Loyola University New Orleans



Criminal Law Outline

Professor Rault

Chapter One - History

I. History of Criminal Law

Ÿ Nulla peona sine lege - no punishment w/o a statute

Ÿ Magna Carta shaped concepts of constitutional law

Ÿ Supremacy clause - Federal constitution “supreme law of land”

Ÿ Vagueness concept - the criminal statute must be sufficiently specific and clear that a person of reasonable intelligence would understand what is prohibited by the statute. Otherwise can be “void for vagueness”

Ÿ Ex post facto laws - criminal statues that retroactively create new crimes or increase penalty by which a crime is punishable

Ÿ Purposes of Criminal Law:

7. Protection of society

8. Specific deterrence (deterring criminal of specific crime)

9. General deterrence (deterring general public from committing crimes)

10. Rehabilitation

11. Retribution

II. Pre-Trial Procedure

Crime - Police Investigation - Arrest - Bail hearing/Counsel appt. - Indictment filed - preliminary exam/motion date set - pre trial motions filed - hearing set - pre trial motions heard - discovery - trial date set - preparation for trial -plea bargaining

III. Trail Procedure

Voir dire exam of jurors - challenges for cause - empanelling and swearing - states opening statement - case-in-chief state - witnesses - defense case (optional) - objections to evidence deemed inadmissible - case-in-rebuttal (state) - states close - defense case - States final close - Judge’s instructions - Jury retires - Deliberations - return verdict

IV. Post Conviction Procedure

Guilty verdict - motion in arrest of judgment - motion for a new trial - date set for sentencing - pre-sentencing investigation ordered - motion for appeal - preparation of transcript/return date set - briefs to appellate ct - oral arguments - appl. Ct judgment - appeal to higher cts (if applicable) - state and federal habeas corpus relief - appeals from habeas corpus denials - All judgments final

V. Statutory Interpretation

A. Literal vs. Non-literal interpretation p. 1:23

1. Inclusio unius exclusio alterius - inclusion of one is exclusion of others, proceeds from an argument of contrast since the law expressly covers certain items, it was not intended to apply too other things.

2. Louisiana approach: cannot be extended by analogy so as to create crimes not provided for in the statutes

B State v. Fontenot (1904) Literal Interpretation

( charged with setting fire to wooden box sets of a merry-go-round but the statue did not specifically include box seats. Among other things it included bridges, sheds, grain, wood in the cord, etc. and “other goods.” The non-literal interpretation of the word “goods” could include anything of value. A literal interpretation would not include the box seats. Ct. rules that if the legislature intended a broad interpretation it would not have listed so many things specifically.

C. Holy Trinity Church v. US (1892) Non-Literal Interpretation

Church appeals law that forbids importing foreign laborers. The church brought in a minister from abroad and the US found for the church taking a non-literal meaning of the statute that read “a labor or service” of any kind. The reasoning was because the work of a minister was not the legislative intent of the minister to prevent.

D. McBoyle v. US (1931) Non-Literal Interpretation

( stole an airplane and was charged under a statute that read “term motor vehicle shall include an automobile, automobile truck, automobile wagon, motorcycle, or any other self-propelled vehicle not designed or running on rails.” The rule of lenity says that in doubt of the construction of statutes the court should err in the ( favor. The court held there was no theft under this statute because when the statute was enacted in 1919 there were no airplanes, therefore the legislatures could not have intended the statutes to include airplanes.

E. State v. Carr (2000) Illustrates Rule of Lenity

( charged with DWI when riding a bicycle when intoxicated because the statute read “…or other means of conveyance.” Ct. erred on the side of ( under rule of lenity because there were two reasonable interpretations under the law.

F. Regina V. Ojibway (fake case) Strict/Literal Interpretation

Indian riding on a horse that had a feather pillow on its back and was then hurt. The man shot the horse and was charged under the small bird statute that forbids the killing of a small bird. The ct. held that the animal had feathers on its back and was therefore a bird. Fake case to demonstrate strict interpretation.

G. Smith v. US (1993) Broad Approach Interpretation

“Use of a firearm during a drug-trafficking crime” used gun to trade for drugs, not what the typical use of a gun as a weapon. Subject to two reasonable interpretations, ct took broad approach under rule of lenity.

