I
CRIMINAL LAW
Introduction
A. Jury Nullification
1. Definition
a) Jury may ignore the facts of the case and the judge’s instructions on the law and decide case as they see fit
b) Fifth Amendment Double Jeopardy Clause (“no person shall…be subject for the same offense to be twice put in jeopardy”) bards the govt. from reprosecuting a defendant after a jury acquittal
c) Should they be informed of right of nullification?
Principles of Punishment
A. Theories of Punishment
1. In General
a) Why (and whether) social institution of punishment is warranted
b) Necessary conditions for criminal liability & punishment
c) Form & severity of punishment that’s appropriate for offenses
2. Utilitarian
a) Punishment justified bc of useful purposes that it serves
b) Forward looking, justified on basis of supposed benefits that will accrue
c) Aims to augment total happiness of community
d) Beneficial Consequences
1) General Deterrence
2) Individual Deterrence
3) Incapacitation & other forms of risk mgmt. to protect society
4) Rehab & Reform
3. Retribution
a) Punishment justified bc people deserve it
b) Backward looking, justification found in prior wrongdoing
B. Penal Theories in Action
1. Who Should Be Punished?
a) Queen v Dudley and Stephens – seamen convicted for killing & eating young crewman
1) ISSUE: Should a person be punished and convicted of murder, for killing out of necessity?
2) RULE: A person may be punished and convicted of murder, despite killing out of necessity
3) Subjective decisions made on giving punishment, does it matter if sailors had families? Upstanding citizen (vs. homeless person) who kills be treated differently?
b) Retribution – backwards looking, punish for murder; necessity never a defense for murder
c) Utilitarian – General Deterrence, condemn murder
2. How Much Punishment Should be Imposed?
a) People v Du – storeowner shoots kid over orange juice
1) Sentencing Objectives
a) Protect society
b) Punish the defendant for committing crime
c) Encourage the defendant to lead a law-abiding life
d) Deter others
e) Isolate the defendant so she cannot commit other crimes
f) Secure restitution for the victim
g) Seek uniformity of sentencing
b) United States v Jackson – 55 yr old repeat offender of robberies gets sentenced to life
1) Majority felt that specific deterrence has failed so must send him to life
2) Minority felt that if deterrence was the point, 20 years would have been suffice
c) Coker v Georgia – prison escapee brakes into home, rapes wife, and takes family car.
1) ISSUE: D felt that his 8th amendment right was violated b/c sentence of death was grossly disproportionate to crime
2) RULE: 8th amendment – excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted
3) Majority found that although rape is a horrible crime that destroys the victim and harms the community, “a life has not been taken so a life should not be taken.”
4) Dissenting stated “it is not unconstitutional for a legislation to make the penalty more severe than the crime to deter others.
d) Ewing v California – Three strikes law from theft of golf clubs gives guy 25yrs to life.
1) Three strikes law: the triggering event can be anything but there has to be at least two serious felonies prior.
2) Wobbler – offenses that can be classified as either a felony or misdemeanor. Is considered a felony until the court makes it into a misdemeanor.
3) Romero motion – judges have the power to “strike the strikes.” D would ask judge to remove strikes.
4) Proportionality – the punishment should fit the crime
5) Judges may always consider both prior misdemeanors and felonies when sentencing.
C. Principle of Legality
1. The Requirement of Previously Defined Conduct
a) Commonwealth v Mocha – guy sexually harasses women on telephone.
1) ISSUE: Can guy be charged w/ a misdemeanor that does not exist under common law?
2) Court here made its own law based off of a section of Penn Penal Code.
3) Dissent argues that law making should be done by legislation, not the courts
b) Keeler v Superior Court – Angry ex-husband kills fetus of ex-wife
1) ISSUE: Is an unborn baby a human being under Cal Statute defining murder?
2) Unforunately, the statute at the time stated that the murdered must be a human being. Court cannot come up w/ it’s own rules (job for legislation). Found that human being does not encompass fetus so D not charged for murder.
2. The Values of Statutory Clarity
a) In Re Banks – “Peeping Tom” statute was found to be unconstitutionally vague and unenforcable
D. Statutory Interpretation
ACTUS REUS
A. Definition
1. physical or external part of crime, resulting in harm
2. conduct or result? i.e. A picks up gun, aims, fires & kills B
3. if coerced, still considered voluntary action
4. involuntary – not culpable
B. Voluntary Act
1. Martin v State – police arrest intoxicated man at home, take him onto highway & arrest him for public drunkenness.
a) ISSUE: Must a defendant perform the physical act for each element of a crime that has an actus reus component?
b) RULE: YES, a defendant must perform the physical act for each element of a crime that has an actus reus component
c) Although statute does not expressly call for “voluntary” act, the court infers a voluntariness requirement; MPC only requires one voluntary act
2. Punishing Thoughts
a) Criminal law punished conduct and not mere thoughts
b) Morally wrong to punish for unacted-upon intentions (retributive)
c) Society values and respects freedom
3. Voluntary vs. Involuntary Actions
a) “Person is not guilty of an offense unless his conduct includes a voluntary act or the omission to perform an act of which he is physically capable.” MPC §2.01
b) Element of voluntariness applies to the act that causes the social harm.
1) Ex. “I raised my arm;” and “My arm came up” ( difference between voluntary and involuntary act.
c) gun pointed at head, must perform act. Is act voluntary or involuntary? Voluntary even though coerced
d) Posession – can’t be convicted for possession unless aware of having forbidden item to get rid of it; voluntary if knows about it, possession can be a voluntary act, can also be involuntary i.e. when planted on person
4. What is a Voluntary Act?
a) State v. Utter – father stabs son
b) FA voluntary act requires the consent of the actor’s will. An act committed while unconscious is really no act at all, merely a physical event for which no crim. Liability exists. BUT voluntary intoxication that induces unconsciousness is not a complete defense. (State v. Utter)
c) People v. Decina - D knew he was subject to epileptic seizures, suffered a heart attack while driving, killed 4 children.
1) D charged w/operating a vehicle in “reckless or culpably negligent manner”, is conduct “involuntary”?
C. Omissions (Negative Acts)
1. General Rule
a) A person may be found criminally liable if he fails to perform a legal duty and his omission causes harm. Unless by acting he’s endangered
b) People v Beardsley - duty neglected must be a legal duty and not a mere moral obligation and the omission to perform the duty must be an immediate or direct cause of death. An individual who has a legal duty must execute his responsibilities or be found guilty of manslaughter if his negligence causes death of person. No legal duty to prevent suicide
2. Failure to Act may constitute breach of legal duty when…
a) Statute imposes duty
b) Certain status relationship w/another – husband to wife, parent-child
c) One has assumed contractual duty to care for another
d) Voluntarily assumed the care of another and so secluded the person so as to prevent others from rendering aid
e) Create risk – driver strikes and injures pedestrian
3. 1964 Murder of Kitty Genovese
a) 38 witnesses heard her cries for help but didn’t come to her aid
b) Law says none of them had a legal obligation to help her
c) “Bystander effect” – 81% reported when thought they were only one could hear victim, 31% acted when thought 4 others heard
4. Soulless Individualism
a) Cash witnessed friend struggling w/7 year old girl, he walked out, girl later raped and killed
b) Violated no state law
c) Justifications for common law rule:
1) Omissions inherently more ambiguous, harder to determine motives & thus culpability
2) Difficult to line-draw i.e. Kitty all 38 guilty, only those who realizes seriousness?
3) Bystanders often make matters worse
4) Freedom – society values personal autonomy, seeks to prevent, not compel
5. Misprision of a Felony
a) Absent special circumstances, person has no legal duty to inform police of another person’s plan to commit criminal offense.
b) Failure to disclose info. About a felony (after it occurred) is misdemeanor offense “misprision of a felony”
1) Prohibits active concealment, but not simple disclosure, of a known felony
D. Distinguishing Acts from Omissions
1. Barber v Superior Court - Removal of life support equipment from a comatose patient who is unlikely to recover is not an affirmative act, but an act of omission to omit future medical care, that if in accord with the patient’s or surrogate’s wishes, does not give rise to criminal liability. A physician has no duty to continue treatment once it has proven to be ineffective.
a) Policy – Court said medical procedures to provide nutrition/hydration more similar to other medical treatments than to traditional ways of providing food/water, should be evaluated on same basis
2. Result Crimes vs Conduct Crimes
a) Result – being punished for outcome, not for voluntary act or omission but from harm from acts i.e. homicide or arson
b) Conduct – being punished for behavior to prevent dangerous results; prohibits dangerous behavior, i.e. driving under influence, solicitation of murder
c) Person not guilty of offense until proves specified conduct and result
d) Attendant Circumstance – condition that needs to be present to make it a crime; “in an intoxicated condition”
MENS REA
A. Nature of Mens Rea
1. Definition
a) “A guilty mind, a guilty or wrongful purpose, a criminal intent”
b) Both broad and narrow meanings
1) Broad – guilty mind, morally culpable state of mind, if commit act intentionally, willfully, recklessly, doesn’t matter
2) Narrow – elemental meaning of mens rea, not guilty (even if has culpable frame of mind) if she lacks mental state specified in definition of crime
a) Guilty of X if she intentionally does Y; if she does Y recklessly, than not guilty!
