that one should evaluate their ability to attack another before acting.Reasonable Belief Rule: only asks whether actor reasonably believed V was in danger. The policy reason behind this rule is that no purposes of punishment (deterrence/retribution) are served by punishing a Good Samaritan. [NECESSITY AS JUSTIFICATION]The defense of necessity is a public policy defense: we balance the defendant’s act with what would have happened without the act to see if it prevented a “greater evil.” Prosecution will want to prove that there was a lack of emergency. MPC 3.02 requires that there is an honest and actual belief that the conduct was necessary to avoid a greater evil. Actor must in fact avoid the greater harm and his actions must be objectively reasonable as well. This is about the choice of balancing evil; actor needs to make the right choice. Weighing is not subjective, but a fact at trial. Let statutes guide on this, then use cases and MPC. Factors of Necessity:Historically induced from forces of nature (natural disasters causing emergency)No adequate alternativeActing voluntarily and in free will to void a greater evilUsually a choice made in the general welfare of others/good of publicE.g. breaking into house during storm, speeding to curtail criminal, giving out prescription drugs in an emergencyForeseeable harm must in fact be less than the harm that would occur from obeying the lawIf actor does not know that conduct is necessary, no defenseHowever if actor in fact believed there was an emergency, it may be justifiableHarm avoided must be immediate and dire (emergency situations)Proportionality [DURESS AS EXCUSE]The defense of duress is used when actor is coerced to act by a threat of unlawful force. This excuse is unavailable if actor purposefully placed himself in the position of duress. There is no presumption that a woman is coerced by her husband (relevant in cases of BWS where P may argue that D placed herself in situation). Duress is narrowly construed as a policy matter. Duress is not an excuse for an intentional killing if the actor knows the victim was innocent.This is about the lack of choice/free will. Usually need to show but-for (would not have committed crime if no duress)MENS REA: usually the requisite intent is lacking since actor is doing something involuntarily. However, this is not always the case: e.g. “If I don’t succeed in this robbery I will kill your friend.” actor may genuinely want success in robbery, forming the intent, but the intent was also formed under duress. Factors of Duress:Coercion by “human force” as opposed to natural forcesActing involuntarily, compelled to do something by anotherDid not place him/herself in situationElements of DuressImmediate threat of death or GBHWell-grounded fear that threat will be carried outNo reasonable opportunity to escape harmIn Contento-Pachon (p.587), could not escape with his entire family when he only had income of taxi driver in Columbia and no opportunity to report when police corruptIn Unger (p.591), D could not report crimes for fear of retaliation/lack of evidence in jail situation. Lack of free will? Acted on very well thought-out plan; staking out at motel and calling friends for money for an attorneyAvoiding greater harm? However the choice is not what is better for the actor; the choice is about what is better for publicEscape of non-violent criminal is less evil than being sodomized/threatened in jail?Usually no duress defense for prison escapeSpecial case here where he was younger/smaller in stature; history of good behavior; in minimum security only for theft; no direct social harm caused by his being in motel roomMPC 2.09(2)Coerced to act by a threat of unlawful force and person of reasonable firmness would have been unable to resistUnavailable if purposefully placed self in position of duress through recklessness or negligence[INSANITY AS EXCUSE]Insanity is an affirmative defense. The D needs to persuade the factfinder that D was guilty at time of the crime. D can be insane at the time of crime, but competent to stand trial, or sane at the time of crime but incompetent to stand trial (the two are independent). Mental illness is not automatically considered insanity. There is an underlying rationale that we should not punish the insane: no deterrent or retribution value (when there is no intent the act is excused). [Proving Insanity]D needs to prove insanity through expert witnesses and witness testimony (family and friends that can track the change (or non-change) in behavior.The M’Naughten Rule (p.619): At the time committing the act, D was laboring under such a defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing, OR (2) if he did know it, that he did not know that what the was doing was wrongCriticisms of this rule: emphasis upon knowledge of right/wrong abstracts a single element of personality as the sole symptom of mental illness; does not recognize volitional or emotional impairments, solely focusing on the cognitive element; all-or-nothing approach which requires total incapacity of cognitionThis rule severely restricts expert testimony, depriving jury of true picture of D’s mental conditionThe Irresistible Impulse or Control Test (p.620): Courts inquire into both cognitive and volitional components of D’s behavior. Criticizes M’Naughten Rule’s narrowness: MR is about capacity to know, this rule is considered in terms of complete destruction of governing power of mind. “Dethrone of reason” deprives D the capacity to control his behavior.The Product Test (p.621): An accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. Model Penal Code Test (p.621): Relieves D of responsibility under two circumstances: (1) when, as a result of mental disease or defect, D lacked substantial capacity to appreciate the criminality (wrongfulness) of D’s conduct; OR (2) when, as a result of mental diseases or defect, D lacked substantial capacity to conform his conduct to the requirements of lawIn State v. Wilson (p.631), court analyzes the word “wrongfulness” used by state legislature instead of the word “criminality.” The CT court interprets MPC Insanity rule:MPC rule encompasses both cognitive and volitional prong (combines MR and II tests)Focuses on D’s actual appreciation of, rather than merely his knowledge of, the wrongfulness of conduct; “detached or abstract awareness” of wrongful conduct insufficient; subjective, D needs to “grasp it in a way that makes it meaningful in the life of the individual”The word “wrongfulness” instead of “Criminality” introduced to leave legislatures to decide which of the standards to adopt; if it wishes, legislatures could introduce a “moral issue” into the testCompetency to Stand TrialState presumes that a defendant is competent to stand trial and requires D to prove incompetency by preponderance of the evidence. D is incompetent to stand trial unless D has sufficient present ability to consult with and aid the lawyer and has a rational understanding of the charges and proceedings against D. If found to be incompetent, D committed to mental health facility for a period of time that may exceed the potential maximum sentence for the offense charged. D may be brought back and recommitted for a very long period of time. SCOTUS ruled that D committed solely on account of incapacity cannot be held more than reasonable period of time necessary to determine whether there is probability of capacity in the future. If D will never regain capacity, State must institute the civil commitment proceeding that would be required for any other citizen or release the D. Court opined that such conditions as to justify use of anti-psychotic drugs to restores competency would be rare. However, Constitution permits government involuntarily to administer anti-psychotic drugs only if:Medication substantially unlikely to have side effects that undermine fairness of trialNecessary significantly to further important trial-related interestsPre-trial Assertion of Insanity PleaNot Guilty by Reason if Insanity (NGRI)Courts divided on whether judge may interpose insanity plea over objections of competent defendantDefense must notify prosecutor of plan for NGRI before trial and submit to a psychiatric evaluation by court-appointed expertGuilty but Mentally Ill (GBMI)Fact-finder may return verdict of GBMI in any case where it could return verdict of NGRIGMBI when prosecutor proves beyond a reasonable doubt all of the elements of the crime, no defense including insanity are proven, and the D suffers from a mental illnessPost-Trial DispositionIn some jurisdictions, an insanity acquittee is automatically committed by the criminal court to a psychiatric facility for custody, care and treatment of mental illness. In other states, commitment is not automatic but local common law permits or requires the court to order the acquittee detained for observation and determination of whether D remains mentally ill and is subject to civil commitment.A person may not be civilly committed unless he is BOTH (1) presently ill and (2) dangerous to himself or others. State needs to prove these two elements by clear and convincing evidence. ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download