VI. Statute Interpretation:

1. Legislative history

2. Assess evil statute intends to minimize

3. Context

4. Ejusdem generis - on the other hand (if it includes this it should also lend itself to this)

5. Assume most recent interpretations from other cases

Chapter Two - Concepts of Culpability

I. Actus Reas (Act or Omission)

Ÿ Engage in willful act or omission to act

Ÿ Act must be voluntary

Ÿ Omission creates no liability unless there is a duty to act (duty to pay taxes -if you don’t omission w/duty that is unlawful)

Ÿ Duty arises out of statutes, relationships, contracts, or voluntary assumptions that include:

1. Duty based on relationship (parent/child, husband/wife)

2. Duty based on statute (civil statue that obligates a child to care for parent)

3. Duty based on contract (nanny duty to protect child)

4. Duty created by voluntary assumption (rescuer may not leave victim in worse position than he found him)

5. Duty based on creation of peril (trapper sets trap, child trapped, trapper has affirmative duty to release the child)

6. Vicarious duty (parents liability for torts of a child - can’t stand by while your 8 yr old child strangles an infant)

7. Duty of landowners (duty to care f or invitees, warehouse for employees trapped by a fire due to the owners failure to provide an escape)

II. Mens Rea (State of Mind)

Ÿ Major mental states defined by criminal law are “intent” (specific and general) and “criminal negligence”

Ÿ Cts. Tend to rely on and read in mens rea because its ingrained in history - even when it is not specifically state in statute

Ÿ “Strict liability” offenses require no mens rea to est. guilt. Typically matters that relate to public safety (ex. Laws preventing running of red lights)

Ÿ Criminal Negligence - requires gross deviation below reasonable standards of care, absent state of mind

Ÿ General Intent- active desire, purpose, fact that must be proved by circumstantial evidence, when specific or general is not est. by legislature general will suffice

Ÿ Constructive possession - creates a fiction, something that doesn’t exist (ex. We will treat as if he had possession) be wary of this

Ÿ Transferred Intent - if offender has necessary intent, misses target but similar harm is still done (ex. to a 3rd party) then there is still violation under the doctrine of transferred intent.

A. Francis v Franklin (1985) Intent

( charged with malice murder in Georgia for which intent is an element of the offense. ( shot into a house in a prison break while trying to obtain a car from victim. He shot through the door killing the man. The jury was instructed that the act is presumed to be the product of a persons will, thereby shifting the burden of proof to the (. ( found not-guilty due to a violation of the 14th Am. Due Process Clause.

B. State v. Barnes (1971) Intent

( charged with drug possession, but question as to whether he had knowledge that it was in his pocket. Intentional possession is a requirement of the offense.

C. Regina v. Tolson (1889) Doctrine of a Guilty Mind

( married after she thought he husband of less than a year was killed traveling on ship to America. She waited six years before remarrying, but she was charged with bigamy. The judge directed the jury to that the ( could not be that she had a belief in good faith that he was dead. Relied on Regina v. Prince where a man took what he thought was an 18 yr old girl from her father - he later found out she was not 18 and was charged whether or he had guilty intent (doctrine of a guilty mind). Interpreted this case the same way with a narrow interpretation of the law. ( found guilty.

D. Staples v. US (1994) Intent v Knowledgeability

( charged under a statute that had strict penalties for automatic weapons that are not registered. ATF found a gun in his possession that had been modified from a semi-automatic weapon to an automatic weapon. ( claimed he did not know that the rifle had been converted and therefore did not know of the characteristics that made it a firearm under the act. ( claimed lack of knowledge of facts, not the law. The ct. determined Congress did not intend to eliminate a mens rea requirement for violation of the statute. Found for ( - non-literal interpretation. When in doubt “strict interpretation” of statute to provide fair notice to (.

Habeas corpus - post-conviction process directive from a ct. to someone (usually civil); literally “you have the body” -writ

Kinds of Culpability defined (Model Penal Code):

(1) Purposefully - a person acts with the conscious object to engage in conduct of that nature

(2) Knowingly - a person acts aware of his conduct

(3) Recklessly - consciously disregards a substantial or unjustifiable risk that he knows will likely result

from his conduct

(4) Negligently - when he should be aware of a substantial risk with respect to his offense that will result from his conduct

III. Specific and General Intent

Article 10 - criminal intent may be general or specific

1. Specific Intent - exists when the circumstances indicate the offender actively desired the prescribed criminal consequence to follow his act or failure to act.