3) changing of a word in statute can change the standard from an objective (foreseeability) one to a subjective (foreseen) one
2. Regina v Cunningham – thief stole gas meter from basement, caused gas to leak and endanger mother-in-law in an adjoining house
a) RULE: means rea requirement is satisfied by a showing of either intentional or reckless conduct, showing of malice or wickedness will not suffice
b) Shows elemental approach to mens rea
B. General Issues in Proving Culpability
1. Intent
a) People v Conley – after high school party, boy hits another in face w/wine bottle but meant to hit someone else
1) RULE: Person acts w/intent if it is his conscious object to cause a social harm or he knows that such harm is almost certain to occur as a result of his conduct
2) Court looked at legislative intent to resolve, believed they wanted to protect “bodily integrity of person”
b) Common Law Intent
1) Results that are conscious object of the actor, what he wants to occur & ALSO…
2) Results he knows are virtually certain to occur, even if he doesn’t want them to arise; must consider totality of circumstances
c) Proving Intent
1) Presumption that a person “intends the natural and probable consequences of his actions” (can’t instruct jurors that law presumes that a person…only infer that a person…)
d) Transferred Intent
1) When a person intends to cause a particular social harm to one person but ends up causing the same harm to another
2) Defendant’s guilt is same, transfers actor’s state of mind regarding the intended victim to the unintended one
3) Criticism of Transferred Intent Doctrine
a) Is a “legal fiction”
b) Unnecessary and mischievous, confusion can arise when prosecutor tries to transfer intent to commit one type of social harm to a different type i.e. P throws rock at X, hits window behind X. “malicious injury to property”, transfer intent to hit X to window?
e) Specific Intent and General Intent Offenses
1) General
a) Morally blameworthy state of mind
2) Specific
a) Mental state IS expressly set out in definition of crime; specific mental state required above and beyond any mental state required w/respect to actus reus
i) Intention by actor to commit some future act, separate from actus reus of offense (possession of marijuana with intent to sell)
ii) Offense may require proof of a special motive for committing actus reus (offensive contact upon another with intent to cause humiliation)
iii) Proof of actor’s awareness of an attendant circumstance (intentional sale of obscene materials to one under age of 18)
2. The Model Penal Code Approach
a) Description
1) Applies Elemental Approach to Mens Rea; pros. must prove def. committed each material element of offense required in crime
2) Abandons countless common law mens rea terms, uses only 4 culpability terms
3) Principles help to resolve mens rea issues that have confused courts
b) Objective
1) Advance clarity of draftsmanship in delineation of crimes
2) Provide framework against which definitions may be tested
3) Dispel obscurity
| |
|Purpose |
|Conduct or Result |
|Conscious object to perform an action or to cause such a result |
|Attendant Circumstances |
|Aware of the existence of such circumstances or hopes that they exist |
|3) involves subjective standard |
| |
|Knowledge |
|Nature of Conduct or Attendant Circumstance |
|Aware that conduct is of that nature or that such circumstances exist |
|Conduct |
|Consciously aware that result is virtually certain to follow from conduct |
|3) involves subjective standard |
|Recklessness |
|Involves risk creation, awareness of risk, less than substantial certainty |
|Disregard for a substantial and unjustifiable risk, gross deviation from standards of conduct that a law-abiding person would have followed? |
|Involves subjective fault – aware of the risk he was taking and consciously disregarded it |
|Negligence |
|Does not involve state of awareness, inadvertently creates a substantial and unjustifiable risk of which he ought to be aware. |
|Objective fault – not blamed for wrongful state of mind, but punished for not acting like a reasonable person |
c) Offense silent to Culpability
1) Unless culpability prescribed by law, it is established if a person acted purposely, knowingly, or recklessly.
3. “Knowledge” of Attendant Circumstances (Willful Blindness Problem)
a) State v Nations – nightclub owner hired 16 year old girl to dance, thought she was 18
1) RULE: unless criminal code states otherwise, requirement that a person commit act “knowingly” will not be satisfied unless person had actual knowledge of existence of particular fact
2) Using MPC vs. criminal code, prosecutor’s burden lightened, prove either accused actually knew of attending circumstance or that she was aware of a high probability of its existence and deliberately chose NOT to know about it [§2.02 (7)]
3) In Criminal Code of Missouri, statute requires there is actual knowledge of age
4) Willful blindness equates to knowledge
4. Problems in Statutory Interpretation – US v Morris
a) How to Analyze Cases
1) What does statute say about mens rea (intention, culpability, knowingly, intentionally)
2) Definition of words i.e. malice (Cunningham)
3) Define mens rea words i.e. malice (Cunningham, knowingly, recklessly)
4) Interpret statute plain reading, how statute is worded and where mens rea words are used in statute
5) Doctrine of lenity – two reasonable interpretations, one for D, one for P, tie goes to D; avoid absurd result
6) Apply facts to law
C. Strict Liability Offenses – no mens rea
1. US v Cordoba,
a) Fall under cases of minor public welfare offenses and statutory rape
2. Garnett – statutory rape case
a) Despite lack of mens rea, mistake is no defense to strict liability offenses
3. Criticism of strict liability
a) does not deter
b) unjust to condemn person who is not morally blameworthy
4. Questions – yes, than most likely not strict liability
a) Does it involve probable law conduct?
b) Does it carry a severe penalty
c) Is the crime not within the category of public welfare
d) is it not part of complex regulatory scheme - taxes
D. Mistake of Fact, Mistake of Law and Mens Rea
Mistake of Fact:
a) RULE: In specific intent crimes, a mistake of fact is a defense if the mistake negates the specific intent required in the definition of the crime. Even an unreasonable mistake will be a defense to specific intent crimes. Where a specific intent is required to convict a person of a crime, the prosecution has a burden of proof to show that the accused actually possessed the requisite intent. It does not matter if mistake of fact was reasonable or unreasonable. In Navarro, prosecution must prove actual intent and that he also intended to permanently deprive the owner of property.
b) Common Law Mistake of Fact Analysis
1) Mistake of fact for specific intent
a) If specific intent, does the mistake relate to the specific intent portion of the offense?
i) If YES: do the elemental analysis: ask whether the mistake of fact negates the specific intent element of the offense. If it does, the defendant must be acquitted. (Navarro)
ii) If NO, treat the offense as if it were a general intent crime (next section)
2) Mistake of fact for General Intent
a) Honest and reasonable mistake of fact is a defense to a general intent crime.
b) Honest mistake alone is enough for a defense in a specific intent crime if the mistake is about the specific intent portion of the statute.
c) Do culpability analysis, i.e., determine whether defendant acted with a morally blameworthy state of mind. There are a few ways to do this:
i) The usual way: Determine whether the mistake was reasonable or unreasonable
a) If he acted unreasonably, he is culpable and does not have a defense.
b) If his mistake was reasonable, he did nothing wrong, he is morally innocent and is entitled to a defense for want of a “mens rea”.
ii) Alternative approach: Some courts go one step further by applying the moral wrong or legal wrong doctrine. Applying these doctrines, a person who made an honest and reasonable mistake may still be found guilty if the court finds:
a) Moral wrong: even an honest, reasonable mistake, won’t excuse a person engaged in immoral conduct when he made the mistake. (Example: reasonable mistake that girl was 18, when she in fact was 14 is not a defense since the D is “morally wrong” for being sexually involved with a minor – D assumed the risk) see note 5, p 190
b) Legal Wrong: In a situation where the defendant intends one crime but commits another more serious crime by mistake, the mistake is not a defense. If he only intended to commit a misdemeanor but committed a felony by mistake, he will be convicted of the felony. See note 6, p 191
3) Mistake of fact for Strict Liability
a) Mistake is never a defense
Mistake of Law
a) GR: Ignorance of law is no excuse (subject to exceptions – specific intent)
c) Rationale of the Rule (Public Policy)
1) Certainty of the law
a) Law is definite and knowledgeable
2) Avoiding subjectivity in the law
a) Officials and institutions determine meaning of law
3) Deterring fraud
4) Encourage legal knowledge
a) Excuse to one would be to encourage ignorance
b) Best way to discourage ignorance is to use strict liability that mistake of law is no excuse.
