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CRIMINAL LAW

PART I: HOMICIDE (STRUCTURE OF CRIMINAL LAW)

Problem of definition

- Homicide = killing of a human being

o Elements: human being, dead, death caused by D’s criminal act

- What is a human being (e.g., does a fetus count)? No general rule, have to look to jurisdiction

o Old common law: complete separation = born completely, cord cut, breathing on own

o Chavez rule: Viable child in process of being born that would normally live “in the natural course of events” if it is given normal and reasonable care is human within the meaning of homicide statutes

▪ People v. Chavez (Ca, 1947): woman had baby in bathroom and left it on the floor to die. She said that she believed it to be stillborn. Conviction: manslaughter

• Court found ample evidence of viability and criminal act (failing to use any care for baby)

• Rationale: not much change in fetus between moment right before vs. right after delivery

• Criminal agency: the failure to use due care in the treatment of another, where the duty to furnish such care exists, is sufficient to constitute that form of manslaughter which results from an act of omission

• Court relies on what’s “naturally” required of a mother to explain Chavez’s duty – this reliance may indicate court is unsure of what its doing

• Chavez took the stand even though govt has burden of proving beyond a reasonable doubt bc CA had rule at time where prosecutor or judge could comment on D not testifying and that can be particularly damaging

o A fetus (even if viable), before the process of birth has begun, can’t be victim of a homicide

▪ Keeler v. Superior Court (Ca, 1970): ex-husband kicks pregnant wife in stomach and kills fetus. Acquitted.

• Majority of courts have agreed with this rule

• Statutes can change this and include “fetus” (California does)

o Fetuses which are victim of injury, then born alive, then die as a result of fetal injuries can be considered as victims of murder

▪ State v. Anderson (NJ, 1980): D shot woman, delivered twins via C-section bc of injury, twins died after viable birth

o The nonfeasance of a mother in the throes of childbirth is not sufficient criminality to sustain a homicide conviction stemming from the death of her child

▪ Singleton v. State (Al, 1948): woman had baby, which died in unattended childbirth. D was young. Cause of death was failing to tie umbilical cord. Not guilty.

• Rationale: child was alive (Chavez rule), but there was no criminal cause of death. Can’t blame an unattended woman in labor for not fulfilling parent-child duty. Patronizing: uneducated, ignorant, black woman.

• Singleton v. Chavez

o Singleton: not sufficient evidence that baby was alive when born

o View of childbirth (Chavez – ordinary event; Singleton – traumatic to mother)

o Racism, patronizing attitude toward black women in Alabam

o MPC: human being = a person who has been born and is alive (stricter than Chavez)

▪ Sidenote on Model Penal Code

• Most of criminal law was done through common law until 1940, then a strong movement to make statutory

• Created MPC to provide model to states as they created statutes

• As close as we can come to stating what crim law is. No state followed 100%, but reflects common features of states

• Most things the same except law of rape

o Ordinary attitudes toward motherhood and birth may not always apply. For example, a young girl may perceive fetus as a foreign object. Disconnect between society’s POV and D’s reality

▪ Pitchford, acquitted of all charges because of temporary insanity

- Year and a day rule: precludes prosecution for homicide if death occurred more than a year and a day after injury that caused

o Rationale: can’t make causal link between injury and death when its that far

o New advances in science have caused most jurisdictions to abandon or modify this rule

▪ New rule: liability based on causation, irrespective of time passed

- Statute of limitations: a crime must be prosecuted, if at all, within a certain period after its commission. More serious the crime, longer it is. Typically, no statute of limitations applicable to 1st degree murder

Problem of sorting

Homicide Graph

|Intentional |Unintentional |

| | |

|police kill felon, | |

|self-defense |accident, |

| |normal negligence |

|Lawful | |

|Unlawful | |

|v msltr |invol msltr; |

| |fail duty |

|Bad quadrant |gross negligence |

|mrdr |msd-msltr |

- The key difference between murder and voluntary manslaughter in the first quadrant is malice aforethought

o Misleading term, Weinreb prefers: “intention to kill”

o Way of referring collectively to states of mind that, accompanied by a homicide, characterize the homicide as murder

o Historical development

▪ Names used for categories rooted in CL and are still widely used

• Statutory codifications in jurisdictions may use different terms for the categories

• MPC: only 2 general rubrics: murder and manslaughter

o Manslaughter = voluntary manslaughter + reckless homicide (involuntary manslaughter)

▪ Chance-medley

• Historical antecedent of voluntary manslaughter used to refer to killings that occurred in a sudden fight. The fight, not the provocation, was what showed absence of the malice aforethought that would have made the killing a murder

• Looked at the social context/external situation, while now we look at internal state of mind of D

• Absorbed into killing in self-defense/killing provoked by an assault

- Voluntary manslaughter: an unintentional, unlawful killing that would otherwise be murder except that the Rule of Provocation applies

- Rule of Provocation:

o Sole question: did D have adequate provocation for his act?

▪ Recognized provocations include, but not limited to (e.g., whether vol. mans. instruction/question goes to jury):

• Discovering spouse in act of committing adultery (not in MD)

• Mutual combat

• Assault and battery (states differ over minor assaults)

• Injury to relative or third party (some jurisdictions)

• Resistance to illegal arrest (maybe)

▪ Mere words are not adequate provocation to justify manslaughter unless they create fear of bodily harm

• Girouard v. State (Md, 1991): married army officers get in a fight. Wife verbally and physically abuses husband. Husband gets knife from kitchen and stabs wife. Conviction: second-degree murder (wasn’t reduced to manslaughter). Rationale: mere words; physical assault didn’t rise to level of bodily fear because wife so much smaller than husband

• Some jurisdictions allow “informative words”

▪ If D does something that leads to provocation, still fits. However, if it can be proven that D’s actions were deliberate, juries may not believe that D was actually in a rage

▪ Hypos:

• Hits neighbor on head with 2x4 ( goes to jury

• Slight slap to close relative ( goes to jury

• Calls neighbor a cheesehead ( does not go to jury

• Kicks neighbor’s dog ( does not go to jury

• Racial slur ( does not go to jury (mere words)

o Killing must have been in the heat of passion

▪ Rationale: idea that passion provoked D’s actions. Not product of free will. Less culpable, subject to less deterrence

o Sudden heat of passion: killing followed provocation before reasonable opportunity for passion to cool

▪ Tough cases when adequate provocation, cooling time, then V does something to ignite D’s passion again (e.g., wife commits adultery, then 2 days later, says something to remind husband) (some jurisdictions say this is adequate)

o Causal connection between provocation, passion, and fatal act

- Reasonable man standard

o For provocation to be adequate, it must be calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than from reason. Frailities of the mind are no excuse.

▪ Girouard v. State

o Applies when looking at what enrages the person

o CL seems to take into account things like age and sex, but not things like homophobia

o Reasonable man standard doesn’t include considerations of special features or a particular physical defect

▪ Bedder (1954): D is impotent, and kills a prostitute who taunts his impotence.

• Rationale: if always consider abnormal characteristics, then test ceases to have value, just becomes subjective. People should know their individual problems and should avoid situations that provoke

o Reasonable man standard doesn’t take sexual preference into account

▪ Washington (1976): D kills homosexual lover after a quarrel. Court rejects considering provocation from POV of an average gay man.

• Note: not related to crime. Seems like D’s lawyer is trying to get jury to acknowledge that it doesn’t know how D would feel in that circumstance, and therefore not competent to make big decision and give harshest punishment

o MPC: the reasonableness of such explanation shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be

▪ Does not include distinctive moral condition

▪ Purposefully ambiguous: wants to leave to case by case to decide what to include

▪ Weinreb’s view: MPC failed on this really contentious issue

▪ Probably would have covered Bedder, but not Girouard

o Trend: trend towards looking at actor’s POV (after MPC released), but recently move towards more rigid standards

- Provocation is not an element of manslaughter that must be proved, but a defense to 2nd degree murder. Once D introduces provocation as a defense, then the burden is on the state to prove its absence

o Alexander (1972): 5 marines and a woman in shop. Marine called D a racial slur, D’s drew guns and start shooting. Marines killed.

▪ Mere words not enough to constitute provocation, no matter how offensive

▪ Note: in general, the law ignores social context (MLK had just been assassinated).

• Provocation – is it sudden and extreme then?

• Retribution – did V’s do something specifically to provoke/bring on themselves?

• Deterrence – want to send strong signal that this is not ok, people can’t take justice into their own hands

- Burden of proof

o Winship rule: prosecutor burden of proof for all elements of a crime (beyond a reasonable doubt standard)

o Provocation rule is a necessary feature of homicide law, so prosecution has burden of proof (overruled by Patterson)

▪ Mullaney v. Wilbur (1975, SC): D killed V when provoked by homosexual advances. Maine statute makes unlawful, intentional killing murder unless D proves provocation by preponderance of evidence.

• Rationale: can’t place out of realm of Winship rule by defining elements of crime as only affirmative defense. This violates due process. Also, this essentially treats murder and vol mans. as the same. Can’t do that. Both practically (punishments) and historically, these have been viewed differently

o Rule today: states can choose whether or not adequate provocation is an affirmative defense, and therefore whether or not burden of proof lies with prosecution or defense

▪ Patterson v. NY (1977, SC): NY statute distinguishes 2nd degree murder and voluntary manslaughter with the affirmative defense of acting in the heat of passion on sudden provocation. Places burden of proof of provocation on D

• Rationale of differing view with Mullaney: Mullaney statute has “malice” (i.e., lack of provocation) as part of the definition of the murder, whereas Patterson statute leaves “malice” out

- Transferred Intent: When a D’s conduct would make him guilty of some form of intentional criminal homicide (murder or vol mans) except for the fact that the person killed is someone other than the D intended, the D is guilty of the crime that he would’ve committed had he killed the person intended

o D can be charged with more than one crime. The intent can be used twice

▪ Attempted murder of B + Actual murder of C

▪ People v. Scott

o Provocation defense can be transferred as well

o Policy justification

▪ Shouldn’t get lesser charge just for not being good at murder

▪ Not purely instrumental

▪ Weinreb: thinks logic behind using same intention twice is a mistake

▪ Uses moral justification to wipe out the standard lines of rationality that crim law tries to draw

- Degrees of murder: 1st and 2nd degree

o History: Pennsylvania formula (1794)

▪ Did away with death penalty for all crimes except murder in the first degree.

▪ 1st degree murder: poison, lying in wait, or by any other kind of willful, deliberate, or premeditated killing

o Second degree murder (“hot blood”): intentional killing done on an impulse or in the sudden heat of passion

▪ Assumed baseline for murder

▪ If mitigating facts (i.e., adequate provocation) ( vol mans

▪ If aggravating facts (i.e., planning, premeditation) ( 1st degree murder

▪ Difference between MPC vol mans and 2nd degree murder

• Vol mans requires “extreme mental state” while 2nd degree doesn’t

• Vol mans requires “reasonable excuse” while 2nd degree doesn’t

• The more we expand vol mans and 1st degree murder, the more tendency to squeeze 2nd degree murder out

o First degree murder (“cold blood”): intentional killing committed after premeditation and deliberation

▪ Prosecution has the burden of proof on premeditation. Must prove intent

• Caruso (1927): doctor comes too late to check on a house patient. Boy dies. When father informs doctor, doctor looks to be laughing. Father blames doctor and goes in a rage. Strangles, then kills with knife from closet. Held that not 1st degree

o Although D had time to deliberate prior to doctor’s arrival, prosecution didn’t prove intent existed before the immediate provocation of the smile

o Social context: patronizing, Italian immigrant not sophisticated enough to come up

▪ No minimum rule for time of premeditation. Even a few seconds or minutes may be enough to show premeditation

• People v. Bender: there doesn’t need to be an appreciable space of time between intention to kill and act of killing

• Hemphill v. US: rejected passage of time as a sufficient indication of D’s state of mind

▪ Premeditate = to think about beforehand

▪ Deliberate = measure and evaluate the major facets of a choice or problem

▪ 3 basic categories of evidence that have supported finding of premeditation (People v. Anderson)

• “Planning activity”

• Prior relationship/conduct with victim from which to infer motive

• Nature of the killing from which to infer the motive

o Degree formula is statutory, so look at statutes of particular state

o Trend: degree formula has lost ground and been replaced with: voluntary manslaughter; intentional/unlawful killing + aggravating/mitigating factors (intent, brutality of the crime, deterrence)

▪ MPC: no degrees of murder, but special mitigating/aggravating factors include “substantial planning and premeditation”

• Caruso result would prob be manslaughter (“extreme emotional disturbance”)

o Defense of diminished capacity and diminished responsibility

▪ This defense is no longer generally accepted by the courts (its either insanity defense or nothing)

• Law has resisted gradation of responsibility / sliding scales of criminal responsibility

▪ Diminished capacity is considered and helped mitigate the judgment. A severe mental illness may not be enough to establish a defense of legal insanity, but may make it impossible to find the deliberate, premeditated act of first degree murder

• Wolff (1964): very disturbed teen killed mom to get rid of her so he could rape girls. D could appreciate the wrongfulness of his criminal acts. Mitigated to second degree, bc his mental state indicated a lesser capability of premeditation

▪ No intermediate state of partial criminal responsibility between insanity and ordinary responsibility. No defense of diminished capacity

• Mazza (1974): D has a low IQ. Kills man, stuffs body in closet, and uses credit cards. Argument not that he didn’t plan, but that his planning capacity was so much less than a normal person and that should be taken into account (i.e., look at the quality of the deliberation).