2. General Intent - exists when there is specific intent and also when the circumstances indicate that the offender in the ordinary course of human experience must have adverted to the prescribed criminal consequences as reasonably certain to result from the act or failure to act.

Article 11 - the definition of some crimes require specific intent, while others no intent is required. Whether there was intent is a question for the jury. What type of intent is required is a question for the judge.

A. State v. Daniels (1959) Specific Intent

( was incarcerated and stepped out of line during meal time. Edwards a correctional officer told him to get back into line grabbing him by the arm. ( swung at and hit the officer and was charged with public intimidation is the use of “violence, force, threats, upon any of the following persons…to influence his conduct in relation to his position, employment, duty.” The ct assumed the statues require specific intent - runs contrary to Article II 2:24 -some, not all crimes must be committed w/specific intent.

B. Director of Public Prosecution v. Morgan (England 1975) Specific v General Intent

Morgan invited 3 men to his home telling them his wife was into sexual role-playing and he invited them to have sex with her. He told them she would put up a fight but that it was all a part of the act. The men raped her despite her protests. As the men claimed they did not know the sex was not consensual and therefore did not have the specific intent to rape her.

Specific intent is not specifically stated in the statute as a requirement. Isn’t rape always a crime of specific intent? (Can’t be general intent). Does this require a subjective reasonable belief on behalf of the men that she consented? If so that would make rape a negligent crime.

C. State v. Smith (1996) Intent & Negligence

( fired a gun into a home and was convicted of aggravated battery when the bullet hit someone in the home. Battery is the intentional use of force on the person of another. ( appeals whether it was “reasonably certain” that he would hit someone in the house. Statistical reasonable certainty? Could have been criminal negligence which doesn’t require general intent. Ct ruled against (’s. Rule: When you have intent there is no room for negligence. If someone has general/specific intent they can’t be criminally negligent.

D. Jackson v. Virginia (1979) Beyond Reasonable Doubt

Set the standard of review for sufficiency of evidence - appellate judges can not second guess the fact finding of the trial ct. Exception is if in viewing evidence - in a light most favorable to the prosecution - and determines that no reasonable jury could have made a contrary interpretation.

IV. Criminal Negligence

Differs from torts negligence:

1. Torts only requires a deviation of a standard of care, criminal requires a “gross deviation”

2. Contributory negligence not applicable in criminal negligence

A. State v. Moak (1980) Criminal Negligence

( was driving on highway when he thought he thought he saw oncoming headlights in his lane. To avoid a collision he veered off into a ditch and hit a child that was standing near a parked car. ( was charged with negligent homicide, convicted and appealed. Appeal ct ruled there was no evidence of negligent homicide because there was no showing of a gross deviation from the standard of care a reasonable person - can’t expect perfect action under emergency circumstances.

Rule: Criminal negligence requires a “gross deviation” of the standard of care and takes into consideration the circumstances surrounding the incident.

Rule: State v. Adams (1947) introduced the rule that if either specific or general intent are present there can be no negligence. Negligence is a crime absent of intent.

Criminal or gross negligence is distinguishable from “wanton and willful conduct” by the intent involved. Gross negligence excludes intent and consists of an unconscious disregard of an unreasonable risk of harm to others. Wanton and willful conduct consists of a conscious disregard of an unreasonable risk of harm to others.

V. Causation

The general principle is the acts or omissions of the ( must appear to be both the actual cause and the “legal” or “proximate” cause of the victim’s injuries.

Causation tests:

1. “But for” - cause in fact - Would the event have occurred but for the acts of the offender

2. Proximate cause - act produced a result similar enough to the result intended. Injury must not be too remote or unforeseen.

Must meet both the “but for” and proximate cause” test for causation.

Chapter Three: Parties to Crimes

Article 23 - the parties to crimes are classified as: (1) principals and (2) accessories after-the-fact

I. Principals

Article 24: All persons concerned in the commission of a crime whether:

1. Present or absent

2. Directly commit or aid and abet

3. Directly or indirectly counsels

To what degree to does a person have to be involved to be a “principal” to a crime?