d) Criticism of rule
1) D not knowingly committed a wrong so there can be no reason for society to extract contribution
2) Wrong to punish someone who, in good faith reliance on the wording of the statute, believed that what he was doing was lawful.
e) Exceptions where ignorance of the law may negate intent
1) Reasonable reliance (Entrapment by Estoppel) – Excuse defense
a) Person NOT excused for committing a crime is relies on own erroneous interpretation of law, even if reasonable person would have similarly misunderstood law
b) Person IS excused if relies on official statement of the law, later determined to be erroneous
i) Statement of law is official when:
a) Obtained from person or public body that is responsible for interpretation, administration, or enforcement of the law defining the offense.
b) Statute later declared to be invalid.
c) Judicial decision of highest court later to be determined erroneous
ii) NOT official to rely on advice of private counsel
c) Rationale for reasonable reliance doctrine:
i) Threat of punishment will have little deterrent effect on someone who relied on official statement of the law.
ii) Lacked moral culpability of own actions of relying on official, but erroneous, interpretation
iii) Unfair for government agent to authorize conduct and then punish.
d) RULE: Generally, a mistake of law is not a defense, even where the interpretation is reasonable. One is never excused for relying on a personal, although reasonable, reading of a statute. (People v. Marrero)
2) Fair notice – Excuse defense
a) Grossly unjust to assume that a citizen is aware of a penal law’s existence. May assert defense in limited circumstances.
b) In certain circumstances, person who is unaware of statute may successfully assert a defense. (Lambert v. California)
i) Three aspects of case:
a) It punished an omission (failure to register)
b) They duty to act was imposed by status (presence in LA)
c) Offense was malum prohibitum (crime merely bc prohibited by statute)
3) Failure of proof claim - Ignorance or mistake that negates mens rea of specific intent crime
a) Generally, Mistake of law, whether reasonable or unreasonable, will usually not negate mens rea, unless specific intent offense
b) Specific-Intent Offenses
i) Mistake of law is defense, whether reasonable or unreasonable, if the mistake negates the specific intent.
ii) Cheek v. United States – pilot didn’t pay taxes
a) ISSUE: Is a mistake of law that relates to the specific intent of a crime a defense to criminal prosecutions? YES.
b) RULE: The general rule is that a mistake of law is no excuse, but an exception applies when a mistake of law, whether reasonable or unreasonable, negates the specific intent required for conviction.
c) General-Intent offenses
i) Whether mistake is reasonable or unreasonable, it is not a defense to general intent crime.
d) Strict Liability
i) No defense for mistake of law.
HOMICIDE
Overview:
i. Homicide – killing of human by another human, legally neutral term
a) Lawful
1) Excusable
2) Justifiable
b) Unlawful
1) Murder – unlawful killing of human by another human with malice aforethought
a) First degree
b) Second degree
2) Manslaughter – unlawful killing of human by another human without malice aforethought
a) Voluntary
b) Involuntary
A. Intentional Killings/Murder
1. Unlawful killing
2. Malice Aforethought – must possess any one of following
a) Intention to kill a human
b) Intention to inflict grievous bodily injury on another
c) Depraved heart - extremely reckless disregard for value of human life
d) Intent to commit a felony during which death occurs (strict liability)
3. CA Penal Code (common law there are no degrees of murder)
a) Malice is:
1) Express – intent to kill
2) Implied:
a) Killing Resulted from Intentional Act
b) Natural/Probable consequences are dangerous to human life (Objective standard)
c) Act deliberately performed w/knowledge of danger to and with conscious disregard for human life (Subjective standard)
4. 1st Degree Murder – Intent to Kill
a) Deliberation-Premeditation Formula
a) Deliberation
i) Measure and evaluate the major facets of a choice or problem
ii) State of mind free from influence of passion or excitement
iii) Quality of the thought process
iv) Impossible for person to deliberate unless she premeditates
b) Premeditation
i) Quantity of time
ii) Think about beforehand
iii) Brief moment of thought
a) No specific period of time required
iv) Lack of standard
i) Michigan has more defined standard ( Thought process undisturbed by “hot blood”
ii) Long enough to give reasonable man a chance for a “second look”
iii) Some jxs observe that P and D need precede the homicidal act only momentarily.
c) Proof of deliberation and premeditation
i) Planning activity
ii) Motive
iii) Manner of killing
iv) planning, thinking, forming the intent to act
d) Purpose
i) To distinguish between more and less culpable murders
e) RULE: No requirement intent to kill be formed at some period of time before killing itself, for the killing to be premeditated, deliberate and willful. Intent to kill need only exist for an instant. (State v. Schrader)
f) RULE: The evidence in this case does not show that D intended to kill the child, but only to abuse him. Intent of abuse is not intent to kill. Insufficient evidence to support premeditated murder, was intent to do serious bodily injury, a 2nd degree murder charge. (Midgett v. State)
g) RULE: Killing someone to prevent his further suffering is still murder in first degree, if willful, deliberate, and premeditated. Look at circumstantial evidence to see if there was planning. (Cock gun separately before each shot; father was helpless; took gun with him to the hospital; made statements after shooting) (State v. Forrest)
5. 2nd Degree Murder
a) Intent to kill without P and D or provocation
b) Intent to inflict grievous bodily injury
1) When D unjustifiably and inexcusably intends to cause serious bodily injury that results in death
2) Usually express malice
3) MPC – would handle the case as extreme recklessness
c) Depraved Heart/Abandoned and malignant heart (MPC - Extreme Recklessness)
1) Extreme indifference to human life.
2) “a wanton and willful disregard that the natural tendency of D’s behavior is to cause death of great bodily harm”
3) Usually implied malice
4) Different than recklessness in involuntary manslaughter.
a) Consciously disregards a substantial and unjustifiable risk to human life.
b) Contrast manslaughter – should be aware
d) M2 for unintentional killing if:
1) Extreme indifference to the value of human life – Abandoned malignant heart
a) (Engages in conduct where there is a probability that the conduct will result in death.)
2) Awareness of the risk OR conduct is contrary to law
3) No justification for the risk
4) Risk resulted in death.
B. Manslaughter
1. Overview
a) Definition:
1) Unlawful killing without malice aforethought
b) Purpose of distinguishing this homicide?
1) Culpability/Blameworthiness Issue
2) Recognition of human frailty
c) Voluntary
1) Sudden heat of passion due to adequate provocation, before there is time to cool off.
d) Involuntary – unintentional killing
1) Criminal negligence – gross negligence
2) Reckless – awareness of risk
2. Common Law Principles – Voluntary Manslaughter
a) General
1) “Sudden heat of passion” as the result of “adequate provocation” mitigates the offense to voluntary manslaughter.
b) Common Law Rule of Provocation Test:
1) Was there adequate provocation? (objective)
a) Extreme assault or battery
b) Mutual combat
c) Illegal arrest
d) Adultery, Sudden discovery of adultery
i) Some courts, learning about adultery; observation of 3rd party sufficient provocation.
e) Injury to self or 3rd party that is a close relative
2) Was it in the heat of passion? Was he actually provoked? (subjective)
3) Was there reasonable opportunity to cool down? (objective)
a) Defense usually not available to someone subject to minor acts of provocation, and then boils over
b) Usually a question for the jury ( question of reasonable time
c) If someone had time to cool-off, it is premeditation
4) Is there a causal link between provocation, the passion, and the homicide? Did defendant actually cool down? (subjective)
a) Was there prior abuse? Should this be allowed in as evidence?
c) Modern Law
1) “Adequate provocation” should be left for jury to decide. (MPC)
a) “whether provocation might inflame a reasonable person to the degree this defendant is inflamed.” ( more discretion to jury
2) Words alone do not constitute adequate provocation (though this is changing, i.e. racist remarks)
a) Generally, words alone are not adequate provocation to provoke a reasonable person to kill in the heat of passion. 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 reason.” Words can constitute adequate provocation is they are accompanied by present intention and ability to cause D bodily harm.
i) POLICY: Domestic disputes frequently occur and involve heated words. If we allow this, we are saying that in every domestic violence case, it would be manslaughter and not murder. (Girouard v. State)
3. Who is the Reasonable Man (in terms of provocation)?
a) Ordinary man who sometimes acts out of uncontrolled emotion rather than reason
b) Movement to subjectivize standard, include some of D’s personal characteristics in reasonable person. Where to draw the line?