▪ Intoxication not a defense to 1st degree murder charge, but may show inability to deliberate/premeditate

▪ Law doesn’t care about the motive, it only cares that there is an intent to kill

• Zygmaniak: D shot and killed his paralyzed brother who begged him to do it. Here, jury said temporary insanity so not guilty. Perhaps using as a way to take motive into account.

o Does the law place value on human life such that it transcends consideration of moral/motive?

o For capital punishment, impaired capacity is one of a number of mitigating facts that can be included (also, duress, minor participation, no prior criminal records, equally culpable D’s not punished by death, severe mental or emotional disturbance, victim’s consent)

▪ Aggravating factors (MPC): unusual cruelty, drug trafficking involvement, murder for hire

- 5 categories of intentional killings that qualify as murder

o Intent to kill

o Intent grievously to injure

o Extreme recklessness

o Commission of Felony

o Resistance to Lawful Arrest (in theory, but not always used anymore in practice)

- Considerations

o Having all 5 categories ( murder, sense that focused more on consequence than on mental state at the time

o Have to look at state statutes to see how they regard

▪ Generally, intention to kill (with planning) ( 1st degree

▪ Others ( 2nd degree

- Intent grievously to injure

o Put weight on “grievously” – serious injury, otherwise will lead to distortion between intent to kill and intent to injure

o Use of a deadly weapon (or any weapon in a deadly manner) is a fact from which malice may be inferred

▪ Several courts follow this

▪ AIDS + intentional, unprotected sex: some courts have upheld

▪ Blows of the fist: some courts have sustained conviction of murder, depending on circumstances

▪ Poplis: beat child seriously ( death

o MPC got rid of this category and assimilated with extreme recklessness. Recent statutory revisions have followed this lead

o How can this category be explained?

▪ Jury is relieved of burden of deciding a difficult Q of fact in cases where intention to kill not evidence from nature of act itself (since intention to kill = intention to injure)

▪ Death resulted from D’s act

▪ D’s intention was at best very bad

▪ If the issue is at all in doubt from nature of the act, D will assert that he had the lesser intention and there will seldom be evidence to refute that assertion directly

o Hard cases – an injury (broken arm), then infection that leads to death. No intention to kill

- Extreme recklessness

o Acting in the face of an unusually high risk that conduct will cause death/serious bodily injury

o Risk created is wildly disproportionate than the purpose you’re trying to accomplish / use of manifestly dangerous instrumentality in a dangerous way

▪ Whitmore: boy shoots randomly into train for fun and leads to death

▪ Blow up plane because want to photograph aerial disaster

▪ Driving car at high speed directly at people to avoid the police

o Child abuse/excessive force against a child

▪ Starving infant to death

▪ Poplis: beat child to death

• Grievously injure + extreme recklessness

o Not vol mans (“recklessly causes the death to another”) bc this is something more. A depraved indifference to human life

o Depraved indifference not a state of mind, but a definition of the factual setting in which the risk-creating conduct occurred (i.e., an objective standard)

▪ Register: upholds conviction of D who took loaded pistol to a bar and shot people while drunk

o Usually drunk driving not enough, but gets closer if really extreme (i.e., get really drunk and then declare going to drive all over town)

o MPC: committed recklessly; extreme indifference to the value of human life

▪ MPC comment: instructions should be given to trier of fact that recklessness that can fairly be assimilated to purpose/knowledge should be treated as murder and that less extreme recklessness should be punished as manslaughter

o In the absence of evidence to the contrary, a man is presumed to intend the natural and probable consequences of his acts

o If it is just regular recklessness, and not extreme ( invol mans

▪ Vehicular homicide: careless, not doing something beyond respect for human life

- Resistance to lawful arrest

o Not really a category anymore

o Will not allow provocation to mitigate murder to MS when cop is killed in course of a lawful arrest

o Lawful arrest attempt may involve physical force, but it doesn’t count as adequate provocation

- Felony Murder

o Difficult area of the law

o When a D commits a homicide while engaged in the commission of a felony, but not a misdemeanor, the felony supplies the required intent to substantiate a murder charge. There need be no proof of negligence and no culpability

▪ State v. Best: gas station attendant is shot “accidentally” in the struggle for a gun during a hold up. D claims no intention to kill. D convicted of first degree murder via felony murder

o Felony murder requires that the death of a person resulted in furtherance (in the course of) a felony

▪ Heinlein: Heinlein and Walker brothers drinking and begin to rape V. V slaps H, and he stabs her to death. Walkers holding V down. H gets murder. Ws get attempted rape, but NOT murder under felony murder rule

• Rationale: killing was outside the scope of the felony of rape, and therefore H’s action was not in furtherance of the felony. On appeal, court found that jury should have been allowed to decide if killing occurred in furtherance of rape

o Still have to prove elements of homicide: V a human, D killed him, V dead

o There is no requirement that the murder be intentional, foreseeable, or that the death occur while D is engaged in the felony. Only requirement is that the acts are all “part of one continuous transaction.” No foreseeability requirement as long as homicide a direct causal result of the felony ( felony murder

▪ People v. Stamp (1969): man has a heart attack (heart disease + emotional impact of robbery) 15 min after an armed robbery and dies. Ds told people to stay down so no one got hurt. Ds convicted of FM.

• D held strictly liable for anyone who dies in the course of the felony

• Doesn’t matter if V might have died later from heart attack. But for the robbery, the V wouldn’t have had heart attack and died. Robber takes his victims as he finds them

• Courts often uphold a murder conviction in this type of case

o D, along with others, commits armed robbery. Policeman shot and killed while trying to stop their escape. Ct said it was irrelevant which of the felons shot the fatal bullet

o Affirmative defense of self-defense may be properly raised only as it pertains to the underlying felony, and not to the resulting death

o No charge of “attempted felony murder” bc would require D to intend what is by definition an unintentional result

▪ Rationale:

• Society wants people to be accountable for their actions if they choose to break the rules

• Eliminates evidentiary problem of finding intent during a felony

o Felony murder can be 1st or 2nd degree

▪ Depends on state statute, but majority say 2nd degree or only put most dangerous felonies as 1st degree

o The line extends far for what may constitute felony murder (all hypos below are for a gas station robbery):

▪ D intends to kill V, and does

▪ D doesn’t intend to kill V, but does

▪ Stamp case (D holds up V, V dies of a heart attack)

▪ D holds up V, V trying to defend, kills V2

▪ D holds up V. Police accidentally kills bystander (lawful, acting with due care)

▪ D1 intends to kill V. D2 is also liable

• Aid and abet: if you help someone commit a crime, you are also liable for their crimes

▪ D1 accidentally kills V. D1 also liable

▪ D1 holding up V, V accidentally shoots D2. D1 is liable for D2’s death

▪ D1 and D2 holding up V, police kills D1. D2 is liable

o Felony murder in disguise: conduct that manifests indifference to the value of human life that proximately causes the death of either a felon or an innocent

▪ Taylor v. Superior Court of Alameda: 2 men attempted liquor store robbery, resistance by shop-owner and 1 felon dies. Other felon held liable bc of extreme recklessness (felony murder through the back door. Different rationale, same result)

o Bottom line: felony murder is a muddy area

▪ When causal element plainly satisfied (i.e., D shoots V), it applies. Intent doesn’t matter

▪ Extends easily to case of heart attack when no one else around (language: felony is the cause of death)

▪ Accomplice liability ( aid and abetting rules ( felony murder

▪ Generally applies when no other locus of responsibility (e.g., police, another person)

▪ Beyond that, how far doctrine goes depends on the state

▪ Some states say it has to be a dangerous felony or depends on particular facts (e.g, loaded gun)

o Policy justifications

▪ Society wants people to be accountable for their actions if they choose to break the rules. D should be aware of creating danger to human life

• Bringing loaded gun to robbery implies intent to grievously injure

▪ Deprive felon of excuse that he “didn’t intend to kill”

▪ Lowers the evidentiary burden on the state bc don’t have to prove intent

▪ Historically, grew during a phase when aggressive punishment of all crimes was very common, and also when felony used to be a small set of crimes

▪ Some resemblance to reckless endangerment

▪ May be a way of assigning blame so we don’t have to deal with the implications of random catastrophes

o Issues

▪ Foreseeability v. the idea that if D hadn’t done what he did, then V would be alive

▪ Focusing on the criminal instead of the V

▪ Why don’t we just take the danger created by the D into account with the underlying felony?

▪ Functions as tax harm rather than tax risk doctrine

▪ Smith: instrumental view against felony murder – retribution is served by sentence for felony but deterrence can be modified by increasing sentence

▪ Is culpability being thrown out the window?

• Tort is about compensating the V. Someone has to bear the burden of loss or injury. In crim law, no one HAS to bear the burden.

o Limitations of felony murder

▪ Felony must be of a kind that involves violence or danger to life

▪ Time: felony thought to continue until felons come to a place of rest (e.g., stop running/driving)

• Used to be more limited, but has recently been expanded to place of rest

▪ Independence requirement/merger doctrine:

• FM rule typically inapplicable if the underlying felony is not independent of the homicide and of the assault merged therein; homicidal aspect must be independent of the crime charged

• Rejected in a few states

▪ MPC: abandoned FM rule but finds that certain enumerated felonies constitute extreme indifference or recklessness

Justification and excuse

- Quadrant: intentional and lawful killing

- Self-defense

o Affirmative defense

▪ In most states, if D presents the issue of self-defense, the prosecution has burden of proving the absence of self-defense beyond a reasonable doubt

o Definition: intentional killing that would otherwise be murder is not murder and is not a crime at all if the D reasonably fears that his life is in danger and uses no more force than is necessary

o No self-defense excuse until person has availed self of all proper means to avoid physical combat

▪ Commonwealth v. Kendrick (1966): Kendrick having an affair with Mrs. G and fathered child. K went to tell Mr G and took a knife just in case. Mr. G came out of house with fireplace poker, K stabbed multiple times. K had an open route of escape, so the force he used was excessive. Holding: jury should have been allowed to consider manslaughter

o Factors

▪ Deadly force: force that is likely to kill, real likelihood of killing

• If D falls V, and V hits head. That is just an accident. Non-deadly force is always ok

▪ Must be in response to an immediate threat

▪ Reasonable basis for taking self defensive action

▪ Allows to act on appearances as long as appearance is reasonably something that looks deadly/requiring self-defense

▪ Belief has to be something we perceive as reasonable

• Does not include morbid fear of trivial harm

• Does not include uncommon ignorance

o Sometimes may allow jury to consider beliefs of isolated, tight-knit community

• Must be acting in self-defense at the time

▪ Past acts and threats of V are relevant to D’s claim of self-defense to show the circumstances/extent of his apparent danger

▪ If D starts the fight, can’t use excuse of self defense unless made a good faith effort to disengage

o Imperfect self-defense: acting out of self-defense, but

▪ The force is excessive for one reason or another, OR

▪ Fear of danger was unreasonable

▪ Form of voluntary manslaughter

o Case of the apparent aggressor

▪ V appears to be endangering, but isn’t (e.g., foam sledgehammer) still allows self-defense

▪ Have to have some basis for calling V an aggressor

▪ Case of apparent aggressor

• Self-defense is allowed for B if A reasonably thinks B is going to kill, A goes to use self-defense, B sees this and shoots A first

• A sees B about to shoot him because B thinks A is a deer. Can A shoot B? Depends

o Looking to see who’s the aggressor. Very small differences might change the view (e.g., A is wearing a deer costume)

• Bottomline: if you’re classified as an aggressor, everything else follows. However, defining an aggressor in those situations attach to very small facts that don’t carry that much moral weight at the time.

