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Basic Elements of Criminality Introduction to the criminal processCriminal complaint and investigation Police/state make the decision to go forward Arrest Miranda rights If suspect is at home, need warrant BailOnce arrested, 2 things have to happen Be arraigned Grand jury or preliminary hearing Indictment and preliminary hearings (depending on the state) Preliminary hearings Public, adversarial proceedings between a prosecutor and defense attorney To the judge Grand jury proceedings Non-adversarial, involve only a prosecutor presenting their side of the case to a grand jury in a closed-door confidential proceedingTrial Innocent until proven guilty Trial begins with voir dire – the selection of the juryJury instructions Explain to the jury what are the factual findings they have to make in order to find a particular crime (how to interpret criminal statutes/what constitutes a particular element of the particular crime/can challenge judges jury instructions on appeal) Sentencing Jury determines guilt, judge decides sentencing Appeal A conviction may be based on circumstantial evidence alone if the circumstances are such that they are inconsistent with any reasonable hypothesis of innocence Direct evidence: Something that is derived from own senses – has to be proven beyond a reasonable doubtCircumstantial Evidence: Inferred evidence (take the evidence you see with your own senses and make a conclusion) – higher standard beyond a reasonable doubt Burden of Production: one sides obligation to introduce sufficient evidence to make an issue a triable issue of fact (Prosecutor must show there is a case) Burden of persuasion: ones sides obligation to introduce enough evidence to satisfy the fact finders according to the relevant standard to proof – have to show evidence is more persuasive than the other sides beyond a reasonable doubt Jury Nullification Jury can do what it wants and can always refuse to return a guilty verdict, even in cases where evidence of guilt is sufficient to meet the legal standard of proof Court does not like jury nullification Legal system values predictable outcomes (limited by jury nullification) Sometimes adds a final check to make sure there is a good result Common law crimes: murder, mayhem, rape, robbery, larceny, battery, burglary, buggery First thing to do in Criminal law: 1. look at the statute2. extract the elements Common law felonies: murder, mayhem, burglary, rape, robbery, arson, buggery General rule: medical malpractice is not an intervening cause Reading a criminal statute Material elements (Each must be proven beyond a reasonable doubt) Conduct (actus reus) Concentrate on the verb Mental state (mens rea) Purposefully: you want it and you know what will happen Knowingly: you know it Recklessness: consciously disregard a substantial and unjustified risk Negligent: disregard something Causation The link between the D conduct and the result Results Attendant circumstances: a condition in the world that is required for the crimeCanons of interpretation intentionalism: judges determine the intent of the legislature when it passed the statute Purposvism: purposive approach to criminal statutes/what is the overall purpose Textualists: emphasis on the ordinary meaning of the words Conduct v. Result Crime ConductSimply physical movement – voluntary action Ie. Possession Just have to do the act and then done Just have the conduct Result Has to have a result in the world Have to have both the conduct and the result Tend to present more problems from the mental state perspective MPC 2.02(1-5). General Requirements of Culpability (866-67) (1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.(have to act with at least one of them, as the law may require) (2) Kinds of Culpability Defined.(a) Purposely. A person acts purposely with respect to a material element of an offense when:(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.(b) Knowingly. A person acts knowingly with respect to a material element of an offense when:(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.(c) Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.(d) Negligently. A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto. i.e. the crime is: it shall be prohibited to cause death --> blue wand of doom (knowing it was a blue wand of doom) Mental state towards every element of the crime: nothing was stated (3) would apply as the mental state was not stated in the crime "it shall be prohibited to cause death" IF A MENTAL STATE IN MPC IS NOT STATED, USE THIS (4) Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.If there is something defining one of the elements, then it applies to all of them, unless a contrary purpose appears (5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely. Substitution rulesPunishment Standard accounts of punishment fall into two basic categories Utilitarian: forward looking, punishment as positive consequence to society, either though deterrence, incapacitation of the offender or rehabilitation of the offender Deontology: Retributivism: backwards looking, holds that the D should be punished because they should receive their just defers the punishment must fit the crime Deterrence: would be criminals will be dissuaded from misbehaviour because they fear punishment General: Goal of punishment is to deter others from committing that crime Specific: goal is to deter that offender from doing something bad again in the future Incapacitation: if a criminal is incapacitated, he cannot harm others Rehabilitation: the offender is returned as a functioning member of society (healing, go to prison and become a new man) For punishments, judges determine based on mitigating circumstances whether the punishment under consideration will act as a sufficient deterrent Under 18 U.S.C. § 3553, a sentencing judge should consider various factors, including (1) the nature of the crime and the characteristics of the individual defendant; (2) proportionality of the gravity of the offense and the punishment; (3) whether the punishment will effectively deter both the defendant and the general public from committing the offense in the future; (4) the need to protect the public from the defendant’s potential future crimes; and(5) effective educational, vocational, or medical rehabilitation of the defendant. These factors represent the four main goals of sentencing and punishment: retribution, deterrence, incapacitation, and rehabilitation.Proportionality: basic principle of criminal justice that offenders should receive punishment that is proportional to their wrongdoing Retributivism: deterrence is not the only consideration when determining an appropriate sentence for a convicted criminal – in some cases the judge determines the quantum of punishment by evaluating how much punishment the D deserves Sometimes in punishing, symbolism for the victims can be important Only a just government has the political legitimacy to make fundamental decisions to violate a person’s liberty (by putting them in jail) Conditions of supervised release, including those that cause shame or embarrassment, imposed upon offenders by a district court do not violate the Sentencing Reform Act if they are reasonably related to the statutory purposes of deterrence, protection of the public, and the legitimate purpose of rehabilitationConsecutive v. concurrent crimes In many cases, the judge has the discretion to select between the 2 options Fundamental principles of criminal law Individuals need “fair notice” – the ability to conform their behavior to the requirements of the law, there must be notice of criminal laws Basic moral principles reflected in numerous ways Statutes Retroactivity (constitutional ex post facto) Retroactive decisions can still happen if the court decides to interpret a statute a new way – the language of the law hasn’t changed, but the way the court applies it can Retroactive application by the judiciary of a change in the common law of crimes does not violate either the Ex Post Facto or Due Process Clause unless the application is “unexpected and indefensible.”Common law antecedents Has to have its basis from common law A court can look to the common law meaning of statutory terms to determine congressional intent Vagueness (constitutional principle) Statutes have to be understood by a layman Courts don’t want the law to be unpredictable Need to easily understand what the meaning is A law may be unconstitutionally vague for 2 reasons It may fail to provide the kind of notice that will allow an ordinary person to understand what conduct is prohibited Reasonable person could not conform because they don’t know It may authorize arbitrary enforcement Gives too