1) Measuring gravity of provocation to reasonable person
2) Assessing level of self-control expected of reasonable person
a) Jury told reasonable man possesses degree of self-control expected of person of same age and sex of accused (Director of Public Prosecutions v. Camplin)
3) In recognizing cultural differences in multicultural society and to be fair to those who are not fully integrated into our society, run the risk of trivializing anti-killing message of criminal law! Slippery slope argument!
4. Model Penal Code and Beyond
a) People v. Cassasa
1) ISSUE: Is the test of whether an extreme emotional disturbance (EED) of the killer was caused by a reasonable explanation or excuse determined from the subjective point of the killer. NO
2) RULE: The test of whether EED of the killer had a reasonable explanation or excuse depends on a reasonable evaluation of the external circumstances that the killer believed he was facing and not on the killer’s personal point of view.
a) Subjective – state of extreme emotional disturbance
b) Objective – whether there was a reasonable explanation or excuse for that emotional disturbance. ( takes point of view of a person facing the same circumstances as killer believed he was facing, but without any quirks that killer had
5. Rationale for Provocation Defense
a) Partial justification
1) Provokers deserved to be harmed
a) i.e. Adultery
2) Misdirected retaliation – provocation only can be used when D attempts to kill “right” person i.e. person who performed provocative act
b) Partial excuse
1) Weakness of human nature
2) Person disturbed or obscured by passion is less able to control actions
3) Leniency for people who act as another might act in same situation.
4) Less blameworthy because anger was understandable
c) Policy
1) against provocation defense
a) Reasonable people don’t kill
b) Diminishes value of victim’s life – partial justification/partial excuse
c) Condones male centered perspective that understandable to kill over upset response
i) Adultery or sexual provocation
2) For provocation defense
a) Differentiates between more and less serious offenses
b) Passion serves to mitigate offense
c) Killing is actually involuntary because there was no cooling off time.
C. Unintentional Killings – Unjustified Risk-Taking
1. Definition
a) Involuntary Manslaughter - gross deviation from standard of care reasonable/ordinary person would exercise in same situation; unaware of risk ( criminally negligent
b) Compare to depraved heart murder - Life endangering acts so reckless as to manifest wanton indifference to human life, aware of risk but proceed anyway ( malice aforethought (murder)
2. Test of implied malice in an unintentional killing – conscious appreciation of a high degree of risk that is objectively present.
3. Berry v. Superior Court – pit bull in yard
a) ISSUE: Can keeping of dangerous animal, accessible to the public, support a belief of implied malice? YES.
b) RULE: Keeping of dangerous animal to safeguard an illegal operation constitutes sufficient basis to derive implied malice.
1) Some conduct can be seen as so reckless or dangerous as to supply mens rea element for M2nd –depraved heart murder
4. People v. Nieto Benitez
a) Implied Malice – present when on considerable provocation appears, or when circumstances show an abandoned and malignant heart
1) Two types of malice (CA Statute)
a) Malice implied where D for a base, antisocial motive and w/wanton disregard for human life, does an act that involves a high degree of probability that it will result in death
b) Malice implied where killing was proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts w/conscious disregard for life.
5. State v. Hernandez – drunk driver w/stickers
a) ISSUE: Should evidence which is offered to show that D was aware of the risks of his behavior but which is also prejudicial to his character be admissible when the charge is involuntary manslaughter?
b) RULE: No. Evidence to show that the accused was aware of risks of behavior is not admissible to show mental state when the charge is involuntary manslaughter.
1) To prove involuntary manslaughter, must show
a) D created substantial and unjustifiable risk [baby bear outline] pg. 294 text
b) D acted with criminal negligence and should have been aware of the risk.
c) Victim died as a result of the criminal negligence.
c) Negligence is an objective standard b/c liability is based on failure to live up to standard of care of the reasonable person.
6. State v. Williams – parents neglect to take child to doctor
a) ISSUE: May simple negligence support a conviction for manslaughter?
b) RULE: Yes. A showing of ordinary negligence (vs. criminal) may be sufficient to support a conviction for manslaughter.
1) WA statute only requires failure to exercise ordinary caution
2) Cultural issue – should we use reasonable man standard? Reasonable Native Amer.?
7. Policy: Objective negligence standard?
a) For
1) May supply people with additional motive to take care before acting
2) Justice requires that punishment be inflicted to the extent that the offender deserves punishment
b) Against
1) Threat of criminal liability does not deter negligent conduct b/c negligent person unaware of the risk
2) No one should be punished unless he has acted immorally
D. Unintentional Killings – Unlawful Conduct
1. Felony Murder Rule in Unlimited Form (felony + killing = murder)
a) Definition: guilty of murder if death results from conduct during the commission or attempted commission of any felony
b) Strict liability offense
c) People v. Fuller
ISSUE: Can an accidental death caused by a high-speed chase during the commission of a burglary be charged as M1 under FMR?
RULE: Yes. FMR imposes strict liability for deaths caused by the commission of one of the enumerated felonies, which include burglary, even when the death is accidental.
Criticism:
a) burglary was not dangerous to humans
b) Wrong to make accidental death in petty theft equivalent to M1
2. Policy Debate
a) Rationale for FMR:
1) Strongest possible deterrent to undertaking inherently dangerous felonies
2) Deter negligent and accidental killings during commission of felony
3) Reaffirms sanctity of human life and pay debt to society
4) Transferred Intent – felon’s intent to commit a felony transferred to homicide
a) Offense not of strict liability but of intent
b) MISUSE of transferred intent doctrine! Law should not recognize a transference of intent to cause one social harm to a different and greater harm involving same victim; mens rea separate and distinct!
5) easing prosecutor’s burden of proof bc no mens rea required ( better allocation of criminal justice resources
6) evil mind justifies severe punishment
7) consistent with retribution theory of punishment
8) Reflects societal judgment and attitudes that intentionally committed robbery that causes the death of a human being is qualitatively more serious than an identical robber that does not.
9) Expresses societal outrage
10) Reinforces societal norms
11) Condemnation
12) Express solidarity to V’s family
13) Clear definition of crime which makes it easier for juries
14) May deter intentional killings
15) Minimize utility of perjury
b) Criticism:
1) Can’t deter unintended killing
2) Punishment too extreme, should be based on culpability, not harm caused; should be proportional
3) Unsupportable legal fiction
3. Limitations on the FMR
a) Inherently Dangerous Felony Limitation
1) Limit rule to homicides that occur during the commission of felonies dangerous to human life
2) How to determine inherently dangerous?
a) 3 approaches
i) Consider felonies in abstract – ignore facts, analyze offense as defined in statute; i.e. theft, false imprisonment not inherently dangerous bc could have been committed in nonviolent fashion
ii) Consider facts & circumstances
iii) Hybrid approach – look at both
(3) People v. Burroughs – unlicensed doctor
RULE: The felony unlicensed practice of medicine can not sustain a murder conviction of FM b/c it is not a felony which is in the abstract inherently dangerous to human life.
(a) Alternative way of holding D liable would be to use criminal negligence standard
b) Independent Felony (or Merger) Limitation
1) FMR only applies if felony is independent, or collateral to, homicide
2) If felony is not independent, felony merges w/homicide and can’t use FMR
a) No bootstrapping of involuntary manslaughter (felony) into felony murder
3)
c) Res Gestae Requirement – FMR applies when killing occurs “during” commission or attempted commission of felony (FMR can apply even after felony is technically completed, i.e. during escape)
1) Temporal/geographical requirement – FMR does not apply if felony was conceived of after homicide (D accidentally kills V, then decides to take V’s property)
2) Causation requirement – must show felonious nature of conduct caused death i.e. airplane containing marijuana crashed in thick fog would’ve crashed anyway!
d) Killings in Perpetration or in Furtherance of felony
1) State v Sophophone – D charged w/felony murder after co-felon killed by cop
a) RULE: D should not be held responsible under FMR for death of a co-felon when killing was lawful act of police officer acting in line of duty
b) Policy – matter of fairness, shouldn’t have criminal charge lodged against D for lawful conduct of another!
e) Killing by Non-Felon
1) Agency Theory
a) FMR does not apply if an adversary (victim, police officer, bystander) to crime, rather than a felon, personally commits the homicidal act
b) FMR does apply when co-felons/agents/accomplices kill someone
2) Proximate Causation Approach
a) Felon liable for any death proximately resulting from the felony, whether shooter is a felon or 3rd party
b) Dependent on facts of case!