A vicarious principal is an accomplice - can be liable for the offense only if he had the specific intent to assist to commit a criminal act. One may not be an unwilling accomplice to a crime - otherwise they are not an accomplice, as there is no such thing.

An accomplice aids, encourages, or abets the crime. “Abet” is the negative aspect of complicity while “assisting” is the positive aspect. Example: A bank teller who purposefully does not lock a safe.

Attorney’s are not accessories after-the-fact, even though they may knowingly represent a felon because of the 6th Amendment.

A. US v. Azadian (1971) Accessory

Appellant appeals a conviction for aiding and abetting the bribing of a public official of the draft board.

When the woman who had introduced the two men making a deal to fix the draft for one of the man’s son decided to back out of the deal. She tried to convince the men not to go through with it. Because she as the principal - announced an intent to withdraw the others could still be convicted.

The general rule is that it is illogical for an accessory to be convicted when the actual perpetrator is not convicted. The exception arises when the defense is a personal defense - example: put an 8 yr old child thru the window of a house to rob it. The child won’t be convicted due to the defense of infancy - but the adult will be as a “constructive principal.” Can’t use innocent agents in the commission of a crime.

II. Accessory v. Accomplice

Accessories - have to be to felony crimes, do not become principals, but still party to crime

Ÿ Those who received, sheltered, assisted or abetted another, knowing they had committed a felony are liable as accessories after0-the fact if they acted w/the intent of hindering or preventing the felons arrest or prosecution.

Ÿ Law no longer recognizes accessories before-the fact - only accessories after-the-fact.

Ÿ Test requires a voluntary act and the reasonable man objective test or a man in like circumstances.

Accomplice Liability - become principals to the crime

All persons who are accountable for crimes committed by another.

Not the perpetrator but is a principal or otherwise liable for the perpetrator’s act, regardless of whether he is actually present or not.

Conspiracy - an (1) agreement between two or more people to commit a criminal act, and is completed by (2) an overt act in furtherance of the plan. A conspirator is not necessarily an accomplice, as he may not have acted, just agreed to act. He may still be liable under the Pinkerton.

Misprison felony - anyone having knowledge of felony but fails to tell authorities creates an affirmative act - falling out of favor w/courts - 30 states no longer have

“Natural Probable Consequence”- guilt determined through probability that all circumstances may/likely to lead to the produced results. Ex: armed robbery and someone is shot - no surprise because of the risk involved

- Leads to the conviction of a person for a crime that they had no intention to commit - but legislators have no intention to reverse because although legal commentators find this unfair, reality is that the persons it’s being unfair to are usually felons.

- effectuated by statute in instances where an individual had the mens rea/intent

-Louisiana has selectively incorporates

B. Pinkerton v. U.S. (1946) Pinkerton Doctrine

The Pinkerton’s were 2 brothers living a short distance from each other. They were indicted for violations of the IRS on 10 counts. One brother was found guilty on 9 of the counts and the other on 6 counts. Petitioner appeals - contends the latter should not be held to the crimes of all nine of the counts of his brother. Court believed he should have had an overt affirmative act to withdraw from the conspiracy. Pinkerton Doctrine - If a co-conspirator agrees to commit a crime and has no other involvement he is still considered a principal. Rule exists in federal courts. However, this makes the conspirator guilty to perpetrators offense - making them liable for someone else’s offenses. Some cts think this is bad law.

C. State v. Wiley (1996) Accomplice Liability

15 yr old runaways broke into a house and one killed the owner unbeknownst to the other. After the murder they both escaped in the homeowners truck. The ct found she was not a principal, but an accessory after-the-fact. Rule: Mere presence during a crime not enough to make someone an accomplice.

Principals are all “persons concerned in commission of a crime” and requires:

(1) knowing participation in the planning or execution

(2) mere presence not enough

(3) must have requisite state of mind

D. State v. Holmes (1980) Natural and Probable Consequence

Holmes and two others participated in an armed robbery of a grocery store during which Williams shot and killed a security guard. Williams was convicted of 1st degree murder as was Homes. Holmes appeals because he did not have the specific intent to commit the crime. Ct held he could be charged either with a greater or lower degree of the crime, depending on the mental element proved at trial - bad law. Dissent was correct in stating that Holmes must have had he specific intent, and ruling contrary to legislative intent.