much discretion to cops Rule of lenity (rule of statutory construction) If a court believes that a genuine ambiguity still persists and the statute has multiple meanings, rule of lenity says it should be read in the light most favorable to the D Deterrence: punish them so others won’t do it Retribution: spank them (punishment should fit the crime) Expressivism: oh no, so bad Act requirement MPC 2.01 Requirement of Voluntary Act, Omission as basis of liability, possession as act Need willed bodily movement Act: voluntary bodily movement Conduct: an act or omission A conviction can be based on an omission only when the D has a legal duty to actA duty can be established by Statute Relationship between D and victim Contract Voluntary assumption of care Creation of risk Bystanders, unless in one of the categories above, no legal duty to actState of unconsciousness self-inducted –responsible for own lack of violation Unconscious: sleepwalking, hypnosis, seizures = not responsible The omission strategy In every case, the prosecution must establish a voluntary act or an omission in violation of a pre-existing duty to act A prosecutor can use the omission doctrine to his advantage when it can’t be proven who committed the blameworthy act Even if strict liability crime, still needs to be done consciously Accomplice liability / Omission liability Might not have directly done the crime, but they were involved -- obligation for humans to at least do something Moral justification for not acting -- individual autonomy -- the right of people to control their own actions Mental states An act is only criminal is it is performed in accordance with a culpable mental state – “no crime without culpability” Mens rea v. motive Mens rea: the particular mental state that accompanied the D action Motive: the why MPCPurposefully MPC an actor acts purposefully: 2.02(2)(1) If the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and If the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist Desire to produce a certain outcomeConscious object The D desires to commit the act or produce the result What they want to happen, the result that they want Knowingly MPC states that an actor is acting knowingly: 2.02(2)(b) If the element involves the nature of his conduct or the attendant circumstance, he is aware that his conduct is of that nature or that such circumstances exists; and If the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result Practically certain awareness that a result is practically certain to occur or awareness of a circumstance elementRecklessly consciously disregards a substantial and unjustifiable risk MPC: "the risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation. Negligently What he should have been aware of and his failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation Objectively reasonable standard of care Strict liability Mens rea is not considered Most often found in regulatory offenses, with minor penalties, that have a public welfare rationale Can be controversial since the D awareness of the situation is irrelevant to the criminal case Justifications: deterrence (general), retributionIntentional requirement generally read into statutes to avoid them being strict liability Malice: acting with “wicked” motive or with an “evil” intent Express malice: involved the commission of a crime, with the deliberate intention to bring the victims death Implied malice: the D indifference to a particular result brought about by a level of carelessness or inattention so severe that it demonstrated the D malice Young v. State in order to get the precise meaning, go to case law Gaylord: actual malice/malice in fact Requires proof of evil intent or motive, looks into the mens rea, higher standard Statute: Legal malice May be inferred from ones acts and does not require proof of evil intent or motive, does not need justification. As a general rule, federal statutes infer an intent requirement even if not mentioned in the statute General intent Intend physical movement constituting actus reas One action and one intention that goes with it. i.e. murder, assault Specific intent Intend to do movement and + Requires an additional mental state – intend the present act, intention to do the action in the future and awareness of the attendant circumstances Special motivation or purpose Ie. Larceny (trespassory taking with the intent to permanently deprive the possessor of the object). General intent ?Specific intent Only have to intend the act, not the resulti.e. assault, breaking and entering Intend the act AND something else (either a special motive, i.e. intent to assault to cause emotional stress; further intention, i.e possession of drugs with intend to distribute; or awareness of some sort of attendant circumstance or special purpose) Doctrine of transferred intent: intent follows the bullet “willful blindness” Deliberate ignorance = positive knowledge Finding of willful blindness requires that: The defendant must subjectively believe there is a high probability that a fact exists and The D must take deliberate actions to avoid learning of that factMPC § 2.02(7) states “when knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.”“Knowingly” includes positive knowledge as well as a defendant’s awareness of the high probability of an illegal act but purposely fails to investigate the presence of the illegal act in order to remain ignorant.????????Knowledge doesn’t mean you actually have to use your senses to find, but that you are aware of a high probability that it exists Reckless v. negligent The awareness of the risk Reckless: consciously disregard of a substantial and unjustifiable risk Negligent: not aware of the risk, but should have been Accomplice liability – someone who helps out with a crime with the intention of helping MPC Real life equivalence chart Purposefully Knowingly Intentional, malice, willful, consciously, voluntary, knowingly, purpose, Scientur, Aforethought Recklessly Gross negligence (sort of) Negligently Negligence Mistakes [know the elemental and common law tests]Elemental approach: Look to the statute, what is required, under the D mistaken belief, did he satisfy this element Mistake of fact Elemental Approach: Committed the conduct and possibly the conduct lead to the correct result under the statute, but you failed to do it under the requisite mens rea MPC: mistake of fact is a defense if and only if it negates the required mental element of the offense Common law Specific intent crime (common law)Willful/honest mistake is a defense General intent crime (common law) A reasonable mistake is a defense Moral wrong doctrine: The D is not able to assert mistake of fact if what he subjectively believed he was doing amounted to something immoral guilty of a crime if what you thought you did was also bad Legal wrong doctrine: D not permitted to argue mistake of fact is what they subjectively believed they were doing still amounted to committing some lesser crime Legal Wrong doctrine MPC 2.04 Guilty of the one you actually commitGuilty of the crime you thought you did Mistake of law Didn’t know it was unlawful when you committed the act Old common law: ignorance of the law was no excuse Legal wrong rule: if you make a mistake and meet the requirements under it, and commit another crime, you are guilty of the crime you actually commitIllegal tax forms, structuring Willfully in this context means that they knew their conduct was against the law Exceptions: When knowledge of the law is an element of the crime When it’s part of the attendant circumstance Ie. Kidnaping and unlawful arrest Willfulness Structuring, filing a false tax return (if honest mistake) Use the word willful "intentionally filing a false tax return" -- innocent mistakes Knowledge of a known legal suty is an element fof the crime: has to be sincere When ignorance of the law is truly a defense MPC 2.04(3) -- relied on a statement of the law and then it changed To assess the relevance of a mistake at law, need to first examine the mental requirements for the offense. Structure analysis as follows Determine the elements of the offense, including conduct, mens rea, and any attendant circumstances Determine whether one of the attendant circumstances includes a legal status Determine the range of the mental requirement: which elements of the offense does it apply to? More specifically, determine whether the mens rea requires knowledge of the legal status referred to in the offense (which is rare) If yes, ask whether the Ds mistake negates the required mens rea Burglary is typically defined as "breaking in entering a dwelling place at night with the intent to commit a felony therein." ?You break into a house intending to commit larceny, a