4. The Misdemeanor-Manslaughter Rule
a) Definition
1) Accidental homicide that occurs during the commission of an unlawful act not amounting to a felony
2) Involuntary manslaughter
b) Limitations
1) Some limit to inherent dangerous misdemeanors
2) Some courts limit it to mala in se (not mala prohibita)
E. Capital Murder
1. Constitutional and Policy Debate
a) Furman v. Georgia
1) Invalidated all death penalty statutes in all states. While no statute was found to be unconstitutional, none met the standards required to show that they were not arbitrary or capricious. ( Must be constitutional under 8th amendment.
a) Most states reformulated sentencing to overcome Furman, changed laws based on MPC § 210.6, provides for post-conviction sentencing hearing at which parties can introduce aggravating/mitigating factors
b) Gregg v. Georgia
1) ISSUE: Is the death penalty imposed by the Georgia Statute constitutional?
2) RULE: Yes. Consistent with societal standards, is not an excessive punishment, and the statute provides sufficient safeguards to prevent it from being imposed in an arbitrary or capricious manner .
a) Statutes in DP gave it safeguards that made it constitutional.
i) Bifurcated trial – pre-sentencing hearing
ii) Must find 1 out of 10 statutorily aggravating circumstances beyond a reasonable doubt.
a) Opens up for evidence for crime or D’s background to give individualized decision making.
b) DP not appropriate in all situations
i) Punishment cannot be excessive
a) No unnecessary, wanton infliction of pain
b) Not grossly disproportional to severity of the crime.
c) DP jurisprudence decided on 8th amendment, Framers of Constitution and thus is not unconstitutional
i) Evolving standards of decency ( cannot execute someone that is mentally retarded. But CAN make them sane and then execute.
ii) Not barbaric or unusual
iii) Proportionality of the crime
d) Society endorses DP
e) Allow for automatic appeal
f) Role of jury in sentencing
i) Maintains link between contemporary community standards
ii) Significant, reliable, objective index
c) For DP
1) Retribution and expresses society’s moral outrage
2) Deterrence of capital crimes
3) Punishment should be proportional to gravity of crime; morally required to use DP
d) Against DP
1) No longer morally tolerable in society
2) Cruel and unusual punishment
3) Degrades human dignity and worth
4) DP is excessive punishment
5) Actually costs more to have people on death row than to have life imprisonment
6) No correlation between DP and lower rate of capital crimes
7) Retribution -- DP can not be “morally good” and no human can be wicked enough to be deprived of life.
8) Possibility of executing someone that is innocent
2. Quest for Reliable Procedures – Lingering Racial Discrimination
a) McCleskey v. Kemp
1) ISSUE: Can a statistical study that shows a risk that capital sentencing is influenced by race prove that a specific death sentence is unconstitutional under 8th or 14th amendment?
2) RULE: No. It does not prove that his specific sentence was influenced by racial discrimination.
a) 14th amendment claim (Equal Protection Clause) - Must show that there was purposeful discrimination and then show that discrimination had a discriminatory effect on the person bringing the claim.
b) 8th amendment claim (cruel and unusual punishment) – no proof that sentence was racially based.
3) DISSENT: finding that D’s chances are significantly and negatively influenced by race and the race of the victim is at odds with rationality in capital sentencing.
b) Baldus study - Race was a significant factor in applying DP, especially race of the V.
c) Some level of imperfection will have to be accepted b/c of fallible human beings
1) Must accept racial influence on juries and prosecutors.
RAPE
A. Overview
1. Definition
a) Common Law
1) “Carnal knowledge of a woman forcibly and against her will”
2) General intent offense
b) Statutes: Traditional and Reform
1) Traditional (non-reform)
a) Sexual intercourse achieved “forcibly”, “against the will” of the female, or “without her consent”
b) Gender specific statutes
i) Only males are legally capable of perpetrating this offense
ii) Only females are victims are of the crime.
2) Reform
a) Prohibit several forms of nonforcible, but nonconsensual, sexual intercourse
i) i.e. unconscious or drugged female
ii) fraud in the factum
b) Gender neutral terms
i) Include all forms of sexual penetration
a) Some changed name from “Rape” to “criminal sexual conduct” or “sexual assault”
c) Statutory rape
i) Remains an offense, but states now apply 2 level approach
a) If very young girl, punishable as forcible rape
b) If older girl, it is a felony at a lesser degree.
c) Grading the offense
1) 1977, US Supreme Court ruled that death penalty is unconstitutionally disproportionate to rape
2) Today, rape treated as one of most serious non-homicide felonies - max penalty of life or a substantial term of years
d) Elements
1) Sexual intercourse by D, male, with V, female constitutes rape if committed:
a) Forcibly
b) By means of deception (fraud)
c) While V is asleep or unconscious
d) Under circumstances which V isn’t competent to give consent
2. Social Context
a) Social Harm of Rape
1) Original perspective
a) Rape rooted in ancient male concept of property
b) Marital immunity (no longer true)
2) Modern Perspective
a) Crime of violence and a personal privacy/autonomy offense
b) Battery of the female
c) Sexual invasion of the woman’s body
d) Assault on her psyche
e) Denies woman autonomy of determining when, whom and how she will have sexual intimacy
f) Hostile, humiliating, degrading act of sexual domination
3) Perception of the seriousness of the offense
a) Blaming the victim
i) Character and behavior of the female victim (affected male’s perceptions of responsibility for the crime)
a) “low” character ( view that she was partially responsible for rape (contributory negligence)
b) Credibility issue
b) Victim’s relationship to the rapist
i) Rape of a stranger considered more serious than rape of an acquaintance
c) Stigma attached to the crime
B. Forcible Rape
1. Force and Non-consent
a) Traditional Law
1) Rape requires proof female did not consent to intercourse and sexual act was “by force” or “against her will”
a) Lack of consent, but no force ( no rape conviction
2) “forcible”
a) If male uses/threatens to use force likely to cause serious bodily harm to female or 3rd party
b) Intercourse secured by non-physical threat does not constitute forcible rape
i) i.e. victim acts bc of superior power position of other party
3) Elements of nonconsent and force merge
a) At common law, victim must resist and resistance was overcome by force (or prevented from resisting by threats)
4) Fear vs. Threat
a) Fear – subjective emotion
b) Threat – objective act
c) Usually requires female’s subjective fear and some conduct by male that places her in reasonable apprehension for safety
d) Even if fears are unreasonable, male cannot knowingly take advantage of fear to have sex
b) Cases Applying Traditional Doctrine
1) Rules:
a) Nonconsent and force are not synonymous! Need both!
b) In order to prove force, female must physically (not merely verbally) resist the male (“no” isn’t enough), or male must use/threaten force to cause reasonable female to fear bodily injury if she were to resist sexual intercourse
2) State v Alston – couple in abusive relationship
a) Classic example of pre-reform rape law
b) sufficient evidence that V had not consented, but no evidence D used force or threats to overcome will of the victim to resist the sexual intercourse
c) RULE: force or threat of force must occur at time of alleged rape, must be used to obtain sexual intercourse
3) Absence of Yes as Force
a) Commonwealth v Berkowitz – sex between two college students
i) As in Alston, no consent, but the element of force said to be lacking
c) Law in Transition
1) Resistance Requirement
a) Greater initial use or threatened use of force by male aggressor, less resistance required by female
b) Criticism:
i) Some women resist, others “freeze” and “become helpless from panic and numbing fear.”
ii) Can be dangerous to resist
a) Substantial resistance may increase the risk of aggravated injury
iii) Some jurisdictions have abolished resistance requirement
a) Some have lowered barriers, only “earnest resistance” required or resistance “reasonable under circumstances”
2) Force – changing its definition (or abolishing requirement)
a) Force as merely a supporting evidentiary role? To help determine whether there was force and lack of consent?
b) Some Jx, forcible rape by lack of consent and w/nothing more than the physical force inherent in act of penetration
c) State v MTS – teen convicted of raping 15yo girl sleeping
i) RULE: Resistance is not a required element of rape, only need lack of permission!
a) Female not required to say “no” or resist in order to convert sex to rape, pro-victim
b) Absence of yes as force - Nonconsent becomes touchstone of criminal conduct
ii) Court puts burden on defendant, did he have honest and reasonable belief that sex is consensual?
iii) what conduct short of “yes” is required to prove permission?
a) POLICY considerations – protect women as much as possible but may come at a cost, punish those who honestly and reasonably believed sex was consensual, no mens rea!