Chapter Four: Homicide

Article 29: Homicide is the killing of a human being, by the act procurement or culpable omission of another. Criminal homicide is of five grades:

(1) First degree murder

(2) Second degree murder

(3) Manslaughter

(4) Negligent Homicide

(5) Vehicular homicide

The killing a human being - implies causation but not all killings are homicides: war, death penalty, accidents.

Malice Aforethought

Express:

w/malice aforethought - historical reference which involved into 3 distinct mens rea, no longer required

Implied:

(1) Intent - usually specific

(2) felony murder - unintended murder committed while offender was engaged in attempting another felony

(3) depraved heart syndrome - no intent, not w/felony but extreme recklessness w/absolute disregard for human life (No DHM in La. but usually in common law)

Specific intent does not have to be premeditated in Louisiana.Assumesit is created “instantly.”

Human being - means a “living” human being

Homicide includes:

Ÿ To kill one already dying from other causes

Ÿ To accelerate the death of a patient w/a terminal disease

Ÿ To kill a man condemned to death the next day

Human being - means a “living” human being

The majority of jurisdictions now employ some variant of the test of whether an electroencephalogram shows “brain death” or not as the key determinant.

The beginning of life was defined as when a fetus was “born alive” at common law. This required a total exhalation from the mother’s body and clear signs of independent vitality. La has adopted the born alive doctrine.

Feticide statutes: defines a “person” as a human being from the moment of fertilization

First Degree Murder

Article 30: First Degree Murder is the killing of a human being:

(1) When the offender has specific intent to kill or inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, second degree kidnapping, aggravated escape, aggravated arson, aggravated rape, forcible rape, aggravated burglary, armed robbery, drive-by shooting, first degree robbery or simple robbery.

(2) When the offender has a specific intent to kill or inflict great bodily harm upon a fireman or inflict great bodily harm upon a fireman or peace officer, or civilian employee of the Louisiana State Police Crime Laboratory, or any other forensic laboratory, engaged in the performance of his lawful duties or when the specific intent to kill or inflict great bodily harm is directly related to the victims status as a fireman, peace officer, or civilian employee.

(3) When the offender has the specific intent to kill or inflict great bodily harm upon more than one person or,

(4) When the offender has the specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing.

(5) When the offender has the specific intent to kill or inflict great bodily harm upon a victim under the age of twelve or 65 years of age or older,

(6) When the offender has the specific intent to kill or inflict great bodily harm while engaged in the distribution, exchange, sale or purchase, or any attempt thereof, a controlled dangerous substance…

(7) When the offender has the specific intent to kill and is engaged in the activities prohibited by …

Punishable by death or life imprisonment

Ÿ Oliver Wendell Holmes - “Law is what I predict courts will do with my client.” (Pragmatic view)

Ÿ Most common distinction between 1st and 2nd degree murder is premeditation - difficult distinction because all murder is technically premeditated. 5 seconds v. 5 hours

Ÿ “great bodily harm” - generally accepted as a life threatening injury

Ÿ Res Gestae - Latin, “the thing done” broad incident

Second Degree Murder

Article 30.1 Second Degree Murder is the killing of a human being:

(1) When the offender has the specific intent to kill or inflict great bodily harm or

(2) (a) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, drive-by shooting, armed robbery, first degree robbery or simple robbery, even though he has no intent to kill or inflict great bodily harm.

(b) When the offender is engaged in the perpetration of cruelty to juveniles, even though he has no intent to kill or inflict great bodily harm.

(3) When the offender unlawfully distributes or dispenses a controlled dangerous substance listed…which is the direct cause of death of the recipient who ingested or consumed the controlled dangerous substance.

(4) When the offender unlawfully distributes or dispenses a controlled substance to another who subsequently distributes or dispenses such controlled dangerous substance, which is the direct cause of death of the person who ingested or consumed the controlled dangerous substance.