felony, therein. ?You are in a state that does not follow the MPC. ?You honestly think it is day, but don't bother to look at your watch. ?It is in fact 7.01 and sunset was 7.00. ?Are you guilty of burglary?THIS QUESTION HAS BEEN ON FINALS ABOUT 9 TIMES Answer: no, if the court rules that intention is the mental state that attached to "at night" ?State does not follow MPC: common law or will have a statute Causation Follows the same 2-step process from tort law If there is any causal connection (“but for” cause/cause in fact/actual cause) Whether the causal connection is sufficiently close to hold the D responsible for the resulting harm (proximate cause/legal cause)Cause in fact But for causation test: but for the D actions, would the result have occurred? Substantial factor: were the D actions a substantial factor in bringing about the harm? In a homicide case, if there is a failure of proof of causation, then in most cases, the D will be guilty of a lesser-included offense such as aggravated battery, which does not require that the D caused the death of the victimLesser included offense It’s the crime without all the elements needed for another lesser crime i.e. assault with intent to inflict severe bodily injury No intent to inflict severe bodily injury is still just assault But for Causation ?Cause 1 would kill independently but cause 2 accelerates time of death Causes 1 and 2 would only kill jointly Cause 1 kills and cause 2 was non-lethal but accelerating Cause 1 kills and cause 2 was non-lethal but non-accelerating **Cause 1 &2 kill independently at same time: no accelerating ***Cause one Yes Yes Yes Yes No Cause two Yes Yes Yes No No ** generally doesn’t come up *** but for cause kinda collapses here Leads to the substantial factor testWere the D’s actions were a substantial factor of bringing about the harm? Proximate cause: Common law: 1 year 1 day Modern: If the result was reasonably foreseeable, the D’s actions are a proximate cause Normal/abnormal (reasonable foreseeability) Intervening cause If the coincidence was abnormal -- breaks the causal chain Response/coincidental Was it a response or coincidence? Was the coincidence abnormal? -- ie. Lightening Response or coincidence Response Foreseeable? Proximate cause Not foreseeable? No proximate cause Coincidence Abnormal? If yes, no PC Not abnormal If yes, PCCausation is only an issue for RESULT crimes Apparent safety doctrineWhen the person was safe, but re-enter a situation of danger, it breaks the causal chain General intent ?Specific intent Only have to intend the act, not the resulti.e. assault, breaking and entering Intend the act AND something else (either a special motive, i.e. intent to assault to cause emotional stress; further intention, i.e possession of drugs with intend to distribute; or awareness of some sort of attendant circumstance or special purpose) Offenses Intentional murderCommon law murder: required the killing of another human being with malice aforethought Express malice: intentional killing, an unlawful killing in which the actor desired the death of the victim Implied malice: reckless killing that demonstrated a depraved indifference to human life Depraved heart killing Felony murder MPC §210.12 intentional murder Killing performed purposefully or knowingly and makes no attempt to distinguish between more or less blameworthy types of intentional murderMurder: causing the death of another human being with the intent to kill that person First degree or aggravated murder: First degree murder cases of premeditation and deliberation Willful, deliberate, and premeditated Special circumstances: Killing a police officer, killing of a witness in a trial, torture, terrorism, killing performed while incarcerated for a life term, etc.Many jurisdictions require that the defendant engaged in both premeditation and deliberation Means both prior planning and consideration of whether to commit the crime, mental elements that are often closely intertwined in actual casesPremeditation means to have thought over the matter beforehand for any length of time – can be instant (depending on jurisdiction) Proving premeditation – submit facts and ask jury to infer a mental state Voluntary manslaughter Under the influence of extreme mental or emotional disturbance for which there is a reasonable excuse Killing performed with provocation, extreme emotional disturbance, intentional (but the special kind of intentional homicide) RequirementsAdequate provocation Killing in the heat of passion Performed suddenly before reasonable opportunity for passions to cool Causal connection between provocation, passion, and killing Common law: Heat of passion standard, provocation must fall within one of the recognized standards: (254) Extreme assault on the D; Mutual combat; Illegal arrest of the D; Injury or serious abuse of close relative (or friend); Sudden discovery of spousal adultery Extreme emotional disturbanceMPC §210.3 downgrades a killing to manslaughter when "committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse" Functional standard designed to catch any circumstance that produces the mental disruptionExtreme emotional disturbance standard will apply when there is no reasonable explanation or excuse The reasonableness of the explanation or excuse will be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be Interpreted the standard subjectively A mini insanity defense: MPC EED was also designed to allow jurisdictions to consider mental problems that fall short of qualifying for full insanity defense Words can be adequate provocation only if there is a reasonable fear of being physically hurt A person acts under the influence of extreme emotional distress when he is exposed to extremely unusually and overwhelming stress that would cause the average reasonable person under the same circumstances to experience a loss of self-control and be overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotionVoluntary manslaughter Traditional common law categories Generalized common law categories MPC 210Intentional homicide (but the special kind of intentional homicide) Extreme assault Adequate provocation (words in general are not enough) EMED with "reasonable explanation or excuse" ?Mutual combat (a dual, people agree to engage in) Killing in the heat of passion ??Illegal arrestNo cooling off period ??Injury/a serious abuse of relative or friend Causal connection (provocation, passion, killing) ??In flagrante (coming upon a spouse banging someone else) ??Reckless killings Reckless killings fall into 2 categories: Murder Involuntary manslaughter Applies when the D engages in conduct that constitutes a substantial and unjustifiable risk that results in someone’s death Common law: reckless/negligence MPC: reckless under 2.02(2) Gross deviation from a standard of conduct that consciously disregards a substantial and unjustifiable riskHand formula from Torts: taking the precaution outweighs the risk Implied malice and extreme indifference murder Implied malice means the D is aware of the risk to others through their actions Implied malice murder if the depravity evinced by the D was especially severe or evidence of an abandoned and malignant heart Implied malice – Murder higher standard of negligence under abandoned malignant heart, disregard for human life (not just bodily harm) Case example: dog attack have to be aware of death of another being a possibility, not just serious injury Extreme indifference murder: extreme indifference to the value of human lifeCase example: mother smothering kids for disability benefits High risk of death Depraved heart – depraved indifference to human life Misdemeanor Manslaughter Misdemeanor + homicide (unlawful killing) [+foreseeability/proximate cause (in some jurisdictions)]permits a conviction for involuntary manslaughter if the D commits an underlying misdemeanor that results in death needs to be foreseeable (in some jurisdictions) The required mental state is the means rea for the underlying misdemeanor D recklessness is presumed by statute on account of the D commission f the underlying misdemeanor Could the misdemeanor foreseeably lead to a deadly result Case example: fireworks at Great White concert, 100+ dead A person is guilty of misdemeanor manslaughter only if his underlying illegal conduct is a proximate cause of death.???Malum Prohibitum Conduct is unlawful by statute (i.e. 10 miles over speed limit) – more regulatory thing Malum Per Se ?????Conduct is wrong or evil within itself (i.e. murder) – morally wrong Felony murder Triggering Felony + Homicide (resulting killing) = Felony murder Limitations Independent felony rule – merger limitation To prevent situations where certain crimes that shouldn’t be