(d) core purpose of modern rape law is to protect sexual autonomy of female
2. Withdrawn Consent
a) People v John Z - minor at party has sex w/girl, initially consensual
1) RULE: female’s withdrawal of consent nullifies any earlier consent given and subjects male to forcible rape charges if he persists in what has then become nonconsensual sex
2) Differs from Vela case - victim consents at time of penetration but thereafter withdraws consent, any force by assailant not rape
3) Roundtree case – outrage can occur at any point in intercourse
4) After she withdrew consent, did D have honest and reasonable belief that she did so? Should he have known? Mens rea!
3. Mens Rea
a) General intent offense
b) People v Sherry – 3 doctors at a party had sex w/woman
1) RULE: Not guilty of rape if D had honest and reasonable belief that V consented; mistake of fact defense must be based on a reasonable good faith standard
c) Issue of mens rea more significant in:
1) acquaintance rape prosecutions
2) Jx where resistance rule eliminated
3) Jx where conviction may be obtained in absence of force beyond that necessary for intercourse
d) dispensing w/reasonable mistake of fact doctrine converts rape to strict liability offense
e) use reasonable person standard in determining consent?
1) Hmong example – woman must protest to show purity, V rejected aspects of Hmong culture, her resistance genuine. D’s mistake of fact reasonable?
INCHOATE OFFENSES
A. Overview to inchoate conduct
1. Six stage process to commit crime (CEIPSC)
a) Conceives idea of committing a crime
b) Evaluates idea
c) Fully forms intention to go forward
d) Prepares to commit the crime (getting supplies)
e) Starts the commission of the offense.
f) Completion of crime
2. Policy issues
a) For
1) Longer police abstain from intervention, greater the risk an actor will complete an offense
b) Against
1) Risk of convicting innocent people for suspicious looking behavior
2) Punishing for criminal thoughts?
3) Person with less than fully formed intent will be arrested
B. Attempt
1. General Principles
a) Two types
1) Complete (but imperfect) attempt– actor performs all acts she set out to do, but fails to attain criminal goal (D intending to kill V, buys gun, loads it, drives to V’s home, fires at but misses V)
2) Incomplete attempt – actor does some of acts necessary to achieve criminal goal, but quits or prevented from continuing (police officer interrupts)
b) Definition:
1) Occurs when a person, with the intent to commit an offense, performs any act that constitutes a substantial step towards the commission of the offense.
a) Substantial step – any conduct that’s reached 5th stage of criminality, i.e. passed stage of preparation and moved to point of perpetration
2) Attempt is a specific intent crime
c) Punishment
1) Overview
a) Common law – attempt is misdemeanor
b) Attempt to commit felony is graded as felony, but typically treated as lesser offense than substantive crime
2) Almost always punished less severely than completed crimes
a) CA generally has max sentence of half the sentence of completed crime
b) In attempt cases, there is less harm, so less retribution
c) Want to encourage people to abandon the plan
3) MPC View
a) Subjectivist view - once there is clear evidence of criminal intent (mens rea), you are as culpable as someone who committed crime and should be sentenced similarly; less focus on actus reus
d) Relationship of an attempt to target offense
1) Some courts: criminal attempt and substantive crime are mutually exclusive, either commits crime or unsuccessfully attempts to commit it, never does both
2) If commits target offense, may not be charged w/both offense and attempt; criminal attempt merges with substantive crime ( Rule of Merger
e) Rationale for Punishment
1) Why and How much?
2) Utilitarian
a) Deters criminal act
3) Retribution
a) Restores public order which was disrupted by criminal act
b) Impose duties of self-restraint
c) What they intended to do was wrong. ( no moral difference between crime and attempted crime
f) Public Policy
1) Criticism of Punishment
a) At what point does it make sense to intervene in a case?
i) want to be sure there was a criminal attempt. Supports the idea that we should wait to intervene
ii) on the other hand, don’t want to wait until last minute to protect society, intervene earlier
iii) don’t want to hold that the minute you have a plan to do something that you have intent. Want to give people the opportunity to abandon
b) Weakens stigma and deterrent effect of criminal law if we punish non harmful conduct
c) In the absence of harm, there is nothing to seek retribution for.
2. Mens Rea
a) Criminal attempt involves two intents:
1) Actor must intentionally commit the acts that constitute the actus reus of an attempt (intentionally perform acts which bring her in proximity to commission of substantive offense)
2) Must perform these acts with the specific intention of committing the target crime
a) Attempt is specific intent crime, even if substantive crime is a general intent offense
b) “Result” crimes – offense defined in terms of a prohibited result
1) Person not guilty of an attempt unless her actions in furtherance of the prohibited result are committed with the specific purpose of causing the unlawful result
2) Attempted felony murder is not a recognized offense because the offense lacks specific intent to kill.
3) Attempted manslaughter
a) Can be convicted of attempted voluntary manslaughter if a person in such an emotional state attempts to kill the provoker.
b) Can not be convicted of involuntary manslaughter because it is based on the mens rea of criminal negligence or some other state of mind other than intent to kill.
4) Because of specific-intent nature of criminal attempt, prosecutor sometimes required to prove actor possessed higher degree of culpability than required to commit target offense (i.e. blindfolded D fires into occupied room, depraved heart murder possible, attempted murder NO!)
5) Only specific intent to kill satisfies the intent element of the crime of attempted murder (People v. Gentry)
c) Conduct crimes
1) Can convict of attempt as long as actor possesses the specific intent to engage in the conduct
3. Actus Reus
a) US v. Mandujano - Mere preparation alone is not enough. (Unequivocality Test) There must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature.
1) Weigh factors to see if act is past preparations
a) sufficiently close to the substantive crime or
b) close enough to potential irreparable harm so as to preclude any further postponement of official intervention or
c) one is reasonably certain that he is firmly committed to illegal venture
d) act is sufficiently unambiguous to demonstrate the actor’s illegal intent.
b) Objectivist – conduct should not be punished unless its criminality is objectively discernible at the time that it occurs.
1) Neutral 3rd party can recognize criminal activity
2) Objectivists fear that subjectivism may result in criminal liability for little more than bad thoughts
c) Subjectivist – should focus on actor’s mens rea, any conduct that corroborates mens rea should suffice for criminal attempt
d) Policy
1) Difficult line drawing between noncriminal preparation and criminal attempt
2) Need to criminalize acts of preparation that, coupled with intent, have reached point that’s dangerous to public
3) BUT if too early police intervention innocent persons, those w/barely formed criminal intentions (persons who might voluntarily turn back from crim. activity) may be arrested
4. Tests to distinguish Preparation from Perpetration (attempt)
1) Two categories
a) How much remains to be done
b) How much has already occurred
2) Important factors in tests
a) Whether act is dangerously close to causing tangible harm, so police intervention can’t be delayed
b) Seriousness of threatened harm – more serious crime, further back law should look
c) Strength of mens rea – more clear the intent, less proximate acts need to be to consummation of offense
Tests (listed in order of acts to be performed)
3) Unequivocality Test – res ipsa loquitur test (act speaks for itself)
a) See above
b) Attempt committed when actor’s conduct manifests an intent to commit a crime
c) Consistent w/objectivist goal of reserving criminal liability for those whose conduct manifests criminality and thus causes social harm
4) Physical Proximity
a) Overt act required for an attempt must be proximate to completed crime, or directly tending toward completion of crime, or must amount to commencement of consummation
5) Dangerous Proximity Test
a) Can convict if conduct is in “dangerous proximity to success”
b) Consider nearness of danger, greatness of harm and degree of apprehension felt
c) How dangerously close are we?
i) People v Rizzo
ISSUE: Do the acts performed by Rizzo constitute the crime of an attempt to commit robbery in the first degree?