o Duty to retreat: no excuse of self-defense if use of deadly force could have been avoided by retreat. But, can always use non-deadly force without retreating

▪ If there is ample time to retreat and you fail to do so, then self-defense is not an available defense

• Shaffer (1975): D’s fiancée threatens her. She waits several minutes in her basement, then shoots him. Convicted of murder

▪ If there is no perfectly apparent and safe avenue to retreat, no duty to retreat

▪ Exception (MPC): if you’re in your home or place of work

• General tendency to expand exception to include any place where person attacked is lawfully present

• As a result, duty to retreat doesn’t have much force anymore

▪ Many jurisdictions reject duty to retreat rule

▪ If you’re in a retreat jurisdiction, could have retreated and don’t, then kills, crime is probably vol mans (a case of excessive force)

▪ Duty of initial aggressor to retreat/withdraw: if you’re the initial aggressor, you have absolute duty to retreat if you can and if they respond with deadly force. Must take steps to let the other know you want to withdraw (but not necessary that he actually understand). An aggressor who has withdrawn from the conflict may assert he defense of self-defense

- Battered Women’s Syndrome

o A psychological description of a woman who has been abused over an extended period of time by the dominant male figure in her life. Generally admitted to establish a pattern of response to show the perception of immediate danger ( whether use of deadly force in self-defense was reasonable. Evidence of BWS is relevant to determing objective reasonableness of the need to defend, based on a reasonable person in a similar situation and with similar knowledge

▪ Humphrey (1996): history of abusive relationship. Threatened to kill her and shot at her previous day. Next day started hitting her again. She got gun and killed him

• Not straightforward self-defense bc it wasn’t clear she was in immediate danger

• Testimony on BWS was allowed in consideration of reasonableness of her belief. Can help show that D’s perception of there being an imminent threat was reasonable

• Convicted of vol mans

• Court specifically said wouldn’t consider for reasonable gang members

o MPC: deliberately ambiguous on this issue. “Look at actor’s situation”

o Efforts to extend to battered children haven’t succeeded

o BWS generally results in conviction for vol mans (but sometimes invol mans)

o Objections of BWS:

▪ Testimony serves mainly to damn the victim rather than give evidence of D’s situation

▪ Experts are committed to syndrome, it was there expertise

▪ Open ended excuses for women to kill husbands or boyfriends

▪ These objections are not as prevalent or accepted now

o Possible surrogate to failed response of a social problem?

o General pattern: long history of violence that’s generally not life threatening, then women uses deadly force. Often facts don’t show immediate need. Anger and rage at past abuse is not self defense

- Defense of others

o Questions: what range of people can you defend with deadly force? What happens if you’re mistaken?

o Old rule: limited to a circle of family and friends (some courts still follow this)

o Majority rule (MPC): objective test

▪ Intervening party bound only by his own intent. Generally can act on appearances (reasonable mistake doctrine)

▪ Benefits: encourages altruism

▪ Problems: don’t want innocent people getting hurt if you’re mistaken

o Minority rule: act at your peril/other person’s shoes rule

▪ No defense of mistake if acting the aggressor

▪ Benefit: makes more careful before jumping into something with deadly force

▪ Problem: may have chilling effect on assisting others

o Some courts: limited act at your peril (e.g., can’t attack police officer)

o If intervene wrongly, under either test, then will probably be vol mans

- Defense of property

o Can use ordinary, non-deadly force to prevent property from being taken. Once the “taking” is over, you can’t use force to “retake” your property, but instead must go to the police. Can’t use deadly force in defense of property, but can get away with using deadly force to prevent dangerous felony or generally if you’re defending your home.

o Defense of habitation

▪ Use whatever force is necessary

- Prevention of a felony

o May be able to use force, even deadly force, when crime taking place to prevent commission of a crime

▪ Now, more limited. Generally only available for deadly/violent felonies

▪ Not available for misdemeanors

• Distinction of felony v. misdemeanor depends on jurisdiction

o Felonies ( prison; misdemeanors ( short term jail

- Defense of habitation

o Rule: use whatever force is necessary to keep a person from entering house OR use whatever force is necessary to keep a person from entering house with intent to commit violent felony

▪ Crawford: older man regularly terrorized by kids stealing stuff. He shot one when tried to break in. Conviction of manslaughter reversed.

▪ Some states may require assailant intending to commit a felony

o Serves as a form of accelerated self-defense in practice

o Recently, case/statutes that emphasize home as castle. Can defend with more force than used to be allowed

- Prevention of escape

o CL rule: permitted use of deadly force to prevent felon’s escape

o In many states, rule is typically unlimited with respect to nature of the felony but is sometimes limited by a requirement that a felony actually have been committed with no defense of reasonable mistake

- Two other defenses: duress and necessity

o Both: act to save own life and force against someone other than the source of danger

o Duress: a threat to your life is presented by another person (not the one you kill), you act to save your life while performing violence on someone else

▪ Old law: well founded fear generated by a threat from a human being of an imminent serious bodily harm or death to himself (or sometimes a near relative) and not of his own doing (i.e., as part of voluntary gang initiation)

• Not a defense for homicide

• Reasonableness = objective standard

▪ New law in regards to homicide (MPC): a threat to your life or another’s is presented by another person, and not of your own doing

• Defense for homicide

• Reasonableness = subjective standard

• No restriction on imminent harm

• Threat to third party doesn’t have to be relative

o Necessity: a threat (usually from a natural source) of imminent injury to the person or property for which there are no (reasonable) alternatives except the commission of the crime. The defendant’s acts must prevent an equal or more serious harm; the defendant must not have created the conditions of his own dilemma

▪ When actor faces a choice of evils, necessity can be used as a defense to a crime if harm sought to be avoided is greater than the harm caused by the offense

▪ Can lives be cumulated? 3 or 4 lives could be saved if kill 1 who is the source (and isn’t the aggressor)?

• Theory that the value of individual life is unique – can’t take 1 to save 2

• MPC allows this possibility but leaves ambiguous

▪ Tendency to leave necessity more open as available defense than duress

▪ Trend to open up necessity to cases where the law is claimed not to be moral

▪ Example: driving w/o license when driving pregnant wife to hospital

▪ Prison escape: abuse not part of penalty when someone is sentenced to prison

• Limited defense of necessity for escape, but then still have to turn yourself back in.

▪ MPC definition: choice of evils – conduct which actor believes necessary to avoid harm/evil is justifiable if:

• Harm or evil sought to be avoided is greater than that sought to be prevented by the law defining the offense charged AND

• Neither the code nor other law defining the offense provides exceptions or defenses dealing with the specific situation AND

• Legislative purpose to exclude justification not apparent

o Duress/necessity not allowed for activities that the legislative branch of the government has expressly sanctioned, like nuclear power protests

- Random stuff

o Mens rea (“mental state”): provocation; deliberation & premeditation

o Actus rea: nature of crime, act of the D

Unintentional injury

- Involuntary manslaughter (aka negligent homicide aka manslaughter in the 2nd degree)

o Definition: accidental killing that (1) is the result of criminal negligence in the commission of a lawful act or (2) is caused during the commission of an unlawful act not amounting to a felony that would trigger felony-murder (if occurs during commission of misdemeanor ( misdemeanor-manslaughter)

o Different than extreme recklessness, which has an element of intent and that it seems inevitable that someone will get killed (e.g., driving through a crowd of people)

o Juries often unwilling to convict for vehicular manslaughter bc society seems to accept risk of dying in car accident

▪ Trend of reducing sentences – vehicular homicide statutes but with lower penalties

o No general doctrine of “negligent crime” except for homicide

▪ Usually crim law only cares about intentional acts

▪ No negligent burglary/assault

▪ Clear that invol mans requires “gross and culpable negligence”

o Gross and culpable negligence mental state = invol mans. Gross negligence is criminal when accompanied by acts of commission or omission of a “wanton and willful nature” that show a reckless or indifferent disregard for human life

▪ Bell v. Commonwealth: driving without headlights down a narrow street. Also, had arm in brace. Hit 2 women, killing one. Unlawful acts inc speeding, driving w/o lights, and on the wrong side of road are a violation of state’s motor vehicle code

• No doctrine of contributory negligence in crim law, but defense lawyer could bring in to prove D wasn’t criminally negligent

• Rationale: impossible to believe a reasonable man wouldn’t slow down and notice lights were out

• Negligence required in a criminal proceeding must be more than the lack of ordinary care and precaution. It must be something more than mere inadvertence or misadventure. It is a reckless or indifference incompatible with a proper regard for human life. It must be shown that a homicide was not improbably under all of the facts existing at the time, and that the knowledge of such facts should have had an influence on the conduct of the offender

• Hypo: If V had lived, there wouldn’t have been prosecution. Raises questions seen in felony murder of what to do with fortuities – having less to do with conduct than with bad luck. Is a difference in sentencing due to by chance death of person example of retribution rationale for punishment?

o Example of deterrence: states recently imposing harsher sentences for all DUIs, regardless if someone gets killed. Empirical evidence that led to decrease in accidents from drunk driving

• Hypo: what if doing all this to rush dying passenger to the hospital? Can you transfer risk of death to another?

o Could rebut the prima facie unlawfulness of statutory violations bc of emergency

- Misdemeanor-manslaughter

o Rule: if you commit a misdemeanor and someone dies, can be convicted of misdemeanor-manslaughter. But, the misdemeanor usually has to be connected/causal connection of the death

o Application varies by jurisdiction (some courts have limited to realm of misdemeanors that endanger life)

o No requirement of gross and culpable negligence

o There needs to be a causal connection between misdemeanor and the risk/death. Not just but-for causation

▪ Someone driving w/o license bc forgot to renew – prob doesn’t apply

▪ Person never had a license in the first place – does apply (never had driving test to make sure they knew how to drive and the rules of the road)

▪ Drunk driving – in some jurisdictions don’t need causal connection, but still needs to be more than bare but-for

▪ Simple assault and victim dies – liable for manslaughter, easy application

• Rationale: intent of misdemeanor shows causal connection

▪ Steal purse, heart attack and dies – prob liable

▪ Steal purse, victim had pills she needed to take and dies w/o them – prob not liable

o Other cases:

▪ Chapman: air force pilot bailed out of plane after setting course. Swerved into residential area and killed people. Held: not guilty of invol mans – actions were reckless but not gross and culpable so don’t amount to “wanton and reckless disregard for human life”

• Issue of weighing financial savings (delayed action trying to save plane) vs. human lives

• Weinreb thinks the prosecution (govt) didn’t want to convict so didn’t try

▪ Feinberg: storeowner sells Sterno and knows people use to drink it. Then stocked industrial strength, and 31 people died. He gave no warning of higher toxicity. There was a warning on the can. Held: liable for invol mans.

• Issue: did D have duty to warn?

• Ct. said his concern for profit outweighed his concern for results of his actions ( wanton and reckless disregard (he knew what they were using it for, and knew danger of what he was selling ( grossly negl)

• Are we depriving derelicts of their liberty to purchase/declaring them non-competent to make decisions?

- Duty to protect others/duty of care

o Criminal liability exists where physician exhibits a gross lack of competence regarding the patient’s safety, regardless of whether the act was in good faith

▪ Gian-Cursio: chiropractor treated tuberculosis patient with special diet, didn’t prescribe traditional medication, patient died. Convicted of manslaughter and sentenced to 5 years.

• Not an excuse that the victim consented

• Conforming to generally accepted practice of licensed healers is irrelevant

• Good intention to heal is insufficient excuse

▪ General rule for medical practitioners: if criminal negligence is established, then person providing medical treatment, even if not a doctor, is guilty of manslaughter

▪ Danger is judged according to common experience (e.g., even if people haven’t had direct experience, they know putting kerosene on someone is dangerous)

▪ Indifference to/lack of awareness of actual medical knowledge is not an excuse ( an activity performed w/o due caution and circumspection

o Duty to exercise due care requires some element of common sense, reasonableness + special factor

▪ Feinberg: storeowner selling Sterno, near incompetence of the victims

▪ Sweat lodge case: harder to find a special factor. Seems not that different from bungee jumping

- Failure to act

o In some situations, D will be held criminally liable for any death resulting from a neglect of a legal duty to act (which isn’t necessarily the same as a moral duty) (negl is more than in tort)

o 4 general situations where failure to act = breach of legal duty

▪ Statutory duty

▪ Status relationship

• Parent/child

• Generally no duty to help spouse (unless spouse assumes care)

▪ Contractual duty

▪ Voluntarily assumed care of another

▪ If it doesn’t fall into one of the above four relationships, its not a breach of a legal duty

• Beardsley: D and mistress drank heavily, a boy gave her morphine. D carried her in a stupor to a neighbor’s apartment and she died there. Court reversed conviction of invol mans because D had no legal duty to help the woman bc mistress doesn’t fall into one of 4 categories. D’s state of mind/intent is irrelevant

o Issue: woman had a checkered past. If she was more inexperienced, could possibly argue that D voluntarily assumed duty of care by plunging her into live of debauchery

• Kitty Genovese: 37 witnesses to her murder, no one called police. No crime.