treated as a first-degree murder Needs to have an independent felonious purpose Felony cannot “merge” into the resulting killing Triggering felony + resulting killing = felony murder If the underlying felony is assaultive in nature, merges with homicide and cannot be the basis for felony murderInherently dangerous Felony must be inherently dangerous to human life Some jurisdictions hold that felony murder only applies when the underlying felony is inherently dangerous Abstract: look to the definition of the statute Factual: look to the facts of the case and D behaviour In furtherance/res gestae The killing cannot be too remote from the triggering felony Res Gestae limitation: The killing must be performed in furtherance of or in the perpetration of the felony Tests to distinguish between in furtherance unlawful killings and those that are not – jurisdictions go both ways on which approach to use Proximate cause approach: the victim’s death was set in motion because of the D behaviour need “but for” causation and proximate cause (time/space/foreseeability) Agency approach: who performs the physical act of killing the victim – was the person who committed the murder an agent of the felon (you or one of your cohorts did the murder) Under the felony murder rule, the D is guilty of murder simply because he committed a triggering felony that resulted in deathOld common law: felony = death anyways Today, courts don’t really like, adopt the elemental approach, the punishment must fit the crime Enumerated felony murder: the felonies listed in the statute Unenumerated felony murder: felonies not listed in the statutes MPC: defines a criminal homicide as a murder when: MPC 210.2(1) defines a criminal homicide as a murder when: Is it committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape If you commit these crimes, extreme indifference for murder committed recklessly Treats more like depraved heart Negligent homicide Requires only negligence – no state of awareness is required, D is punished for carelessness Negligence requires a deviation from the standard of care that a reasonably prudent person would follow under the circumstances Jurisdictions differ on type of negligence necessary Ordinary negligence (civil negligence) It takes a fact finder to assess whether a particular individual’s deviation from the standard of care is sufficiently negligent to generate a conviction for negligent homicide Most jurisdictions: substantial and unjustifiable risk Some also require that the D engage in actions that are naturally and inherently dangerous to life in order to be convicted of negligent homicide The cost of avoiding the harm compared to the cost of the injury Gross negligence (criminal negligence) Heightened standard D’s behavior must represent a gross deviation from the standard of care that is reasonably prudent person would observe under the circumstance Elevated standard of gross negligence is satisfied by the heightened degree of departure from standard of care – the level of risk Negligence on steroids Elevated standard of gross negligence is satisfied by heightened degree of departure from standard of care (i.e. level of risk) and does not require D to be aware of the nature of the risk and consciously disregard it D found grossly negligent were often found guilty of involuntary manslaughter and placed in the same category as D who acted recklessly, and can be the basis for involuntary manslaughter in some jurisdictions If negligence created the emergency, then D is responsible If D responded to the emergency, then reasonableness is a lower bar Most negligent homicide cases use torts justifications Rape Much reform in this area Rape is usually defined by statute as non-consensual sexual intercourse completed by force or threat of force, although some jurisdictions have either eliminated the force requirement or substantially redefined it Aggravated rape: triggers heightened penalties, applies when rape is committed during another violent offense, such as assault with a deadly weapon or armed robbery Common law: sexual intercourse against one’s will or consent – needed to actually physically fight back (resistance) Resistance just needs to be reasonable under the circumstances – doesn’t have to be physical resistance as lack of consent Modern rape standard Force or threat of force in most jurisdictions How much force? Force that overcomes physical resistance//force that accomplished the act over verbal and other forms of non-consent Jurisdictions are split on whether force must be extrinsic or intrinsic to the sexual act Intrinsic force: the actual force of rape (the act itself is enough)Extrinsic force: force in addition to the actual force of rape (something beyond the mere act) Threat of force: Must have reasonable fear or apprehensions of force regarding victim’s safetyNon-physical threats generally do not count but may otherwise be criminal or illegal Reasonable apprehension usually requires an objective/subjective standard MPC 231.1 the crime of rape is limited to threats of imminent death, serious bodily injury, extreme pain or kidnapping Gross sexual imposition 231.1(2) --> sexual intercourse by a perpetrator who compels the victim to submit by any threat that would prevent resistance by a woman of ordinary resolution Consent: Jurisdictions are split on if the victim did not consent or that the perpetrator knew the act was non-consensual Lack of consent is key for rape convictionCommon law: no abandoned, the victim lack of consent required her to resist to her upmost if there was evidence of resistance, there was no consent Communicative act // state of mindLack of consent is an attendant circumstance Victims are incapable of consenting in certain situations (i.e. sleeping) Consent procured prior to the sexual act is not valid if the victim is not conscious during the act itself Rape by fraud: Fraud in the factum: involves a lie about the nature of the act itself i.e. Doctor physical examination with penis victim is not aware of the nature of the act Fraud in the inducement: D lies about something to convince the victim to have sex Telling a lie to get someone in bed – typically not considered rape Statutory rape and lack of capacity Victim is legally incapable of consenting to sex Young age: statutory rape Victim incapacitation from drugs/alcohol/mental defect associated with mental disease or illness Specific professional relationships: complex power dynamics and very unequal which prevent formation of true consent between partners Romeo and Juliet statutes – make exceptions for minors under the legal age to have sex with each other (age differs across states) Alcohol and sex: generally speaking, voluntary intoxication is only a defense if it negates the requires mens rea for the offense Other Offenses Against the Person MPC eliminated the historic distinction between battery and assault – now assault is a physical contact//attempted physical contact//causing reasonable apprehension of bodily injury Physical battery Three major elements: The act Mental state requirements Result element To be convicted, D must (a) engage in an unlawful application of physical force (b) resulting in either a physical (bodily) injury or an offensive touching (c) acting with purpose, knowledge, or recklessness (or negligence under a few statutes) to cause the prohibited result Unlawful touching Really anything that is not consented to Battery against a cop = aggregated battery Subjective v. objective standard D having to knowingly/purposefully have conduct which causes fear The behavior has to be such a way that a reasonable person would be in fear Have to be aware of your behavior Assault: Attempted battery: the act and mental state requirement remain the same as physical battery Assault conviction: placing the victim in reasonable apprehension of bodily harm // mental state the intent to cause apprehension Merged in statutes with battery Kidnapping Confinement of the victim or the restriction of the victim’s movement (a) confining or carrying away the victim; (b) forcibly or by threat or fear or deception; (c) for a nefarious purpose Carrying away: Asportation (can be very slight) Mental state: usually intent or purpose 4-part test The duration of the movement Whether the movement occurred during the commission of a separate offense Whether such movement was an inherent part of that separate offense Whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense Theft Common law: larceny, larceny by trick, embezzlement Modern approach: put them together Three basic parts of all Unlawful taking (needs the perpetrator to gain possession or control of the property, effectively severing the property from the owner’s possession, even