RULE: For an act to constitute and attempt, it must come very near to the accomplishment of the act
a) Must have dangerous proximity to success.
ii) Ds driving around trying to find payroll victim to rob; although many steps left, had criminal intent
a) Criticism – Rizzo’s found not guilty, but clearly had criminal intent
6) Indispensable Element Test
a) Variation of proximity tests, emphasizes any indispensable aspect of criminal endeavor over which actor hasn’t yet acquired control
7) Probable Desistance Test
a) Test requires judgment on whether actor had reached a point where it was unlikely that he would have voluntarily desisted from his efforts to commit crime
b) Appears to be little more than physical proximity test
8) Last Act Test (old standard)
a) Criminal attempt occurred only when actor performed all acts she believed were necessary to commit target offense (D pulls trigger of gun, sets fire to home, etc.)
b) Criticism
i) Would be virtually impossible to prevent commission of substantive crime
ii) Subjectivist – actor’s dangerousness can be ID’ed well before last act
iii) Objectivist – social harm can occur, criminality of actor’s conduct discerned, before final act
c) Commonwealth v Peaslee - man wants to burn down building, intent not firm
i) RULE: D must have his hand in the final act to be guilty of attempt
9) Model Penal Code Test
a) Takes hybrid approach
b) Don’t need last act, don’t need dangerous proximity, can’t be mere preparation
c) Need evidence of both mens rea and actus reus
d) Actus reus – substantial step that corroborates intent, mens rea
e) Shifts focus to what has already been done, vs. what remains to be done (proximity tests)
5. Legal Impossibility
a) Overview
1) At common law, legal impossibility is a defense, factual impossibility is not
2) Because of legal confusion and influence of MPC, most jurisdictions do not recognize either as a defense
a) MPC abolishes distinction between factual and legal impossibility
b) MPC requires that D’s act corroborate his mens rea
3) two types
a) Pure Legal Impossibility
b) Hybrid Legal Impossibility
b) Factual Impossibility
1) Person’s intended end constitutes a crime, but fails to consummate offense bc an attendant circumstance unknown to her
a) i.e. pickpocket putting her hand in victim’s empty pocket
b) NOT a defense
c) Pure Legal Impossibility
1) Person performs a lawful act w/a guilty conscience; believes she is committing crime but she is not
2) Example: male touches woman on breasts w/out consent, believing this constitutes rape. There is no rape, and he won’t be guilty of attempted rape, simply because he believes he has “raped” victim
3) Basis for acquittal is principle of legality
a) We shouldn’t punish people, no matter how culpable/dangerous, for conduct that doesn’t constitute charged offense at time of action ( similarly wrong to convict person of attempt to violate law that’s not encompassed by D’s conduct
d) Hybrid Legal Impossibility
1) Actor’s goal illegal, but commission of offense is impossible due to factual mistake (not simply a misunderstanding of law) regarding legal status of some attendant circumstance that constitutes element of charged offense
2) Includes both factual and legal aspects to it
3) Courts have recognized defense of legal impossibility if D:
a) Receives unstolen property believing it was stolen
b) Tries to pick pocket of stone image of a human
c) Offers a bribe to a “juror” who isn’t a juror
d) Tries to hunt deer out of season by shooting stuffed animal
4) Each example there was factual mistake, but it relates to legal status of D’s conduct
5) Not guilty (and can’t be) of “receiving stolen property w/knowledge it’s stolen” unless property is “stolen” in character
6) Hybrid legal impossibility may reasonably be characterized as factual impossibility!
6. Abandonment
a) Recognized if D voluntarily and completely renounces criminal purpose
1) Voluntary when it is result of repentance or genuine change of heart
2) Not voluntary if:
a) motivated by unexpected resistance
b) absence of instrumentality essential to completion of crime
c) some other circumstance that increases likelihood of arrest or unsuccessful consummation of crime
3) no defense if completed last act or caused serious bodily harm
4) defense allowed on subjectivist grounds
a) encourages desistance by attempter
b) by voluntarily and completely abandoning offense, shows she has less dangerous character than other attempters who quit out of fear of arrest
5) not a common law defense to attempt
6) MPC recognizes defense of abandonment, so long as abandonment was voluntary
a) Commonwealth v McCloskey – man abandons plan to escape prison
RULE: voluntarily abandoning criminal offense exonerates D from criminal liability
POLICY: knowledge that voluntary abandonment exonerates one from criminal liability provides incentive to others to desist prior to completion of a crime
CONSPIRACY
A. Definition - mutual agreement between 2 or more persons to commit criminal act or to accomplish legal act by unlawful means
1. Intent – Mens rea
a) Intent to combine w/others
b) Intent to accomplish illegal objective
c) To commit a lawful act in an unlawful manner (2 people agree to perform immoral act, but not illegal, may be punished for common law conspiracy, if just 1, not punished)
1) Act that’s basis of agreement need not constitute a crime
B. Overview
1. Rationale
a) Greater potential for criminal activity when there are many people
b) More likely to follow through when someone else involved
c) Allows more complex crimes to be committed - more people, more minds
d) Increased likelihood of commission of other crimes unrelated to original purpose
2. No Merger – punish for both substantive crime and conspiracy
3. Murder and conspiracy to commit murder are punished equally in CA!
a) BUT CA attempt carries half punishment of completed crime
4. Policy Issues
a) For Conspiracy
1) Allows police intervention at much earlier point
2) Used to discourage multi-member criminal acts, 2 are more dangerous than 1
3) Enhances the exposure to criminal liability b/c can be convicted of illegal agreement AND completed offense
4) Hearsay admitted
a) Anything co-conspirators say can be attributable to you
b) Can bootstrap evidence
5) Broad vicarious liability and far-reaching
6) Increased probability to be convicted for guilt by association
7) Agreement to commit a misdemeanor can be a felony
8) Extend SOL
b) Criticisms against
1) Crime is so vague it almost defies definition
2) Person may be convicted of offense well before she commits any act in perpetration of a substantive crime
3) Crime always predominantly mental in composition
4) Law would lose sense of proportion if, b/c of conspiracy, each conspirator held accountable for offenses of other conspirators when unaware of these offenses
5) Dangers from conspiracy never empirically verified
5. Formation
a) Express agreement not needed, each person separately intends to participate w/shared intent and mutual goal
b) May be established through circumstantial evidence, inferred from development and collocation of circumstances
c) Conspiracy complete upon formation of unlawful agreement
1) Overt act not needed in some Jx’s!
2) “Overt Act” Jx’s – any act, may be sufficient, need not be illegal
6. Spectrum of Criminal Conduct
a) Solicitation >>Conspiracy>>Attempt>>Substantive Crime
1) Solicitation – when solicitation is made or advice is given with the specific wrongful intent to influence another or others to commit the offense. Agreement is not necessary
2) Conspiracy – formed when person solicited agrees and overt act is performed
3) Attempt – overt act done with the specific intent to commit the offense
C. Cases
1. Conspiracy is basis for holding person accountable for completed crimes of others. (co-conspirators) ( can attach liability
a) RULE: If guilty of conspiracy, guilty of substantive crime if committed by others within conspiracy (Pinkerton)
b) One problem of Pinkerton rule is it makes relatively minor parties in a large conspiracy responsible for any completed offenses over which they had little or no control
1) Anderson – abortion case, held person who referred 1 person to receive abortion just as culpable as doctor who committed 26 abortions
2) Broad deterrent effect, occupational hazard? Too severe, unproportional?
2. Krulewitch – out of court statements by one conspirator against another are not admissible unless made in furtherance of the objectives of a going conspiracy
a) Risk of Bootstrapping (if allow out of court statements unrelated to objectives of going conspiracy) – elevating less serious crime into more serious crime because evidence of less serious crime has already been submitted! Bootstrap misdemeanor into felony by virtue of conspiracy!
3. Mens Rea
a) Common law – conspiracy is specific intent crime
b) RULE: A conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice. People cannot agree to commit an unintentional crime. (People v. Swain)
c) RULE: person who supplies a product to another knowing it’s used as part of a crime, may be convicted of conspiracy (unless only a misdemeanor is involved) People v Lauria (telephone service for prostitutes)
1) Court said needed 2 factors:
a) Intent to further illegal objective (via direct evidence or personal stake in operations, no other legitimate use, disproportionate business volume, etc.)
b) Knowledge of illegal activities
2) Court wants to avoid bootstrapping a misdemeanor into felony! Assign proper punishment based on extent of criminal liability!