• Strohmeyer: saw friend raping a young girl, and did nothing. No crim liability

o Basic rule

▪ Person must be protector

▪ Must know victim is in peril

▪ Negligently fails to rescue them

• Sheridan: Christian Scientist mother who refused to bring sick daughter to doctor. If she had, child prob wouldn’t have died. To D, failing to call a dr wasn’t evading her parental duty, it was meeting it. Convicted of invol mans

o MA legislature passed law to prevent jail for people practicing their religious believes

o These types of cases aren’t often prosecuted and when they are, the parent typically doesn’t do the time

o Faith Assembly case had diff outcome – 10 years imprisonment (status of the religion/parents may have been determinant)

o Trying to balance value of child’s life, protecting religious freedom, and the parental relationship

▪ Causation determined by a jury

o If have duty and intentionally fail to act ( murder (omission takes the place of the act)

o For cases that don’t fit within these categories of duty:

▪ May ask whether failure to act was gross negligence?

• Judges get creative – if create someone’s peril, may be judged to have a duty to act

• Accidentally cut someone with garden sheers and walk away ( gross negligence

o Arg that single transaction

o Arg that assumed duty – put them in the position and the only one that can give help?

▪ If self-defense and leave the person bleeding to die ( excessive force

Causation

- Core question: did D’s act cause the death of the victim?

o We distinguish the cause of an event from the conditions of an event according to our interests, which usually means that we single out as the “cause” some element of the situation that we can control – implication of unexpressed normative judgments.

o Weinreb: not any different than how we think about causation in ordinary life (we pick out the unusual – the person who lights the match, not the oxygen in the air)

o Depends on our perception of how far removed the act is from the death

- Jury gets general instruction as to causation

- Usually an element of inovl mans, but sometimes used in vol mans (easy to establish)

- Take your victim as you find him, whether a temporary or permanent condition. There is no defense that the victim is less healthy

o Frazier: D punches V, a hemophiliac. V dies. Convicted of invol mans

▪ Really brings to a focus the problem of fortuities that didn’t intend nor results didn’t mean to bring out. Criminal law doesn’t care about fortuities

o Brackett: D raped and beat elderly woman. She became depressed and refused to eat ( died a month later. Conviction affirmed

o Woman raped and takes poison to kill herself. Conviction of 2nd degree murder affirmed because taking poison was a natural and probable consequence of the D’s criminal act.

o But, if the condition is too external and too removed, then the cause is the condition, not the D

▪ D stabs V, V goes to hospital and contracts ind disease from stab wounds. Ct holds rare, but foreseeable. So, D liable

▪ Often, if you can say “died from disease,” then disease is the cause of the death

- Victim’s neglect is not a defense (unless it is so extreme that it is an independent, superseding act)

o Hamilton: D and V in fight. D kicked V in face. In hospital, V pulled out breathing tubes and died. D convicted of vol mans. (intent to grievously injure)

▪ Hypos: if V had died on street ( murder/vol mans; If had survived, then assault or attempted murder

- Causa causati (“cause of the causes”): D’s acts start a chain of causation that leads to death ( liability

o Hamilton: D’s act of kicking V in face created a causal chain, so liable. D is held liable for all foreseeable harms

- No rule to distinguish independent intervening cause

- No theoretical bar to multiple causes and multiple murderers

o Concurrent causation: two independent causes in fact occur at the same time, and either of them would have caused the death itself

▪ Batiste: victim receives wounds from several attackers, any of which could’ve caused his death. Both attackers held liable for homicide

o But this is rare because we think of it as “what is the cause of death?”

- Even if D has intent to kill and complete the act and V is dying, not liable for murder if someone else comes along and does an act that causes the death quicker

o Might still be liable for attempted murder

- Causation includes both “but for” cause and “proximate cause” element

o But for cause: must show that but for D’s actions, the result would not have occurred when and as it did. (has to be a substantial cause)

o Proximate cause is satisfied if the intervening cause was (1) intended or reasonably foreseeable and (2) not too remote or accidental as to fairly hold the defendant responsible

▪ Intervening cause = dependent: intended or reasonably foreseeable by D. ( liability

▪ Intervening cause = independent: another actor or event causes the harm in such an unexpected or unusual manner (not intended or reasonably foreseeable) and unjust to hold D responsible ( no liability

• Fine: D shook and briefly choked V. V slumped over, never regained consciousness, died 2 mos later. Had abnormally high blood pressure that could have killed him in his sleep. Conviction of invol mans reversed

o Rationale: act antedating death must be so integrated with and related to the homicide that it can be said to have proximately caused/contributed to it. No autopsy, so not sure if choking or high blood pressure caused death

o Distinguished from Stamp: increased culpability while committing a felony, ct more prone to find causation with increased culpability

- Must be proved by prosecution beyond a reasonable doubt since its an element of the crime

- Has nothing to do with the distinction between murder and manslaughter

- Tendencies we have / ordinary human interests:

o Focus on the human agent

o Focus on what’s startling. What’s a quick change/out of the ordinary

o Moral judgment is relevant. If we can blame someone, we hold them as the cause

- MPC: avoids relying on fortuities

o But for causation and the act of D must not be too remote or accidental to have a (just) bearing on the results

o Fails here to rationalize purposes society wants to adhere too

▪ Only way to get around would be to look at intentions and act, and not consequences

▪ MPC, sooner or later, has to acknowledge the human tendencies we have

Punishment

- Harms imposed as a result of a criminal conviction are in need of justification for they are imposed not because of a benefit to the community, but simply because of harm previously done by the criminal. Raises the question, what is the justification of punishment?

- 2 general approaches (not reconcilable)

o Retribution (moral culpability, for the wrong done by the criminal)

▪ Retrospective – justified directly by the past conduct of the person punished

• Culpability as a retroactive notion

▪ Kant: punishment should be imposed only on the ground that someone has committed a crime

▪ Hegel: punishment based on the D’s act treats him as a human being – retribution as a result of the agent’s own act/free choice

▪ Prohibits a relaxation of punishment in order to accomplish some social good

▪ Counter

• Holmes calls it “vengeance in disguise”

• Where you start affects where you end up (being abused as a child is causally connected to becoming an abuser as an adult)

• Depends on freedom/responsibility – the capacity to do otherwise ( raises issue of diminished capacity

• If the punishment does no good and the only effect is to increase the total pain in the world, what’s the point?

o Utility (instrumental)

▪ Punishment is justified by the good that it does for the community

• Potential for deterrence to others

• Protect society from harmful, dangerous persons

▪ MPC favors utilitarian rationale (Weinreb says fails to rationalize the law)

▪ Counter

• If take utility too far, could say that it could be useful to punish someone for something she didn’t do, but we’d disapprove of using people as instruments

• Man treated as a thing (Holmes)

o Composite theories (Weinreb says these are both inadequate justifications)

▪ To be punished is retributive, but how much to be punished is utilitarian

• Regards punishment as indivisible, individual desert as a “sluice” gate that’s either fully closed or fully open

• This would make the distinctions between 1st and 2nd degree murder irrelevant since we’d be concluding the distinction need have no effect on punishment

• Problem: assumes crime and punishment are interchangeable and that any crime deserves punishment

▪ The rules of law are utilitarian (determine what conduct is criminal), but the application and extent of punishment is retributive

• Apparent separation of rules and their application is illusory – it is the rules that determine who’s guilty and who therefore is to be punished

• This approach intends that the utilitarian considerations govern only the kinds of conduct that are criminal and not the exculpatory/inculpatory effect of the actor’s individual circumstances, but we know from homicide cases that these effects are highly significant in the formulation of the rules themselves

- Despite the debate, in reality there is convergence about what the appropriate punishment ought to be in particular cases as well as who ought to be punished

- “Theories of justification are often built with existing practice in mind and do not usually stray too far from the reflective moral views of ordinary citizens” Greenawalt

- Weinreb:

o Its part of human nature to be concerned about justice, but justice is indeterminate and doomed to fail

o Can’t find theory that reconciles backward looking notion of retribution and forward looking notion of utility

- Functions of punishment (most of these don’t hold up well in reality

o Deterrence (prevention)

▪ General deterrence – deter society, creating an atmosphere by telling pple this is a bad thing

▪ Specific deterrence – for a specific person

o Rehabilitation

▪ In reality, our prison system is overcrowded, dangerous

o Retribution

▪ Vengeance/justice

▪ Satisfies offender’s own need to be relived from their guilt

- Historical Evolution

o 19th century: theories mostly rehabilitative – hard work, solitary confinement (what we think of now as inhumane)

o 20th century: individualized sentences

▪ Utilitarian – released when purposes achieved

▪ In practice, ended up being a lot more formulaic (race, class, judge discretion)

▪ Depended on judge

o 1970s – sentencing guidelines

▪ Judges could depart from but only with good reason and had to state it

▪ Turned out not to depart very far from past practices

▪ Led to longer sentences

▪ Made us the most punitive system of developed countries

o Reactions against determinate sentencing ( aggravating and mitigating factors

o Codified existing sentences but led to future opportunities for parole and good behavior

- Death penalty

o Supreme court requires:

▪ Rational and consistent with principled standard (rule based, not arbitrary)

▪ Individualized sentencing (specific, explicit focus on individual circumstances)

• Sets out list of aggravating, mitigating factors and states can choose

o There needs to be guided jury discretion

o Conflicting demands: imposition of death penalty must be principled and not arbitrary or capricious, but also must reflect particular aggravating or mitigating circumstances of the crime and the individual D

o US is one of very few countries that has DP, through there seems to be a trend away from it now here

▪ Geographic distribution – all southern except for MO

o Steiker: the SC upholding state DP statutes and saying not unconst leads to people seeing it as authorization since Const = natural law

o Executing the mentally retarded is cruel and unusual punishment (8th Amendment)

▪ Atkins: rationale – trend of states to abolish DP for mentally retarded (Scalia questions); other countries don’t do it; morally less culpable because don’t understand

• Serious question as to whether either justification for the death penalty applies to the mentally handicapped

o Retribution: severity of punishment should depend on culpability of the offender, and mentally retarded can’t be most deserving offenders

o Deterrence: cap punishment will not serve as deterrence when individuals can’t process possibility of execution and control behavior accordingly

o Recently questions more because of mistake

o Racial implications – statistical correlation between race of D and V and imposition of DP

▪ Statistically shows black D and white V more likely to get DP

▪ Court rejects the constitutional claim and says correlation isn’t enough (maybe based on diff factor, such as education or socioeconomic status)

▪ Federal legislation requires jurists to certify that race and gender play no role in imposing capital punishment.

• Federal capital cases are exceedingly rare, but some states also require independent review of death penalty verdicts

o Argument for DP – we are a democratic society and most people in this country are pro DP

o If potential juror says against DP under any circumstances, not “death qualified” and are left out

Limits of criminal law: there are things the law simply can’t contemplate. There are times where nature takes over and the law should just step out

PART II: THEFT (DEVELOPMENT OF THE LAW)

Introduction

- Theft is the best area to understand the development of the law

- General direction is to bring more conduct into criminal law

- Central Issue: What number of ways are we going to acknowledge/accept acquiring property and what ways re we going to prohibit?

- Issues that must be resolved

o What counts as property

o Relevance of value of property at stake

o Significance of intent

o Significance of methods of acquisition

- Felony: any crime that has a penalty of over 1 year

- Overview of the three types of theft (w/ 2 definitions each):

o Larceny:

▪ E&E: taking of the possession of another

▪ Outline: trespassory taking (includes use of force) with asportation (“carrying away” even in the slightest sense) of the personal property of another with the intent to permanently deprive the owner thereof; concerned with possession; can’t call larceny w/o trespass

o Embezzlement:

▪ E&E: conversion to the defendant’s use of another’s property lawfully obtained

▪ Outline: relationship with trust, which is violated by a taking

o False pretenses:

▪ E&E: taking of title by deceit

▪ Outline: material misrepresentation (fraud); usually marketplace exchanges

Development of the law

- Bales of woad (1473)

o Larceny involves a trespassory taking; breaking open a package is a trespass

▪ Anon v. The Sheriff of London (The Carrier’s Case) (1473): merchant entrusts bales of woad to a carrier. The carrier breaks open bales, takes woad, and runs off.