if only for a moment) The property of another With intent to deprive (makes this a specific intent crime) Everything is a variation off that Common law: carrying away required some movement of the property, but not necessarily the successful removal If the taking is completed through less physical means, such as deception or coercion, the theft is classified as fraud or extortion Common law: 2 types of fraud (Larceny by trick and theft by false pretenses) Larceny Trespassory taking and aspiration of another’s property with the intent to deprive Mental element: intent to permanently deprive Employees, have custody over the object, if they take it though, it’s still larceny Larceny by Trick Involves the use of fraud to unlawfully gain possession over the item Tricking people into giving you things Perpetrator convinces the owner to convey the property through deceptionGetting the physical property by a trick with the intention at the time of getting possession to keep forever Theft by False Pretenses Requires the actor receive actual title to the property through fraud/lieThe offense of false pretenses bidders from larceny because in false pretenses the owner intends to transfer title to the property, while in larceny, the owner does not Perpetrator convinces the owner to convey the property through deceptionIn the eyes of the person you are taking it from, you have a legal right Theft by Deception MPC consolidates theft by false pretenses and larceny by trickCovers all situations where the actor obtains property of another by deception, such as creating or re-enforcing a false impression as to law, value, intention, or other states of mind Embezzlement Involves an actor’s lawful possession of another’s personal property, which is then converted to appropriate by the factor with the intent to permanently deprive the owner of the property The victim has given the perpetrator access to the property for one purpose, but the perpetrator converts it for his own use Key element is that the victim consents to the transfer of the property to the actor for a particular use, but that condition is violated by the actor Focuses on an abuse of trust: the actor received possession of the item for one purpose but converted it for personal use Extortion Statutes prohibit obtaining possession of something by threat or fear, such as threatening to expose a secret or by accusing the victim of a crime The perpetrator conceives the owner to convey the property in exchange for the perpetrator promising not to engage in some unlawful act Unlawful taking by threat Legally distinct from larceny, false pretenses and embezzlement because the actor does not use trespass, fraud or conversion to deprive the owner of the property Obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official light Blackmail Perpetrator coerces the victim into giving up X by threatening to perform a lawful act Unlawful taking by exposing true things MPC combined blackmail and extortion Robbery: Involves the use of physical force to accomplice a theft Larceny + application of force The taking of property in the presence of the victim and that it be accomplished with force that is greater than the force required to achieve the taking Has to be immediate force Employees have custody, when they take something for their own, its larceny Independent contractor: given complete control over the item (i.e. bringing in a Ming vase to someone to repair it) – embezzlement Attempt Requirements for a punishable attempt are that (i) the D has the specific intent or purpose to bring about the crime and that (ii) he takes sufficient steps towards committing the crime to satisfy the jurisdictions actus reas test. Then two defenses might apply if (iii) the crime is impossible to complete, or (iv) the D abandoned the effort MPC: required mental state consistent with that of the crime Need the substantial step! Minority rule: slightest act is sufficient attempt Inchoate: (baby crime) crimes that haven’t yet developed, but still can be punished the same as the full crime even if they were not complete MPC punishes equally // most state statutes have a lower punishmentCan be incomplete or complete attempt Specific intent or purpose Specific intent because the D must intend to engage in the conduct and also must intent to bring about the crime Needs substantial step towards the crime with the right mental state MPC: requires that the D purposefully engages in conduct that would constitute the crime and when causing a result is an element of the crime, also acts with the purpose to bring about the result (only applies to the conduct) Gentry rule: need to have specific intent Strict liability: For conduct crime: yes For result crime: there is no result so there cannot be attempt Distinguishing attempt from mere preparation Slight acts test Allows liability if the design of a person to commit the crime is clearly shown an actor commits even “slight acts” in furtherance of that design Physical proximity test Where the D must be close in time and space to the final act that completes the crime Dangerous proximity test Whether the D was dangerously close to consummating the offense Proximity as a causal concept, not necessarily geographic i.e. dangerously close to pulling the trigger or pushing the button on the bomb Unequivocality test Ask whether the D conduct unequivocally demonstrates the D intent to commit the crime Actus reus requirement that loops back and refers the mental element Look to the soul: was he really about to do this or not?The probable desistance test Requires that the D conduct would result in the completed crime “in the ordinary and natural course of events” if the actor had not been interrupted by a third party (such as the police) MPC substantial step test Requires that the D engage in a “substantial step in a course of conduct planned to culminate in his commission of the crime” ImpossibilityActually look at the act that was intended and see if it is criminal or not Factual impossibility: occurs when the object of the D is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing that objective Not a defense Focus on the D subjective belief Legal impossibility Pure legal impossibility: covers rather trivial circumstances where the D engages in conduct that he thinks is illegal but is not Hybrid legal impossibility: Exists if D goal was illegal but commission of the offense was impossible due to a factual mistake by her regarding the legal status of some factor relevant to her conduct D’s impossibility claim includes both a legal and factual aspect to it If the impossibility has to do with a factual matter with legal consequences, then its treated as legal impossibility and it is a defense MPC: actor is guilty of attempt if he purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believed them to be Abandonment: must be truly voluntary Has to abandon before committing the act Allows for the retroactive cancelling of the actMust be their own decision Attempt of crimes of recklessness/negligence Nah, doesn’t work, there is no intent to bring about the results Minority rule: if you are acting with the culpability that is required (recklessness) and taking a substantial step towards committing that crime, you have attempted that crime MPC: if you perform the act that constitute the attempt with the mental state that is required for the crime (i.e. attempted involuntary manslaughter taking a substantial step with a recklessness mind) Act in MPC: voluntary body movement (and possibly a result in the world)Inchoate Conspiracy Conspiracy: Agreement between 2+ individuals to commit an unlawful act Inchoate in nature Elements of the offense: Agreement to commit an unlawful act Agreement with a criminal purpose, does not need to be a K Specific intent purpose to achieve the goal or object of the conspiracy, and Overt act in furtherance of the conspiracy Does not have to be muchIn some situations, threatening speech can be an overt act Some jurisdictions allow conspiracy without an overt act Bilateral v. unilateral? Look to the statute Did both members of the agreement understand that they agreed, or does it just need to be one of them? Renunciation: D must fully renounce the conspiracy by thwarting the conspiracy under circumstances manifesting a complete and voluntary renunciation of his criminal purpose i.e. contacting the police must admit to being part of the conspiracy generally, not allowed in all jurisdictions – you already made the agreement merger: does not merge with the completed act liability for conspiracy does not disappear once the conspiracy is successfully completed. Recklessness: cannot conspire to do something reckless MPC: act with the appropriate