Punishable by life imprisonment.

a.k.a. Felony-Murder - “Unlawful Act” Manslaughter

Ÿ Felony murder does not require intent to kill -can be great bodily harm

Ÿ Starts - when perpetrator begins criminal act

Ends - Res Judicata - immediate flight - still considered to be “engaged in” the act

Ÿ “attempt” - active desire + tender or begins act

Ÿ If no specific intent must be the natural probable consequence of crime

Ÿ You become the insurer of other people’s lives during the commission of a felony. Problem is courts don’t know how far to take “insurer.” Was it probable? Did co-felon know?

Manslaughter

Manslaughter - heat of passion reasonably created (sometimes by the victim) is a homicide, which would be murder but heat of passion, reasonable person would be emotional

(1) voluntary - heat of passion

(2) involuntary - negligent, reckless homicide

Some states have created felony manslaughter

Natural Probable Consequence - criticized because accomplice will be charged w/any crimes he commits in addition to any crimes committed by a co-felon, absent his intent

- In Louisiana must have the mens rea, but general intent would suffice so it runs parallel to natural probable consequences test

Voluntary Withdraw - co-conspirator or accessory will not be liable for principals act

- what is withdraw? Majority says it must be communicated to principal that you are withdrawing

- some states must notify principal/co-conspirator and tell the police

Suicide is not criminal is Louisiana, but aiding a suicide is a crime.

Article 31: Manslaughter is:

(1) A homicide which would be murder under Article 30 (1st degree) or 30.1 (second degree), but the offense is committed in sudden heat of passion or heat or blood immediately caused by the provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that the average persons blood would have cooled, at the time the offense was committed, or

(2) A homicide committed without any intent to cause death or great bodily harm.

(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or any intentional misdemeanor directly effecting the person or;

(b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Article 30 or 301.1.

Punishable by imprisonment not more than 40 years However if the victim was killed as the result of a battery or is under the age of 10, the offender shall be imprisoned at hard labor for not less than 10 years and not more than 40.

Ÿ Provocation does not have to come from the victim

Ÿ Petterson Rule - ( must prove mitigating factors of sudden passion or heat of blood to reduce homicide to manslaughter; manslaughter is a compromised conviction because juries can reduce to manslaughter when they are undecided - will allow them to reach a verdict

Ÿ Byrd Remedy (most states have) - procedure whereby if convicted but a rational jury finds not murder, but manslaughter - the judge, rather than remanding a case may enter a judgment to reduce the charge (saves money and time of courts)

Ÿ 2 (a) “directly effecting the person” - doesn’t a crime always directly effect a person? The test in Louisiana is: Did the misdemeanor directly effect this person?

Simple battery - clearly qualifies

Theft - does not

Simple assault - qualifies, but harder call (some controversy in courts)

Generally two types of manslaughter:

(1) Hot blooded - not elements gov’t. has to prove, ( has the burden to est. provocation, reasonableness - not beyond reasonable doubt but probability, must be sufficient provocation

Ÿ What is sufficient provocation? Mere words? Simple battery?

Courts determine by looking at objective (reasonable man under circumstances) and subjective

Ÿ Provocation -must be immediate - test is whether he was enraged

Ÿ Reeves Rule: mere words can never be sufficient provocation to reduce murder to manslaughter

Ÿ In Louisiana hot blooded murder = voluntary manslaughter (don’t have vol/invol)

(2) Involuntary - not in Louisiana, similarly engaged in felony (not listed under 2nd degree) and accidentally kills someone; or involved in intentional misdemeanor directly effecting the person and accidentally kills them

Constructive test - not responsible for a non-co-felon not acting in concert; ex: proprietor kills a felon, the felon’s partner can not be charged w/2nd degree murder

Act or constructive act - one cannot be held responsible for homicide attending a felony unless a fatal act was actually or constructively his own and it cannot be constructively his unless done by someone acting in concert with him or in furtherance or a common purpose. Louisiana follows similarly through statute - reaches same conclusion

Proximate cause - holds a felon for all deaths of which the felony was a proximate cause. Robber can be responsible for death of a victim even if he was shot by another victim

Shield cases - arise when the defendants force the deceased into a position where there is great danger of his death at the hands of one resisting the felony. Example: bank robbers forced teller to accompany them as a shield during a getaway and she was killed by a Marshall. The defendants were prosecuted for the murder.

Defenses Articles 13-29

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