• Issue: was the woad waif (property taken feloniously and alter abandoned by the felon. ( becomes property of the king)?

• Holding: larcenous felony

o Bales of woad were delivered to carrier, not the goods inside

o Breaking the bales open was a trespass

o Development of the law: taking by violence (requirement in original crime of larceny) ( breaking open package

• Development of the law: this case extended the crime of larceny. Originally had a strong, necessary element of violence

o Key question to identify larceny: where is the trespass?

- Bad and faithless servants (1529)

o “For so long as he is in my house or with me, that which I have delivered to him is considered to be but in my possession”

o 1529 statute

▪ When goods are given by the master to the servant, the servant has a “charge”

▪ The goods are still in the “possession” of the master

▪ So, if the servant takes the goods, its larceny, even though the goods were entrusted to him

- Embezzlement (late 18th century)

o No larceny if the supposed victim was never in possession of the item

▪ King v. Bazeley (1799): customer gave D bank teller money for a deposit to the bank. The bank teller took some of the money without putting it into bank drawer. Holding: not larceny because bank was never in possession ( no trespassory taking

o Congress enacts special embezzlement statute after case that doesn’t require trespassory taking, splits off from larceny

▪ Embezzlement: no trespass, but there is an entrustment of goods and a subsequent breach of trust

- Cheats and frauds (18th century)

o Prevailing attitude for much of history: caveat emptor – buyer beware

o In 18th century, doctrine of false pretenses is introduced

o False pretenses = marketplace fraud requires exchange induced by deceit; must affect the public

▪ Wheatley’s Case (1761): D charged with fraudulently selling 16 gallon beer kegs as 18 gallon kegs. Held: breach of contract bc only injury to private person

• An indictable offense of false pretenses must affect the public

• Buyer could have guarded against via inspection – they were careless, but no trust

o Larceny by trick: trick replaces the “force” element in trespass

▪ Pear’s Case (1779): Pear hires horse, gives a false address, says he will return it, and steals it

• Court wants to find D guilty of theft, but problematic

o No larceny: no obvious trespass

o No embezzlement: no relationship of trust

o No false pretenses: lies (false address), but no trade & public cheating

• Larceny by trick: trick (lying about address) replaces the force in trespass

o False pretenses v. larceny by trick

▪ False pretenses:

• Only if there is a transfer of title in market transaction

• Focuses on D’s behavior while face to face with the owner and deceit

▪ Larceny by trick

• Only if there is no transfer of title

• Focuses on D’s behavior behind owner’s back

▪ To distinguish:

• If the deceit is eliminated from the transaction, would the D’s subsequent behavior with respect to the property constitute an unlawful conversion? If yes, then its larceny by trick

o Many crimes can be elevated into one of the three paradigms (larceny, embezzlement, false pretenses). Just have to take a piece of the story to effectively make it fit into one of the rubrics

▪ Polzin: Braseth gave money to D to pay off her accounts with creditors. D goes to creditors and says will get debt from Braseth if can take a commission of 1/3.

• Held: breach of contract. Promised to do something that he didn’t want to

• We can elevate this into one of the three paradigms by thinking about it abstractly

Deep dive into the three types of theft

- Elements of larceny: trespassory taking and asportation of the personal property of another with the intent to deprive him of it permanently (or for a long period of time)

o Offense against possession

o Trespassory

▪ The act must violate possession of an item (e.g., must not have lawful possession)

▪ Includes violation of physical possession and constructive possession (e.g., employees holding temporary custody for owners)

o Taking and asportation

▪ Asportation: D must move the property (even if its only 2-3 inches)

• Therefore, larceny doesn’t apply to property that can’t be moved (i.e., real property)

▪ Taking: D must exercise control and dominion over the property

o Personal Property

▪ Excludes real property, documents representing real property (because they merge with the things they represent), fixtures on the land (i.e., planted, but not fallen, trees), ideas, services, wild animals, domesticated dogs (pets below law’s cognition)

o Of another

▪ Co-owners can’t commit larceny

▪ Crime against possession, not ownership. (e.g., A lends object to B for a week. A takes it back in the middle w/o asking B. A committed larceny)

▪ Defense: belief of claim of right, mistake, belief that property is abandoned

o With Intent

▪ Intent to deprive permanently or for a long time

▪ If intended to return, but belief that can return in same condition is unreasonable, its larceny

▪ Defense: intent to return equivalent property w/in short period of time (e.g., joy riding)

o To deprive

▪ Focus on loss of the victim, not the gain to the D

o Permanently

▪ Expansion: intent to deprive of important or economically significant possession

o Contemporaneity

▪ Mens rea and actus reus must coincide (i.e., must have intent to deprive permanently at the time of the trespassory taking)

▪ Expansion: continuing trespass so that they can coincide

o Finders

▪ Lost or mislaid property still in constructive possession of the owner

▪ + property bore some indication that it belonged to someone

▪ + at time of finding, D expected and intended to keep

▪ = larceny

o Larceny by trick: trick replaces the trespass

- Elements of Embezzlement: a fraudulent conversion of property of another by one who is already in lawful possession (not mere custody) of it

o Offense against ownership-possession

o Conversion

▪ Definition: receipt and withholding or applying of another’s property

▪ D “seriously interfere” with the property

▪ Doesn’t have to be for benefit of the D (focus on loss of the owner)

o In lawful possession

▪ Must have lawful physical or constructive possession (but not ownership)

• Includes lawful possession due to bailment: agreement between parties by which owner temporarily gives another possession of property

▪ Developed from CL larceny to cover people who are in lawful possession of another’s property and then convert to meet their own needs

o Fraud

▪ Specific intent crime: must have intent to commit fraud

▪ Not embezzlement if have mistaken claim of right or intent to return property

▪ Defense: intent to return equivalent property (but not if it was offered for sale)

o Difference with larceny

▪ Actual conversion must occur

▪ The original taking must not be trespassory (e.g., conversion against ownership and not possession)

- Elements of False Pretenses: a representation of a material present or past fact which the defendant knows to be false and which he intends will and does cause the victim to pass title of his property

o Representation

▪ Misrepresentation has to be affirmative/oral/active (e.g., not failure to disclose a fact unless there is a preexisting fiduciary duty)

▪ Failure to correct another’s mistake is not a crime

o Present or past fact

▪ Not false pretences if misrepresent a future promise, intent, act

• Rationale: don’t want unfulfilled contracts = theft

o Title

▪ The title must pass (or part of the title as in a conditional sale)

o Mens rea, knowledge, and intent to defraud

▪ D must know falsity of representation

▪ D must also intend to defraud

• Defense: claim of right or intent to return property

o Puffing and opinion

▪ Puffing or exaggeration of value is not sufficient for liability

Consolidation

- MPC

o Tried to get away from labels and consolidate into one crime of theft

o MPC approach: first decide if it should be theft. If yes, find which old form of theft it fits the most

o Critical inquiry:

▪ Whether the actor had control of the property (no matter how he got it) and

▪ Whether the actor’s acquisition or use of property was authorized

▪ Intent to deprive (permanent, long time, or of economic value. Doesn’t include aesthetic or psychological value)

- Theft: property, value, intent, method

o Property:

▪ Anything of value

• Things brought under theft which previously excluded: dogs, real property (land and stuff attached to it)

▪ Must be appropriate for ownership

▪ Issue: receipt of services and other intangibles

• If you take something that is available for a price, that’s theft, even though there may be no actual loss on the part of the owner (e.g., electricity, movie theater)

• Not a crime to infringe copyright unless done on a very large scale

o Value

▪ Determined by objective FMV at time of taken; subjective belief of value usually doesn’t matter

▪ MPC values (1962)

• Felony/grand: $500+ (usually prosecuted)

• Misdemeanor: $50-500

• Petty misdemeamor: less than $50, rarely results in jail time unless repeat offender

▪ Typically an element that needs to be proven

o Intent

▪ Specific intent: theft requires intent to permanently deprive someone of property (animus furandi) at the time of the taking

• Prosecution must prove beyond a reasonable doubt

• Some jurisdictions get around the fact that intent must be found at the time of the taking by the legal fiction of “continuous taking”

▪ No negligent, even grossly negligent, theft

• But, if so reckless that it is virtually the same as intention to permanently deprive, may be theft (e.g., borrowed book w/o permission, intend to return, then throw out window at a noise)

▪ Felonious intent exists only if the actor intends to take another’s property without believing in good faith that he has a right or claim to it

▪ Claim of right and the Butts case:

• Butts

o Facts: debtor had $5 in pocket that belonged to him, he owes A $5, A demands $5 at gunpoint and debtor relinquishes

o Held that not theft. But many courts reject this and say it is theft – had no right to that specific $5

• MPC broadens as a defense to all theft crimes

▪ Mistake

• Must take proper steps to return something mistakenly given to one’s possession (e.g., $20 in change instead of $1)

▪ Joyriding: no intention to deprive permanently, so not technically theft. But, usually a statute to make it a crime (even a felony)

o Method

▪ 3 acquisitive techniques long prohibited: taking, breaking trust, defrauding

▪ Issue: against what methods should criminal law prosecute? How far should it go in private transactions?

• No false pretense if there is no misrepresentation of an existing fact and simply a representation of what you’re going to do in the future

o Wheeler (1902): Wheeler owns land near Kitts’ expensive house. To get Kitts to buy land, he arranges to have building started for a soap factor. Kitts buys. Court rules NOT false pretenses since no misrepresentation of existing fact

o Hypo: Wheeler leases to pig farm after Kitts declines to buy. Kitts buys ( no theft

o Hypo: Wheeler can do apple or pig farm. Kitts wants apple farm. Wheeler chooses pig farm, so Kitts buys ( no theft

o Hypo: Wheeler wants to leave because a pig farm starting. Kitts finds out that not starting, but says nothing and buys Wheeler’s land. ( no theft

o Hypo: A wants to buy Kitts land. When asked what is going on at Wheeler’s, Kitts says he’s building a swimming pool ( false pretenses

• Draw the line: false pretenses = affirmatively causing someone’s ignorance

o But, can be false pretenses if affirmative misrepresentation of a promise for a future action

▪ Puffing: not criminal

▪ False advertising: some states prohibit

▪ Finding: a person who comes into control of property that he knows to have been lost, mislaid, or delivered by mistake is guilty of theft if he fails to take reasonable measures to restore the property to the owner with purpose to deprive the owner of that property

▪ Burglary: adds technical element of “breaking and entering” through something that is closed

▪ Robbery (aggravated theft):

• Criminal invasion of property rights + danger of bodily harm

• Robbery: taking property from a person by force or threat of force.

o If victim resists at all, then its robbery

• Much more serious consequences

• Often a crime of opportunity

• Very serious penalties

• Old crime of larceny (forceful taking) is close

▪ Extortion (aggravated theft):

• Attaining money or property by a threat other than that of immediate violence (e.g., force, accusation of a crime, or reputation)

• Purpose of threat needs to be get the victim to do something

• Crime is complete once the demand is made, even if property never transferred (e.g., kidnapping, burglary, forgery)

• When can a threat to do something that you are allowed to do lawfully be considered basis for extortion?

o MPC: very broad. Leaves to prosecutor’s discretion. Generally requires evidence of some other basis for doing what you’re doing

o Probably not a crime if you’re asking a plausible amount reasonably owed to you

▪ Hypo: grocery store owner demands $150 to not call police when someone steals a few bars of soap. Prob extortion because hasn’t seen him steal $150 worth of goods

▪ Hypo: Autumn Jackson claims illegitimate child of Cosby. Demands $40m or will tell press. If demand lower, then maybe it would be ok since he may have legitimately owed her that much

o General MPC requirement for legality: doing something for reason other than to get money

• Why is it the case that if two people would prefer resolution (e.g., give and get money rather than exposure), that we don’t allow that?