mental state for the underlying crime, then can be liable for conspiracy If you are guilty of bilateral, you are also guilty of unilateral conspiracy General presumption when reading statutory interpretations read in intent if it is silent Statutory interpretations what the court included/not included within the statute looking to other statutes for what is included and not Solicitation attempted conspiracy: someone asking to commit a crime (gets rid of the bilateral conspiracy issue) must have communication both an inchoate offense and a mode of liability Elements Specific intent or purpose To solicit (hire, command, request, invite, encourage) A third party to perform a crime Requires no overt act Merger: Solicitation merges into the complete offense Renunciation:Must be complete and voluntary MPC: allows the defense if the D persuades of prevents the solictee from carrying out the crime Solicitation is characterized by an attempt to persuade another to commit a crime, while conspiracy involves an agreement between individuals to commit a crime. Because solicitation focuses on the perpetrator’s actions in attempting to persuade or command something of another, the solicitation statute is more reasonably grounded in the unilateral theory, which requires actual agreement by only one party.Modes of Liability Accomplices Accomplice liability: punishing people for the acts of others Actus reas: must be providing assistance or support Most jurisdictions do not require a causal relationship between the assistance and the commission of the crimeNatural and probable consequence test. General rule: we intend out actions and the natural and probable consequences of the actions Accomplice has put his lot in with the principal and so bears the burden that the criminal transaction might turn out differently than originally anticipated Objective v. subjective Most courts have considered the issue adopted an objective approach to reasonable foreseeability Community of interests analysis All have an interest here, can be an accomplice to a reckless crime as there was a community interest Common law: Perpetrators were divided into 2 large categories Principals: 1st degree: the actual person who did it 2nd degree: assisting Accessories Before the fact: someone who helps out/hypes before, but isn’t present after the crime After the fact: the person who helps after the crime Law requires: Assistance or support to the principal perpetrator Performed with the purpose or knowledge to facilitate the crime Assistance does not require a strong causal connection between the accomplice’s assistance and the crime committed by the principal perpetrator Purpose v. knowledge Federal courts: purpose standard specific intent A person is liable for aiding and abetting a crime if the person takes affirmative act in furtherance of that crime, with the intent of facilitating the crime’s commission. Generally, there has to be a purpose there, you want to help someone commit the crime – you want the result, not just that you know it will happen State courts are split MPC: supports purpose standard needs the required mental state A person if an accomplice of another person in the commission of an offence if they do it with the purpose of promoting or facilitating the commission of the offense Gun during another crime example: did they have advanced knowledge of the gun and go ahead with the crime anyways Innocent instrumentality rule General rule is that the perpetrator who performs the actus reus of the crime is the principal while the criminal who remains behind the scenes is a mere accomplice – the innocent instrumentality rule is the exception Instrumentality must remain non-culpable for the doctrine to apply Acting in concert, but blind tools, the person is guiltyu of the crime they commit i.e. putting a bomb in a child’s backpack, the person who put the bomb in is guilty, not the child one who effects a crime though the sue of an innocent or unwitting agent is a principal in the first degree Mere presence is not enough to aid and abet someone Defenses Common law: if the principal gets acquitted, do does the accomplice Statutes: abandoned the distinction between principal and accomplice Everyone is a principal Can convict an accomplice and not the principal MPC: treats accessories as principals Conspiracy liabilityPlain vanilla: crimes part of an agreement Pinkerton: shells of liability that come from an agreement Crimes committed by co-conspirer’s in furtherance/reasonably foreseeable compared to a separate crime Narrow: The D is responsible for the crimes perpetrated by co-conspirators that fall within the scope of the prior agreement Broad: The D is also responsible for crimes outside the scope of the agreement as long as they are reasonably foreseeable consequences of the conspiracy Dealt with the issue that conspiracy creates a potentially large liability as everyone is potentially responsible for the acts of conspirators in furtherance of the conspiracy MPC critique: Get punished for bad intention under the MPC Might not intend for the crimes to occur (have knowledge/purpose) D lower mental state In defense of Pinkerton Liability If you intended an action, you intend those that are reasonably foreseeable Be aware of intention Scope of the conspiracy If the distribution consists of an overlapping collection of smaller conspiracies, the D is only vicariously responsible for the crimes committed by the co-conspirators of his "local" conspiracy Vicarious liability depends on the scope of the conspiracy Test: is one person of the conspiracy reasonably aware of the other people They don’t have to know of the individual persons existence, just have to have reasonable belief that they exist Chain conspiracy: generally, each link in the chain is responsible for the subsequent link if there is reasonable belief that the other links exist Ie. Drug distribution/smuggling system Single conspiracy Hub and Spoke conspiracy: a single conspiracy cannot exist when 2+ people have no contact or transactions with each other, even though each person may transact with the same, single individual if you are not aware of the other people involved, not a large single conspiracy conspiracy expires when the conspiratorial objective is achieved Withdrawing from a conspiracy Acts already performed by co-conspirators cannot be disowned, but the link to future acts can be severed if the D successfully withdraws form the conspiracy Requirement of the D to perform an affirmative act to disavow or defeat the conspiracy Telling the cops Communicating withdrawal to co-conspirers Dissolving the underlying agreement that forms the basis of the conspiracyHave to take affirmative action – simply refraining from actively pursuing the objectives is not enough Under the?Pinkerton?doctrine, a coconspirator can be liable for another coconspirator’s crime that was a reasonably foreseeable consequence of the conspiracy, even if the crime was outside the scope of the originally intended agreement. In a typical?Pinkerton?case, each coconspirator is responsible for any crime committed by another coconspirator in the course of and in furtherance of the conspiracy, so long as the crime falls within the scope of the conspiracy and was a reasonably foreseeable consequence of the unlawful agreement.There is a substantial nexus between weapons and drug deals Under the Pinkerton Doctrine, a co-conspirator can be liable for another co-conspirator’s crime that was a reasonably foreseeable consequence of the conspiracy, even if the crime was outside the scope of the originally intended agreement Due process Constitutional limitations on criminal law (could be a question on the final) Vagueness standard: case where they didn’t know who was laundering due process limitations on relationships between conspirator and the subsequent crime substantial due process comes in dealing with basic notions of fairnessif someone doesn’t have notice, they cannot avoid committing the crime if you really don’t know that the conspirator/conspiracy is likely to avoid bad things, no way to avoid it counter: why are you entering into a conspiracy then…? Objective or subjective foreseeability Objective: majority rule The fact finder should ask whether the outcome was objectively foreseeable form the perspective of a reasonable person in a similar circumstance D doesn’t need to be aware of the risk – though he should have been because a reasonable person in a similar circumstance would have foreseen the results Subjective: minority rule The fact finder should ask whether the outcome was reasonably foreseeable to the D in the case The D must have been aware of the risk, yet consciously disregarded it and participated anyway – similar to recklessness Conspiracy and accomplice liability comparedConspiracy liability requires and underlying agreement Accomplice liability may involve an underlying agreement, but need not Both have limited and expansive versions Limited: The accomplice/co-conspirator is responsible when some else commits the target crime Expansive: The accomplice/conspirator is responsible when others stray form the target crime and commit a greater offense Merger Can you be guilty of both crimes? Do they merge? Solicitation ConspiracyAttemptThe real crime (committed) Solicitation XCannot be guilty of both crimes – conspiracy and solicitation merge Cannot be guilty of both crimes – attempt and solicitation mergeCannot be guilty of both crimes – the real crime and solicitation mergeConspiracy XXCan be guilty of both crimes – conspiracy and attempt do NOT merge can be guilty of both crimes – conspiracy and the real crime do NOT merge Attempt XXXCannot be guilty of both crimes. Attempt and the real crime merge Real Crime XXXXConspiracy is something different and distinct from the crime – doesn’t merge with anything Merger: generally, cannot be charged for the inchoate crime and the crime itself except for conspiracy Corporate Criminal Liability Responsibility for other people’s crimes within the corporation Similar to Pinkerton liability Infer liability to the whole entity Issues: Fairness Problems of proof Who are you punishing? The president should be aware of what is going on in his corporation Implied knowledge Punishment: most you can do is sanctions/fines/ail time for individual people/take the charter away Justifications and Excuses Self Defense Requirements: The defensive force must be necessary (could not have escaped/under no duty to escape) Response was proportionate to the intrusion that he faced (didn’t use deadly force to stop a punch) –reasonable Wasn’t the initial aggressor or the accelerator Acting in a Reasonable belief that there was an imminent threat of death or serious bodily injury Imminent threat Reasonable belief is not enough, threat has to be imminent Battered women’s syndrome MPC: rejects imminent threat Requires that the defensive force be immediately necessary You are allowed to push away the slow working poison Battered wife syndrome: not specific threat, but a long burning issue The MPC and immediate necessityImminence asks about the temporal relationship between the actor's defensive force and when the threatened harm will materializeImmediate necessity asks about the temporal relationship between the actor's defensive force and his last opportunity to avert the threatIn most cases, the standards yield identical results but sometimes they diverge, especially in cases of slowly developing threatsNecessity and duty to retreat: Defensive force must be necessary to stop the attack If you can do it without deadly force, you must Castle exception: no duty to retreat when the attacker is inside your home (must be the physical building of your home, outside property is not enough) Common law: had to retreat if there was a safe place available Duty to retreat states: have to retreat Stand your ground states: fire away Deadly force exception: cannot bring a gun to a fist fight Reasonable belief To qualify for self-defense, D must sincerely believe that he faces a threat of death or severe bodily injury or sexual assault Belief must be reasonable Subjective approach: was it reasonable to him? Objective approach: Where the analysis has two levels First: court asks whether the D sincerely and honestly believed that he faced a threat and that force was reasonable to repel it Second: the court asks whether the belief was objectively reasonable under the circumstancesHybrid: objective-subjective tests Objectively reasonable and subjectively held Actually have to have that belief and it must be reasonable Reasonable Reasonable man standard: one standard for everyone Reasonable in the circumstance: allows it to be slightly tailored to the person, but if you include all factors turns into the subjective testCourts may consider the situation, including the D’s knowledge and prior experiences, in determining whether the belief was reasonable MPC: A D charged with murder (or attempted murder) only need to show that he believed that the use of deadly force was necessary to protect himself against death, serious bodily injury, kidnapping or forcible sexual intercourse to prevail on a self-defense claim. If the D belief is wrong, and was recklessly or negligently formed, he may be convicted of the type of homicide charge requiring only a reckless or negligent criminal intentImperfect self-defense Jurisdictions are split: On-off switch: either the D is justified in his action or not Imperfect self-defense/putative self-defense Recognizes that cases of mistaken self-defense are less blameworthy than cases of cold-blooded murder Charged with voluntary manslaughter/involuntary manslaughterMPC says involuntary Insanity it not relevant to imperfect self-defense General rule: the killing of another in self-defense by one who is free from fault is justifiable homicide if, under all the circumstances, he honestly and reasonably believes that he is in imminent danger of death or great bodily harm and that it is necessary for him to exercise deadly force Exceptions: One who is without fault is never obligated to retreat from a sudden, violent attack or retreat when to do so would be unsafe and in such circumstances the presence of an avenue of retreat cannot be a factor in determining necessity Our law imposes an affirmative "duty to retreat" only upon one who is at fault in voluntary participating in mutual nondeadly combat The castle doctrine permits one who is within his dwelling to exercise deadly force even if an avenue of safe retreat is available, as long as it is otherwise reasonably necessary to exercise deadly forceDefense of property General rule: lethal force is never okay needs to be proportional Hypo: shopping center and someone shoplifts Can use reasonable physical force Can be detained: reasonable force is detention, wait for police Reasonable force to safely get the item back citizen arrest If innocent, can resist a citizen’s arrest Defensive Force by Police Officers Police are subject to constitutional and statutory requirements that prohibit their use of excessive force Might be subject to Private lawsuit for exercising excessive force contrary to 4th amendment Federal criminal charges for violating the civil rights of the individual they assaulted or killed Limitations State statutes Civil rights violations: police are constrained in their use of force by statutory regulations Constitutional limitations May use deadly force against a fleeing suspect when the officer reasonable believes that the suspect poses an immediate danger to another person, either the police or the public at large Police may use force to a greater degree than a private citizen under certain circumstances which do not necessarily fit with self-defense Needs to be an imminent and reasonable belief States statutes governing police use of force Missouri law grants police officers a justification for killing in the following circumstances: in making an arrest or preventing escape from custody, the officer "reasonably believes that such use for deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested: (a) has committed or attempted to commit a felony; or (b) is attempting to escape by use of a deadly weapon; or (c) may otherwise endanger life or inflict serious physical injury unless arrested without delay The key point to understand is that these statures offer an additional affirmative defense that only applies to police; regular citizens must still rely on the more restricted standards for general self-defense Common law: police could arrest with deadly force if it was a felony, if misdemeanor, could not Garner Rule: the person had to pose an immediate risk to the police officer and the community If constitutional rights are violated, Family can file a 1983 civil rights claim (against the state) – difficult to use under Did the police officer exceed the constitutional limitation or state law?Have to show that the police officer made a knowing, willful violation of a known legal duty (have to have a knowing disregard of legal duty) – this is hard to prove Standard: Scott v. Harris Test is one of reasonability as long as the police are acting reasonable, don’t have to establish imminent harm or a threat to the community or police officers Necessity/Duress VERY limited – under certain limited circumstances, allows a D to procure a get out of jail free card simply because committing the crime was a necessity the benefits from violating