• Other factors/special provisions that change the nature of offense (e.g., robbing federally insured bank)

▪ Destruction of property (vs. asportation): guilty of criminal mischief

• Evidence of focus on gain of defendant rather than loss to victim

▪ Receiving stolen property:

• Buying or acquiring possession to any property that has been obtained in any manner constituting theft, knowing the property to be stolen or obtained

• Must be shown that the recipient knew or should have known property was stolen

▪ Holmes: true grounds of decision are considerations of policy and social advantage

Analysis

1. Did the victim intend to give title? Or only possession?

a. Title – can only be false pretenses

b. Only possession – larceny or embezzlement

2. Did the defendant come into the property lawfully (usually by consent)?

a. Yes – embezzlement

b. No – larceny

c. Consent obtained by deceit – larceny by trick

3. Then, explore the intricacies of that offense

PART III: RAPE (LAW IN SOCIAL CONTEXT)

Introduction

- Rape is the most underreported crime in the US – major reason is the victim’s fear about the treatment she will receive from the criminal justice system

- Feminists and others believe that accusations of rape are not taken seriously and are blamed on woman

o Pattern of prosecution and conviction suggests that women’s morality and behavior are an issue

- Others assert that the intractable features of the crime account for limitations in the law’s response

The law

- Three requirements:

o By force or threat of force: enough to conclude that she was in danger

o Against the will

▪ Old law of rape: had to fight to utmost

▪ Current law: if in fear of life, don’t need to struggle

o Lack of consent: wide difference between consent and submission

▪ Unnecessary to scream where constrained by threat of force or violence

▪ No resistance requirement in most jurisdictions

- Law defines rape as vaginal intercourse by force or threat of force against the will and without the consent of the other person

o Rusk (1981): Pat drove Rusk home to his strange neighborhood after meeting in a bar. Convicted of 2nd degree rape.

▪ Facts supporting rape conviction: Rusk took keys, threat of leaving in an unfamiliar area, size difference, choking episode, implied yes when Pat asked “if I do what you want, will you let me go without killing me?”

▪ Facts negating rape conviction: Pat went upstairs without exertion of physical force, stayed in apartment when he left the room, didn’t struggle when taking off clothes. Wasn’t giving threats. Pat scared of detective husband following

▪ Lingering issue: D reasonably thought the woman was consenting. The woman reasonably feared harm or force. Which person’s perception of the situation is more reasonable? How should the law deal with two different perceptions in seduction?

- Affirmative defense of mistake: if D’s doesn’t conduct manifest use of force and V’s conduct looks like consent to a reasonably person, many jurisdictions allow acquittal ( D lacks prerequisite wrongful intent

o Some jurisdictions don’t allow reasonable mistake defense about consent in rape cases because it is the victim’s state of mind that controls

▪ Sherry (1982): doctors carried victim nurse from party to a house. Gang raped her. She felt “physically numb and could not fight,” but did not tell them to stop. Convicted of lesser-included offense of rape without aggravation, 6 months in jail. (Rusk got a longer sentence).

• Lower grade of rape due to less sympathy for victim and more for defendant doctors?

- Spousal, homosexual, and female rape

o Traditional common law rule says no rape if its between a husband and a wife

▪ Most states have abolished or severely restricted this rule

▪ Others have retained, including MPC

▪ MPC: spousal relationship creates the presumption of consent, valid until revoked. Implicit consent and convicting of rape will hinder the reconciliation process

o Large majority of states have adapted legislation making rape a gender-neutral crime, but MPC retains old rule and claims it is because male on female rape is the most serious

▪ Homosexual rape more common in prison

- Grading

o Old attitude: rape not as bad if victim engaged in a lot of casual sex

o Controversial, but most states do have some form

▪ Violent assault on a stranger with weapon. Physical injury

▪ Imposition on a social acquaintance (e.g., date rape)

▪ Also, statutory rape, spousal rape

▪ Some of the grades are because the victim is unable to give consent (e.g., unconscious, age, mentally retarded)

o Argument for grading:

▪ Difference between harm done and culpability of two situations

▪ Difficult in obtaining convictions in date rape: juries won’t convict if penalty very severe for date rape

o Argument against grading:

▪ Reinforces notion that real rape is violence and minimizes the significance of date rape, which is a lot more common

▪ Argument that paradigm of rape should be date rape and then add punishment for aggravating factors (e.g., violence)

• Trend has been the opposite

Social considerations

- Generally thought that prompt complaint is a strong indication of rape, corrobative of the complaint.

- Cultural norms: men have different attitude to this than woman? Notion that men are supposed to be aggressive and the woman is supposed to be passive/resisting

- Burden of proof debate

o The more emphasis is put on force, more burden of ambiguity placed on the woman

▪ Stronger evidence required for resistance

▪ Why should a woman have to fight to avoid unwanted sex? Why can’t she just say no at any point?

▪ Fear that if this is the case, more onslaught of false accusations

o The more require affirmative consent, more you put the burden on the men

- Those who are college educated have a different attitude than those who aren’t

- Only crime that comes so close to our own natural behavior/actions, and only crime where you known in advance if you are the potential D or potential V

- Law doesn’t like to intrude on people’s personal lives

- MPC was drafted by men in 1962

Evidence

- Problem in many rape cases is that there is one person’s word against another

- So, a lot depends on credibility of witnesses and their stories

- Corroboration: in the past, many states said that an accusation of rape had to be corroborated and supported by others.

o Justification: combat false accusations

o Eliminated in 70s from most states, but still retained in MPC

- To admit evidence, balance between what’s probative (relevance to proving crime) and prejudicial (prejudice jury against victim)

Rape shield laws

- In the past, evidence concerning victim’s prior sexual conduct was always admitted at trial

o Women are unwilling to make complaints if taking the stand means cross-examination on their sexual history and exposure from defense counsel. Mitigates aggressive tactics

o Juries wouldn’t convict if they thought the woman was promiscuous

- Recently, almost every state has enacted rape shield laws to restrict the admissibility of evidence about a woman’s past sexual history so that the victim is not being put on trial. However, today they are applied weakly. Also, MPC has no rape shield law

o But, we admit evidence that D has been generally aggressive with other women in the past. How is this different?

- Also, have no effect in plea-bargaining. We should go further to protect the women, since rape cases are rarely reported, rarely won, and rarely even prosecuted – DA’s hate to lose

- What is admitted and excluded when victim takes the stand (depends on jurisdiction)

o Evidence of sexual reputation

o Past conviction is admissible as to general credibility unless past crime has to do with sexual conduct (i.e., prostitution conviction) (but not in Williams)

o Prior sexual act to explain presence of semen is admissible

o Evidence of consensual sex with D is okay usually (not in Williams)

o Problem is that ordinarily we give great leeway to D to introduce evidence that may be exculpatory

- Past sexual relations and prostitution are not admissible, not relevant to impeaching credibility

o Williams (1982): D’s counsel sought to introduce evidence of victim’s past sexual relationships with D and V’s prior arrest record for prostitution. Calls into question the constitutionality of the rape shield law by claiming that it violated the D’s 6th amendment right to confront accuser and cross-examine her. Both items of evidence were excluded

▪ Rationale: no connection between chastity/morality and truthfulness

▪ Court challenges that probative value of evidence (the relevance of the evidence that tends to prove an issue) is not as great as its prejudicial value (how the evidence will prejudice a jury against the victim)

▪ Her having sex with one man doesn’t show willingness to have sex with four men. Prostitution is not correlated with credibility. If anything, evidence that she was a prostitute would seem more probative of the fact that she would be reluctant to provide sexual services gratis

▪ Dissent: it would show that she is willing to have sex with 4 men in a row (she’s had sex with so many men it no longer matters). Also, the fact that she had sex with one defendant before may suggest consent this time, at least with him

- Issues of relevance of certain evidence

o Judge is likely to admit evidence and err on the D’s side because fear being reversed

o Judges schooled in procedural rules that protect D

o Judges are still mostly men

o Judges sympathies may be with accused (identifies with self or son)

o Shield laws have enormous importance for victim as a shield to get on stand

o Even if evidence is admitted with cautionary instruction, jury still likely to give it weight

- Do shield laws increase conviction of innocent defendants?

o Police/DAs investigate rape heavily; subject to tight scrutiny before it comes to trial

o Such a low conviction rate on rape that most DAs are unlikely to take most cases to trial (they hate losing cases)

o Policy judgment has not worked out in a way to fear wrongful conviction

o More likely rape shield laws don’t go far enough to protect victim

- Pre-trial investigation: no shield laws in pre-trial investigation. Women still subject to intense inquiry about past by police and DAs. Women’s past is available to the judge at sentencing & to DA at plea bargaining table ( lighter sentences

Rape summary

- Objective definition of the offense from the offender’s conduct – NOT the victim’s state of mind

- Greater protection (evidentiary) to the victim in recent years, but more still needed

- Assimilation of various other kinds of sexual assault, such as homosexual rape & female rape

- Extent to which criminal process victimizes the victim

- Adversary process has gone too far beyond what most would consciously defend

- Social problem of low reporting rate bigger than social problem of false accusations

- Diversity in social attitudes with respect to whether this is viewed as criminal

- Criminal law is a crude engine for social change

- Elimination of spousal exclusion

- Grading of offenses/reduction of penalties

- Peculiar features of rape as a crime

o Know in advance who might be the potential D and V in the crime

o Social class makes a difference

o Potential conflict between social justice and individual justice

▪ Are we trying to makeup for the social injustice to women via how we treat individual cases?

PART IV: ACTOR AND ACT

Insanity

- Rationale:

o In criminal law, tension between attention to harm done and attention to person doing harm – exacerbated if the harm is very great or the actor has a strong claim to exculpation

o Policy of insanity defense

▪ Unfair to punish people for acts that result from mental illness

▪ Punishing insane people will not have a deterrent effect

- Timeline of legal development

o Pre-1843: Few discussions of law of insanity. Only “madmen” excused

o 1843-1954: M’Naghten test or M’Naghten + irresistible impulse test

o 1954-1970: Durham test

o 1970: MPC (strong sense of community)

o 1980s+: M’Naghten plus test (strong sense of individualism and liberty)

- M’Naghten test (1843-1954):

o Elements of defense, burden of proof on D

▪ Defect of reason due to disease of the mind

▪ At the time of the crime

▪ Lack of knowledge

• Did not know the nature and quality of the act he was doing; OR

• If he did know, didn’t know that what he was doing was wrong

o Focused on D’s state of mind

o M’Naghten (1843): D thought devils took human shape in form of the govt and threatening his life, so he shot V who D thought was the prime minister. Held not guilty on grounds of insanity

o Defined another way: mental illness must have virtually nullified the actor’s cognitive capacity so that he was unable to exercise the moral understanding of normal persons

o Criticisms:

▪ All or nothing rule. Relies too much on capacity to understand with no reference to capacity to control action

• Could read “know” narrowly to include will, but language suggests its more about intellect

▪ Never clearly defines what it means to know the difference between right and wrong

▪ Psychiatrists not comfortable with describing in such black and white terms

- M’Naghten + irresistible impulse test (1844-1954)

o Irresistible impulse test: D must have acted from an irresistible and uncontrollable impulse Rogers (MA 1844)

o Courts adopted this additional provision along with M’Naghten test as a response to criticism of original test

o Criticisms:

▪ Seemed to require impulsive behavior, and excluded someone who brooded for a long time, but still couldn’t control because of mental defect

▪ How to distinguish between irresistible impulse v. impulse that just wasn’t resisted

- Durham test (1954-1970):

o Elements of defense

▪ Unlawful act product of

▪ Mental disease or defect

• Disease: changing, deteriorate or get better

• Defect: permanent

o If no causal connection between mental abnormality and act, still held responsible

o Focused on the link between the crime and D’s condition

o NH first picked up this test and it worked very well. Left to jury, any evidence admissible

o The DC court of appeals picked it up in 1954. Left alone, it prob would have worked like NH court, but since this court was more visible and urbane it sparked a highly sophisticated debate. Defining moment in American criminal law

▪ DC court couldn’t sustain in the end. Eventually adopted M’Naghten

o Criticisms:

▪ Disease OR defect could be read to include several mental states (e.g., sociopath – mental disease/defect or morally lacking)

• All conduct emanates from some mental condition

▪ Only includes pathology. But it wasn’t obvious what was pathology outside of normal human condition

▪ When is crime a product of mental disease? No way to prove but for causation

▪ Wasn’t MECE. Gap left in middle: act wouldn’t have been committed without disease, but they still had some control of their actions

- M’Naghten v. Durham

o Conflict between equality and liberty

o Different views on law as an instrument of social control

o M’Naghten:

▪ Test: If substantially unable to comply with law, not guilty

▪ Compared to normal person?: No, viewed as individual and whether that individual was capable of following law

▪ Dominant view: liberty

▪ Likely punishment: prison

o Durham:

▪ Test: If person has an identifiable mental disease, less able to conform to law, and shouldn’t be culpable

▪ Compared to normal person?: Yes. If not a normal/reasonable person, not held liable

▪ Those in favor, also tended to be in favor of strengthening D’s const rights

▪ Dominant view: equality

▪ Likely punishment: mental treatment center until you were cured

- MPC Test (1970-1980ish):

o Factors

▪ Lacks substantial capacity either to appreciate criminality (wrongfulness) OR

▪ Lacks substantial capacity to conform his conduct to requirements of the law

o Mental disease or defect doesn’t include abnormality manifested only by repeated criminal or otherwise anti-social conduct

o Differences with original M’Naghten:

▪ Loosens up test; gives room for those who couldn’t use knowledge of right or wrong

▪ “Substantial capacity” v. all or nothing

▪ “Appreciate” v. know (includes will/control aspect)

▪ “Capacity to conform” v. irresistible impulse (takes away impulse requirement)

o Problem: usually people are called to account for loss of control

- M’Naghten plus test (1980s+):

o Same as M’Naghten test, with burden of proof on D

- Other issues

o Burden of proof:

▪ Presumption of sanity

▪ Have to give notice of planning to use insanity defense

▪ A state can constitutionally put burden on D and for it to be a high burden

• Fed court: insane by clear and convincing evidence

• Sanity not an element of crime, so Winship rule doesn’t require proof beyond a reasonable doubt by prosecution

o Filtered through trial

▪ Adversarial process

▪ Voir dire goes on for days if insanity defense. Plant seeds of argument

▪ Lawyers are very sophisticated

o Guilty, but mentally ill

▪ In response to call for the abolition of the insanity defense, a few states have enacted statutes

▪ If D suffers from mental conditions that require treatment, D can get treatment, but if it is concluded prior to expiration of the person’s sentence, then D is still liable for the remainder of the sentence

- Competence to stand trial

o Not a defense to crime, but a procedural objection to intellectual capacity. Can’t be found guilty or innocent

▪ No statute of limitations once person is committed (i.e., if competent in 50 years, can still be tried)

o If not competent to stand trial, committed as a substitute

▪ Competence = aware of surroundings

o Detention due to inability to stand trial can’t exceed a reasonable period of time necessary to ascertain whether D will become competent to stand trial at some time in the foreseeable future, otherwise, state must go through civil commitment proceeding or release D

▪ Jackson v. Indiana (1972): Deaf mute with mental level of preschooler caught for 2 minor robberies. Found sane, but that condition would never improve so that he was competent to stand trial.

• Holding: Grants motion for new trial because court can’t constitutionally commit an individual for an indefinite period of time if D has not been convicted of a crime. Incompetence to stand trial is not sufficient to commit indefinitely.

• Rationale: permanently institutionalizing a person would deprive of equal protection under 14th amendment.

o Indefinite term of commitment ok once found not guilty by reason of insanity. The length of the D’s hypothetical criminal sentence is irrelevant to the purposes of his commitment

▪ Jones v. US (1983): D tried for shoplifting, petty larceny. Jail unlikely, definitely max of only 1 year. Found incompetent to stand trial, but insanity defense accepted. Committed immediately for treatment and was in institution for 8 years.

• SC: Proof of criminal acts is sufficient for commitment. Civil commitment not necessary.

• Without appropriate facilities for treatment, Jackson fades into Jones

o Can not force insanity defense on D and then commit, but state can pursue civil commitment procedures if deemed necessary

▪ Lynch (1962): D wanted to plead guilty, but forced to plead not guilty by reason of insanity. SC found “substantial constitutional doubts” in D’s commitment, but allowed civil commitment since crime provided evidence of danger to public peace

▪ MPC: crime itself is sufficient to show need for commitment

• Annual hearing to see if continuing need for treatment. Very peremptory without any real substance.

• Generally, not that much treatment unless family very involved

o SC held constitutional: in sex crimes, on eve of last night in jail, move to commit because dangerous to others

o Sex crimes: may be committed indefinitely if mental abnormalities make you likely to commit sex crimes. Continues until personality has changed to make individual safe at large

▪ Court must find future danger and proof of serious difficulty in controlling behavior

o Issues with commitment process as it currently stands

▪ Above all very minor crimes

▪ Conflict of lawyer: reveal potential insanity which could lead to long commitment or plead guilty and only have few months in jail? Generally go with jail

▪ Pressure on psychiatrists and hospitals not to release unless absolutely certain that won’t be a recurrence. Often just keep committed when have no reliable basis for observing improvement

• More concern for wrongful release than for wrongful commitment

• Often hold them for the period of what would have been the full criminal sentence

▪ If a very serious crime, desire to protect the public somehow: prison or commitment

o Big question: what principle ought to govern response when a person commits a criminal act but is not altogether culpable? Act tied to personal circumstances or fact?

Mistake

- Mistake of fact: no special doctrine, rather it depends on the crime in question

o An honest and reasonable mistake can mitigate or excuse a crime if it negates mental element of the particular crime.

▪ If element of crime is negative because of mistake, D gets the benefit of it

▪ If mistake is irrelevant to crime, doesn’t matter

o Some crimes are act at your own peril and mistake is not allowed to mitigate

▪ Bigamy (double marriage). Can use mistake defense now

▪ Statutory rape (don’t care if someone avoids sex with young girl because not sure of age)

o If you deliberately avoid knowledge, your lack of knowledge is not a defense

▪ Jewell: knows that carrying drugs, but doesn’t look into the secret compartment to see what exactly

- Mistake of law:

o Ignorance of the law is no excuse

▪ Rationale:

• Holmes: all criminals would say this, incentive to remain ignorant of law

• One of burdens of citizenship in a community is to know the law

o Exceptions

▪ D has made a good faith effort before in engaging in conduct to ascertain and abide by the law

• Long: D sought legal advice twice about proper procedure for obtaining divorce in AK even though lived and remarried in DE. Mistake functioned as excuse for bigamy

• Horning: interest rate charge not allowed in DC, so D moved shop to VA and bussed people in from DC. Elaborate scheme. Court says statute still applies because substance of business is in DC.

• Often, when in good faith and realize it’s a mistake, D will try to make restitution of some kind

• Key question: is the person making a bona fide effort to follow the law, and they are just mistaken, or are they trying to toe the line and evade the law?

▪ D relied on an official statement of the law, which later turned out to be invalid or erroneous

• MPC: judicial decision, statute, administrative order, official interpretation of the public officer or body charged with the interpretation

• Particular transaction/conduct is inquired about

▪ Practical result: discretion basically left to the prosecutor, whether he thinks D tried to follow law in food faith.

- Liability without fault

o It is constitutionally permissible to make conduct criminal where D doesn’t know law and doesn’t know he’s doing something criminal

▪ Larger societal interests that override demand of justice for the individual

▪ Strict liability troubles people a lot because there is no culpability

• Typically connected with public welfare offenses where the punishment is minor

o D must have to had performed the act had the power to prevent the conduct in order to be held liable. But, D doesn’t have to be “at fault” nor reasonably know what doing is wrong

▪ Rationale: social judgment that it is fair to punish one who intentionally engages in conduct that creates a risk to others, even though no risk is intended. Dispenses with mens rea requriement

▪ Park: punish corporate officer for company’s food contamination by rodents

Attempts

- Cases in which no harm occurred, but the actor tried to commit harm

- Formation of an intent to commit a crime unaccompanied by any act towards its accomplishment does NOT constitute a crime

- Additionally, formation of intent and preparation alone is not enough. The acts must come so close to the accomplishment of the intended crime that, but for some timely interference, the act would be completed

o Rizzo: police stop car that was searching for guy who carries money to bank. That guy was nowhere in sight at time police stop the car. Held: not guilty. Rationale: just preparation, not an attempt

▪ Rationale for not convicting preparation: haven’t taken the critical steps to be a criminal, want to give person opportunity not to be a criminal, government shouldn’t interfere in private lives

▪ Rationale for convicting attempt: no relief for unlucky criminals, proven menace, effective police prevention

o Stalworth: in parking lot at bank. Court found sufficient to charge with attempt

o Preparation v. attempt

▪ Attempt have to be very near to actual crime

▪ Proximate rather than remote

▪ Dangerously near to consummation of crime

▪ Crime would have been completed but for timely interference

▪ Shoot and miss = attempt; buy gun with intent to kill = preparation

▪ Other factors

• Nature of the intended crime: if more serious, attempt may be inferred from acts further away from actual crime

• Nature of act: may acquit if not a substantial harm

• Manifestation of criminal intent

• How much has been done

• How much remains to be done?

• Likelihood that the crime will be committed

• Opportunity to desist

• Proximity in time and space

o What attempt looks like

▪ On location where crime will be committed

▪ Time when location about to be committed

▪ Crime underway, in motion

- MPC:

o Factors

▪ Substantial step to commission of crime

▪ Strong corroboration of intent

o Pulls attempt farther back in preparation of crime: Rizzo would probably be found guilty

- Conflict:

o Balancing public policy goals of safety (longer you wait, increased likelihood of danger) and individual rights (government shouldn’t interfere in private lives when haven’t done something wrong yet)

o Addressed through law of attempt and police work

▪ If police suspicious, can’t arrest without probable cause but can stop and frisk

- In practice prosecution for attempt is rare, except when:

o Attempt is complete, but crime has failed

o Bargained guilty plea for crimes with no lesser included offense

o On location, with crime in motion

o If society becomes more nervous/insecure, law of attempt will be broader

- Depends on state whether attempt and actual crime is equal punishment

o MPC says equally culpable

o Generally, attempt is less or judge has discretion

- Possessory – not harming anyone, but prelude. So make criminal

Impossibility

- Factual impossibility will usually not work as a defense, but true legal impossibility may

o Factual impossibility emphasizes your intent: intended act is bound to fail due to some external circumstances unknown to D. Extraneous circumstances unknown to actor or beyond his control prevent consummation of the intended crime

▪ Proof of intent to commit a specific crime is sufficient for prosecution

• Siu (1954): D makes a deal to buy heroin, but police switch it for talcum patter. D argued that can’t convict of possession because he never actually possessed it. Convicted – he intended to possess

o Allow police intervention to keep actual crime from happening as long as its not entrapment and will still convict D for his intended crime

o Legal impossibility emphasizes the actual situation: D sets out to do something D thinks is illegal, but is actually legal. Its not a crime if intended conduct, even if completed, would not constitute a crime

- Courts have drifted away from distinguishing between factual and legal impossibility (Weinreb also doesn’t like the terms)

o Often, can describe most situations as factual or legal

o Instead, use this analysis: what did D want to do?

▪ MPC: generally, D should be treated with the facts as he supposed them

▪ If wanted to do X, and X is criminal, impossibility is usually not a defense

▪ If according to common knowledge, its impossible (e.g., shoot and kill someone who is already dead), then likely won’t convict

- Impossibility is rarely used as an excuse anymore

- Reasons not to prosecute

o Entrapment by law enforcement (enticed to commit crime)

o Person is a total fool (e.g., thinks aspirin is dangerous)

o Doubtful intention (e.g., leaning on building to make fall on someone)

Doctrine of renunciation (MPC)

- If get far enough to commit attempt, then can renounce

- Not used much because most jurisdictions not as liberal with what counts as attempt as the MPC

Attempted extreme recklessness

- Thacker: reckless conduct, which doesn’t require to call attempt

- Extreme recklessness just a hair away from intent. Easy for court to slip into attempted murder, but not technically right

Conspiracy

- Defined: agreement between two or more persons to commit a crime

o Type of communication is irrelevant. Doesn’t need to be formal or written. As long as there is an agreement, there is a conspiracy

o Main elements

▪ Agreement to commit a crime

▪ Meeting of the minds (i.e., agreement on the essential nature of the plan)

▪ Wrongful intent

- Mere knowledge of illegal usage is not enough, need to have a stake in the outcome and promote the illegal venture in some way (i.e., make it your own). However, selling to people who you know is in a conspiracy makes a part of the conspiracy

o Falcone: D’s sold necessary goods (e.g., sugar) to still operators who were in a conspiracy. Volume of sale indicated some illegal usage. Held: not guilty of conspiracy because there was no proof that they knew distillers were in conspiracy and didn’t promote the illegal venture.

- Not a requirement to know all of the conspirators and there doesn’t need to be an explicit agreement between parties. If D intended to “further, promote, and cooperate” in the crime and had a stake in the venture, D is liable for conspiracy

o Direct Sales: pharma company selling morphine by mail order. Sold to rural doctor, Tate, in amounts that was 400x ordinary doctor’s use. Tate found to be in conspiracy with those who sold drugs on street. Issue: was DS also part of conspiracy? Held - yes

▪ DS argument: relying on Falcone, no liability if they are involved in legal sale

▪ Court: Falcone not meant to be an insulation for sellers and suggests that SC should not have conceded in Falcone that there was no seller-buyer conspiracy (maybe they had the requisite stake in the venture)

▪ Differences with Falcone

• Government authority notified DS what is legal amount of morphine

• No way that this amount has a legitimate use

• Instructed Tate to fill out 2 separate forms to be legal

• Huge effort to promote sales (e.g., discounts for bulk orders)

• This is a regulated substance. Sugar is not.