the law outweigh the costs balancing of evils necessary that 1. The D violation of the law produces a lesser evil than had the D complied with the law 2. The danger sought to be avoided must represent a present, imminent or immediate threat 3. The D cannot be responsible for creating the very situation that produced the state of necessity 4. The D must have no alternative but to violate the law 5. There must be a causal relationship between the criminal act and the harm to be avoided The D must not have continued the illegal conduct after the harm was averted Defense to murder: Common law: necessity is generally unavailable in prosecutions for murder D cannot claim that killing an innocent individual was necessary to save a greater number of individuals Although some crimes can be justified because they produce a lesser evil, there is an inherent moral limitation to this argument an the law draws this line right at the crime of murder, which cannot be justified simply because the resulting death would help others MPC has no such restriction Has not been successful at getting states to abandon the common law The one situation where necessity would still be a defense to murder is in the felony murder context Since necessity would be a successful defense to the triggering felony, there would be no triggering felony from which the prosecution could build a coherent felony murder theory Necessity is not a defense to intentional killing of an innocent human (no matter how much you want to eat them….) Necessity and Prison Breaks Necessity and Civil DisobedienceDirect civil disobedience When the protestors are breaking the very law that they are protesting Example: a sit in to protest segregation Indirect civil disobedience Violation of the law is a mere message and not directly connected to the gar associated with the policy Example: vandalism on government building to protest foreign policy affirmative defense Excuse or justification Justification: still the right thing at the end of the day (necessity Excuse: an act of mercy It would be better if a person could refrain from doing the criminal act, but given the weakness of humans, we cant do that Necessity is a justification Duress is generally an excuse Being forced to do something you probably shouldn’t be doing Moral question of where you draw the line Duress A person who issues a threat trying to coerce an otherwise innocent individual into committing a crime on his behalf, if the innocent individual succumbs to the threat, her actions should be excused because the threat vitiated her autonomy D must be able to show they committed the crime because (i) they or a third party faced an imminent threat from another individual with no opportunity for reasonable escape (ii) the threat was sufficiently severe in nature (iii) the crime committed was not murder (iv) the D was not reckless or otherwise culpable in creating the circumstance that produced the duress Balance of evils is not there, society would have been better off if refrained (but its alright) There has to be a threat that vitiate autonomy A really bad choice Don’t have to give up own life/shoot children Death or serious bodily injury of a person Would a person of reasonable firmness resist the threat Makes pets and physical coercion ambiguous In general: duress is not a defense to murder Exception: MPC If reckless in creating the harm then its not available to you Threat needs to be sufficiently severe Threat should be of death or serious bodily injury v. functional criteria of reasonable firmness MPC: requires that the threat involve an unlawful force against his person or the person of another, which a personal of reasonable firmness in his situation could have been unable to resist Whether a person in the D situation would have succumed to the threat Whether a person of reasonable firmness could have been unable to resist Question of reasonableness Objective - subjective hybrid Was it objectively reasonable for a person in similar circumstances as the D to succumb to the threat? Object of the threat D or close family relation v. any third party Duress is an excuse, not a justification, so there is no requirement that the D selected the "better" of the two options The defense is an excuse based on vitiation of the D autonomy ?Defense to murder Duress is usually unavailable as a defense to murder MPC: allows the defense Expects that the target of coercion would sacrifice themselves rather than commit murder Exception: felony murder Where duress might extinguish liability for the triggering delint and therefore make a conviction for felony murder impossible ?Recklessness in creating the threat Duress defense is not available if the D is reckless or otherwise culpable in creating the very situation that gave rise to the duress Rational for the rule is that D should not be able to opportunistically create conditions for their own defense -- a principle that also limits other defenses such as voluntary intoxicationMPC: If reckless in creating the harm then its not available to you (duress) Duress destroys the mental state There are three elements to the defense of duress. First, the threat of death or serious bodily injury must be immediate. Second, the defendant must act on a well-grounded fear that the threat will be realized/carried out Third, there must be no reasonable opportunity for the defendant to escape. ** sometimes the D must submit to the proper authorities after attaining a position of safety Duress as an excuse, not justification Intoxication: Two types of intoxication: Voluntary intoxication involves a D who willingly imbibes an intoxicating substance such as liquor or drugs, whether illegal or prescription Involuntary intoxication involves a D who is drugged without her knowledgeIs commits a crime, (not strict liability) it negates the mental state (crime of recklessness-- not as clear, but probably) Common law: unsympathetic to drunk D Neither voluntary nor involuntary intoxication were valid D Intoxication was an excuse to specific intent crime but not general i.e. assault and battery: general, no excuse Ie. Assault with the awareness that the individual has severe handicap--- specific, some level of excuse Now: D can assert voluntary intoxication for specific intent from, but its not a defense for a general intent crime Takes specific intent down to general intent Now many states are returning to the old old view that voluntary intoxication is never an excuse Insanity Whether a criminal was too insane to warrant criminal punishment Tests Cognitive test introduced in M'Naghten Irresistible impulse or volition test MPC substantial capacity test With each of these standards the D makes a formal plea of not guilty by reason of insanity In acquitting someone by reason of insanity, the legal system determines that the D was not acting as a free moral agent who's behavior is worthy of social condemnation through the institution of punishment Doesn’t negate the mental state, negates their ability to rationalize The essential cognitive relationship to the world is missing Who has to prove the insanity Affirmative defense, you have to prove your cray-cray Assumption that the law only works on rational beings/someone capable of emotional/rational control--if someone is lacking, its just not right to punish them ?The cognitive test M'Naghten To establish a defense on the ground of insanity it must clearly proved that, at the time of committing the act, the party accused was laboring under such a defect or reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong M'Naghten test concentrates on the impairment of a D's cognitive capacity Always requires a finding that the D suffered from a mental disease or defect that caused a cognitive impairment Two prongs D believes he is committing one action but is actually committing another D correctly perceives the action but is unaware that it is wrongful Either situation is sufficient If you do not understand, by defect of reason, the nature/quality of the act or that he doesn’t know what he is doing is wrong?The irresistible impulse test Expanded M'Naghten to include a volitional component as an additional prong to the preexisting cognitive test D is legally insane if he meets the M'Naghten standard OR if he suffers from a volitional defect that prevents him from complying with the demands of the law Irresistible impulse test because the actor is unable to control his behavior and comply with the law The important part is that the irresistible impulse test supplements rather than replaces the cognitive test in M'Naghten Defect within one's own sense, cannot test/have a standard for that ? ................
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