▪ Stake in venture? Yes – in business interest to have Tate keep buying

- Analysis:

o First, identify what type of conspiracy (e.g., buyer-seller)

▪ Buyer-seller, etc.

▪ Wheel: someone (middle of wheel) perpetuating fraud with a specific person, but does with a lot of people

• Generally, if agreement between 2 people can’t succeed without other agreements, then can consider the whole thing one big conspiracy

▪ Chain: chain of people (e.g., importer, distributor, retailers)

• Don’t need to know the identify of people, but most reasonably know a line of distribution ( perhaps one big conspiracy

o Then, identify other necessary features:

▪ Knowledge

▪ Stake in the venture

▪ Promotion of the crime

▪ Encouragement of opposite party

▪ Reason to rely on other person

▪ If sale, is it ordinary business transaction? Excessive price? Prolonged? (more likely to know what’s going on over a period of time)

- RICO statute: any act that involves pattern of racketeering activity, lawful or unlawful enterprise, can be put together in one conspiracy

o Strong weapon for the government – effort to get at money laundering and large scale operations

o Racket: businesses run as part of organized crime

- Pinkerton rule: if you enter a conspiracy with someone else, that constitutes aiding and abetting ( become liable for any acts done in furtherance of the conspiracy

- Aiding and abetting: material assistance with purpose of assisting. Liable as if you are a principal

o Knowledge of crime is not enough, has to participate in it and try to make succeed through actions

▪ Can aid and abet an attempted crime

o Difference with conspiracy: doesn’t require an agreement

o Exception: if you join as accessory after the fact

o Aiding and abetting a conspiracy doesn’t necessarily make the person a member of the conspiracy (i.e., if not included in the meeting of the minds)

- In the end, D is liable for any independent crimes he committed and liable for any crimes committed by conspirator in furtherance of the conspiracy (Pinkerton)

o Only liable for crimes when you’re part of the conspiracy: begins when agreement made, and ends when agreement ends

- Doctrine of renunciation: D not liable for crimes after he has effectively renounced the conspiracy and made some affirmative act to withdraw

o Some say have to effectively communicate renunciation to other conspirators, but likely that steps reasonably calculated to communicate withdrawal will be sufficient

o Still liable for conspiracy and any crimes committed before renunciation

o Many jurisdictions have not adopted this doctrine. But, many DA’s won’t convict you if you tell police.

o If you have set something in motion and the outcome is certain (e.g., threw V off building), can’t claim renunciation

- Common law: crime is completed upon the agreement, can be liable even if the object of the agreement is never realized

o Argument for: attempted to commit it

o Argument against: conspiracy is an inchoate crime (i.e., crime of preparing or seeking to commit another crime. Nothing has actually happened yet)

- Other rules

o After the main object of a conspiracy has either succeeded or failed, one who helps them cover up the conspiracy is not liable as a conspirator

o Not liable for conspiracy if agreement to commit a lawful act

o D is liable for conspiracy if thought something was legal, but in fact was not

▪ Rationale: ignorance of law is no excuse

o Sears rule: no conspiracy when one of the supposed conspirators is a government agent who intends to frustrate commission of crime because there is no meeting of the minds

o Wharton rule:

- Like attempt law, conspiracy law is accordion like: it can be used more broadly to sweep up a lot of ordinary speech when the government wishes to prosecute more

Limitations of criminal law

- Punishment

o The 8th amendment prohibits punishment that is not proportional to the offense committed – prohibits “cruel and unusual punishment”

▪ Not a violation to have harsh prison conditions if not meant to be punishment

▪ Applies to federal government and has been applied to some states through DP clause

▪ Generally up to the state/judge to decide sentences

o Proportionality is guided by objective criteria

▪ Gravity of the offense

▪ Sentences imposed on other criminals in the same jurisdiction

▪ Sentence imposed for the commission of the same crime in other jurisdictions

- Content of crimes

o There is no crime without law that is firmly established

o Void for vagueness doctrine: penal statutes must define the criminal offense with sufficient definiteness that ordinary people can understand what act is prohibited

o Criminal penalties may be inflicted only if the accused has committed some act. D can’t be punished for who he is/status

▪ Robinson: court struck down statute criminalizing drug addition

o But, state can punish someone for a crime they can’t avoid committing. All that is required for a criminal statute is some act

▪ Powell: state can convict a chronic alcoholic of public drunkenness, even though he can’t help being drunk ( threat to public.

• Court pulled way back from notion that it would consider free will or compulsion

PART VI: CRIMINAL PROCESS

Introduction:

- Reddish

o Arrested 24 min after the robbery

o Delay in the trial

▪ Wasn’t tried for 14 months, during which time he was retained in jail or released

▪ No reason for delay – police had all evidence 1 hour after robbery

▪ Delay is the least attractive feature of our system

o Sentencing

▪ Most of trial procedure is gone, most characteristics of adversary process gone

▪ For 90% of D, it’s the sentencing that matters since they pleaded guilty

▪ Evidence used for sentencing can be kept confidential

▪ When go to prison, usually know when likely to get out on parole ( formulaic

▪ Reddish’ sentence: possible – 200+ years in prison; actual – 7-8 years

o Factors used to determine Reddish’ sentence

▪ Convicted of prior crimes: not major, but violent

▪ Violence seems to be escalating

▪ Not great upbringing: alcoholic mom, unstable home life

▪ Wife and 4 kids ( go on public welfare if he goes to jail

▪ Officer summary report: not very optimistic about guys future

▪ Had good job for 32 months before crime

o Got out ( heroin distributor and convicted of triple murder

- Themes in procedural criminal law

o Influence of individual justices

o Context/historical time matters

o Preferring one constitutional rubric over another

▪ Courts usually prefer to go off on the 4th rather than the 5th amendment

▪ 4th has a reasonableness provision and so it is a looser standard

o Political slant

▪ Protecting individual v. community interests

▪ When does the individual have to sacrifice for the greater good?

▪ Unfortunately, its all so confused that sometimes it boils down to “I’m liberal, so I think…”

▪ Impact of wealth on quality of attorney and fairness in process for indigent (bail, public defenders with overloaded cases, etc)

▪ How much are we to distinguish between those things in a criminal process that must be guaranteed regardless of wealth, and those that need not be?

▪ Value at stake: need to find the value at stake that outweighs the value of solving crime

o Taking responsibility for actions

▪ Problematic tension between society thinking one ought not confess under our adversarial system and procedure that encourages plea bargaining

▪ Don’t want to rely on D’s confessions to convict? Want police to find evidence against D, independent of D? Do we value D’s silence?

▪ Problem: police give Miranda warnings, then tell suspect they’ll feel better if they confess

▪ Rule on self-incrimination not precluding incrimination of others, which you can be required to do: seems to prefer egoistic self-preservation, but denies altruistic protection of others

o Rules and function

▪ How closely are rules tied to the function they serve?

▪ Always ask, why? What is the justification?

▪ Getting police to clean up their act

o Practicality slant: crime prevention and responsiveness

▪ What the impact of the constitutional limitation on law enforcement

▪ Is it realistic that police will do that?

▪ How do you limit aggressive police behavior and still allow police to be responsive and protect themselves?

▪ Better to let criminals escape than for the government to act criminal to catch them

o Role of lawyer in process

▪ Hypothesis that the only reason for having a lawyer is to negotiate with the court to avoid jail time

▪ Some people really want a champion and want to avoid conviction (they’re screwed if indigent misdemeanor defendant’s under appointment rules)

Steps in the criminal process

- Formal process v. what happens in reality

o Formal: when defend our process, do so on this one

o Why divergence between the two?

▪ Said to be because of D’s voluntary waivers

• D’s waiver of Miranda rights

• 90% of D’s plead guilty ( waive right to jury trial

▪ Weinreb: more because process pushes D’s to do this

- Formal process (in theory)

o Crime

o Complaint (report of crime to police)

▪ By private person

▪ Triggers investigation by police

▪ Weinreb: in reality, complaint follows arrest and doesn’t serve much purpose

o Investigation

o Arrest:

▪ Arrest not a means to investigate

▪ Permitted only if “probable cause” (4th amendment phrase, means good reason to believe person committed offense)

▪ Note: police have authority to arrest, but not to detain (magistrate has that power)

o Initial Appearance:

▪ Person is brought in front of magistrate and informed of charges

▪ Don’t need this constitutionally if there was arrest warrant

▪ 2 main functions

• Lawyer: if can’t afford, court appoints one

• Determines whether detainee can be held further ( orders release on bail or own recognizance (no bail) or detained until trial

▪ NOT a critical state requiring lawyer

▪ Formal start of adversary process. Officially becomes a defendant

o Preliminary Hearing/Examination (review basis for prosecution)

▪ Adversarial process to determine sufficiency of charges ( whether or not there will be formal prosecution

▪ Critical stage requiring lawyer

o Formal Charging Decision

▪ Indictment (returned by grand jury)

• In Fed Ct., if charged with felony have right to grand jury indictment

▪ Information (returned by DA)

• Prosecutor decides formal charges

o Arraignment (defendant pleads in response to accusation)

▪ Usually: “Not guilty” plea ( trial

• So automatic, that in some states, D doesn’t have to appear

▪ Other option: “Guilty” plea ( sentencing

o Trial prep: discovery, depositions, motions, etc

o Trial

▪ All evidence against D must be brought to trial

▪ No hearsay

o Jury deliberates

▪ NG ( D released

▪ G ( 2/3 weeks ( sentencing

o Note: proof at each stage = beyond a reasonable doubt

- Actual process

o Crime

o Investigation (w/o formal complaint)

▪ No time for elaborate investigation usually ( police spend time on crimes most likely to be cleared or more serious ones

▪ No investigation in the vast majority of crimes (except for when police killed, bank robbery)

o Arrest (usually w/in 48 hours)

o Police write up incident report (rather than victim filing complaint)

▪ Follows investigation, rather than triggering it

▪ Typically filed by investigation officer

o Incident report to DA’s office

o Initial Appearance (to Magistrate usually w/in 8 hours)

▪ In theory should be taken directly to magistrate, but not in reality. When police have completed investigative work then go to magistrate

o Preliminary hearing usually waived and D released on bail

▪ Usually doesn’t occur for 2 or 3 weeks after arrest and either release or detainment

▪ Usually waived because D doesn’t want to spend all his time on preliminaries

o DA automatically charges maximum crime possible

▪ Doesn’t study case

▪ Charges high because you can convict down and get guilty plea

o Defense counsel receives fee up front (so no real incentive to go into longer trial?)

o Automatic not guilty please

o Nothing happens…no investigation…time just passes

o Week before trial, defense attorney contacts DA and asks for deal

▪ In return for guilty please, prosecutor can:

• Drop other charges

• Agree to recommend or not oppose D’s request for a certain sentence or range (does not bind court)

• Agree that certain sentence or sentencing range is appropriate disposition of case, or that particular provision of Sentencing Guidelines or sentencing factor does not apply (does bind court once it accepts plea)

▪ Policy: plea bargaining answer sheds light on how parties benefit from pre-trial delay

• State because D set up to plead

• D counsel because supposed to be doing the best you can, more time implies that attorney is doing his best job

o Plea accepted (no trial)

o Sentencing:

▪ Parole: if you violate parole and commit a crime you will have back-up time left that is tacked onto a new prison sentence

Discovery

- Testimony of witnesses and their names are the main things not subject to disclosure

o However, generally D is aware who the people will be

- LW: Prosecutors should turn over entire file and make D’s attorney initial every sheet so D can’t later claim that he didn’t receive documents/evidence

- Discovery is only useful if case goes to trial

- However, discovery can serve purpose of swaying D towards accepting a plea if the evidence against him is strong

o Therefore, discovery is less meaningful because so few cases go to trial now

- Motions made in discovery:

o Unlawfully collected evidence

o Motions that have to do with the structure of the trial

Constitutional Protections

- Amendment 4: no unreasonable search and seizure, no warrants except on probable cause

- Amendment 5: right to grand jury if capital crime, no double jeopardy, no witness against yourself, due process of the law

- Amendment 6: right to speedy and public trial, impartial jury, informed of nature and cause of accusation, confront witnesses, right to counsel

- Amendment 7: no excessive bail, fines, or cruel and unusual punishment

- Amendment 14: due process and equal protections of the law

Initial appearance

Appointment of counsel

Bail

Preliminary Examination

The decision to prosecute

Indictment

Discovery

Right to a speedy trial

Plea-bargaining: guilty please

Trial

Sentence

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