4. Actus Reus
a) RULE: co-conspirators are guilty of criminal acts of all member of conspiracy in furtherance of agreement Commonwealth v Azim
b) No express agreement required, court inferentially established conspiracy based on 4 factors
1) Association – w/alleged conspirators
2) Knowledge – of commission of crime
3) Presence – at scene of crime
4) Participation – in object of conspiracy
c) Accomplice and conspiratorial liability are not synonymous. One can be an accomplice in a crime without being a conspirator. In accomplice liability, not necessary to show an agreement or consensus in the same sense used in describing the agreement of a conspiracy. (Commonwealth v Cook – rape of girl by 2 brothers)
1) Accomplice liability – must perform affirmative act in furtherance of the crime
2) Can aid and abet without knowing person who did it
3) Conspiracy – agreement alone is sufficient, need advance/prior agreement
4) Crime of conspiracy separate from offense
5) Spontaneity of conduct can show lack of agreement
6) For conspiracy need more proof than just participation in offense
7) Agreement can be proved by circumstantial evidence before the crime
8) One can be accomplice without being a conspirator
5. Structure of Conspiracies
a) Wheel – in the center (hub) is person who transacts illegal dealings w/other people (spokes)
1) Must be a rim around the spokes connecting them into a single conspiracy
2) If no rim, then spokes are just chain conspiracies
3) In a wheel conspiracy, each spoke may be unaware of other spokes and accordingly, each actor may not be liable for action of other spokes Kilgore v State
b) Chain
1) Several layers of personnel dealing with a single subject matter, as opposed to a specific person.
2) Business like criminal activity where each person or group in the conspiracy has specialized responsibilities. (i.e. narcotics operation)
c) Chain-Wheel
1) very large conspiracy, structure has features of both a wheel and a chain.
2) Importers, middlemen, geographically disparate retailers
6. Wharton Rule – forbids adding conspiracy charges to certain crimes i.e. bigamy, incest, adultery which by definition, require two people
a) Exception – 3rd Party Rule - when conspiracy involves the cooperation of a greater number of persons than is required for commission of substantive offense, can be charged w/both substantive offense and conspiracy (Iannelli)
7. Withdrawal
a) RULE: A conspiracy is complete after agreement and commission of an overt act, withdrawal not a defense to the formation of conspiracy
b) BUT withdrawal avoids liability for target offense and subsequent crimes committed by co-conspirator (People v Sconce)
1) Courts strict in requiring proof – must communicate withdrawal to each of fellow co-conspirators, some courts require her to successfully dissuade others from pursuing criminal objectives
2) MPC – provides affirmative defense if renounces crim purpose, thwarts success of conspiracy, demonstrating complete, voluntary renunciation of criminal intent
a) Drafters rejected no-defense rule bc voluntary renunciation negates actor’s dangerousness
ACCOMPLICE LIABILITY (AL)
A. Overview
1. Definition
a) S is an accomplice of P in the commission of an offense if he intentionally assists P to engage in the conduct that constitutes the crime
2. Common Law
a) Principal in 1st degree - personally commits crime (shooter/doer)
b) Aider & Abetter:
1) 2nd degree - accessory at the fact
2) 3rd degree - access. before the fact
c) Accessory after the fact - helps person dispose of good, hide, escape (separate crime from accomplice liability, more like obstruction of justice)
3. AL really deals with a) and b)
a) Is derivative in nature, primary party’s acts (P) become secondary party’s acts (S). P guilty of attempted robbery, than S also guilty of attempted robbery
4. Difference between AL and conspiracy:
| |
|Accomplice Liability |
|Proof (less required than conspiracy) |
|Mens Rea – intend substantive offense and intend to assist (specific intent crime) |
|Actus Reus – must actually aid crime |
|i.e. if encourage an assault, guilty! BUT if encourage assault & person committing assault is deaf, not guilty! Must be |
|successful/effective! |
a) Conspiracy
1) Proof (more required than for AL)
a) Mens Rea – must agree and intend to agree
2) More severe bc subject to 2 criminal convictions & 2 separate sentences
3) Conspiratorial liability broader form of liability than accomplice doctrine bc
a) under AL, person only responsible for natural and probable consequences of particular crimes in which person has intentionally assisted, vs held accountable for natural and probable consequences of conspiracy, which may result in extensive liability (Pinkerton Doctrine)
4) ****Key to conspiracy – agreement between 2 or more persons to participate in commission of a crime, actual assistance is not required!
a) AL requires proof that actor at least indirectly participated/assisted in crime, an agreement to do so is not needed!****
B. Cases
1. RULE: accessory liability cannot be determined prior to, and cannot be greater than, the principal’s (State v Ward)
2. RULE: defendant cannot be labeled “lookout” when he lacks requisite intent to help commit crime (State v Hoselton)
3. Note on Intent
a) If it was purpose of one giving advice to influence the other person to commit the crime, he is an accomplice, if that was not his purpose, he is not liable
4. Knowledge
a) If have knowledge and intent to participate (sell drugs if pharmacist, know it’s being used to create illegal drugs) will satisfy mens rea for both AL and conspiracy!
1) Look at circumstances/facts – does it support finding of knowledge?
2) If retailer – high, disproportionate volume of goods? Some stake in illegal business?
3) Exception – products liability, just need knowledge & stake in outcome for AL and conspiracy! Do not need intent to commit substantive offense
a) i.e. selling drugs, pharmacist does not need intent to commit substantive offense if has knowledge & stake in outcome!
b) Selling guns – analogous to selling drugs, may not have intent to commit a dangerous offense but may be reckless, (conscious awareness of risk, Columbine case)
5. Natural and Probable Consequences
a) Doctrine expands liability
b) Common Law
1) If S is an accomplice in the commission of crime A, he is also responsible for every other crime perpetrated by the primary party that was a natural and probable consequence of crime A
a) Liable for crime B if, in the ordinary course of things, crime B might reasonably ensue from events
b) Acts cannot be merely conceivable, must be reasonably foreseeable
2) 4 Q’s
a) Did P commit target crime A?
b) If yes, did D intentionally assist in commission of crime A? (was he accomplice?
c) If yes, did P commit any other crimes?
d) If yes, although not contemplated or desired by S, reasonably foreseeable consequences of crime A?
c) MPC: Does not expand liability through natural and probable consequences doctrine
6. Actus Reus
a) Accompaniment and observation are not sufficient acts to constitute “aid” to satisfy the requirements for accomplice liability
1) Aid – one who assists, supports, or supplements efforts of another
2) Abet – one who instigates, advises, or encourages commission of a crime
b) What facts elevate mere presence?
1) Stimulates, encourages, facilitates i.e. acting as lookout
2) Mere presence + flight, without evidence of agreement or assistance ( no crime!
7. Abandonment
a) Requires
1) Voluntarily Abandon
2) Make good-faith effort to prevent furtherance of crime
a) If gave weapon, must regain possession or neutralize it
b) If abandon, can avoid accountability for subsequent criminal acts of primary party
1) Cannot abandon attempt crimes bc they’ve already been committed!
DEFENSES TO CRIMES
A. Categories of Defenses
1. System of defenses
a) Failure of Proof Defenses
1) Negate element required by definition of the offense
a) i.e. Mistake of fact
b) Offense Modifications
1) Defense even when all elements of the offense are satisfied, but actor is not guilty because he has not caused the harm or evil sought to be prevented by the statute defining the offense.
a) Ex. Parent paying ransom for their child
b) Victim of crime can’t be held an accomplice
c) Justifications
1) Harm is outweighed by the need to avoid an even greater harm or to further a greater societal interest
2) Did the right thing under the circumstances
3) Justification negates the social harm of an offense
a) i.e. justified arson to serve as firebreak, saves lives
d) Excuses
1) Did the wrong thing, harmed society, but excused under the circumstances
2) Excuse negates moral blameworthiness of actor for causing harm
a) i.e. under duress, intoxication, insanity, infancy, honest and reasonable belief
e) Nonexculpatory Public Policy Defenses
1) Actor may have a defense because statute of limitations may bar conviction.
2) By foregoing that conviction, society benefits by furthering other, more important public interests
3) D’s conduct is harmful, D is blameworthy
2. Justification and Excuses
a) Should distinguish bc can help develop coherent and morally just rules of criminal responsibility
1) Sending Clear Messages
a) Expresses moral values of community
2) Providing Theoretical Consistency in the Criminal Law
3) Burden of Proof
a) Justification – Govt carries BoP (justified conduct is legal conduct)
b) Excuse – D carries BoP (up to D to persuade jury that it should excuse her unjustified, socially injurious behavior)
4) Accomplice Liability
a) Justification - Accomplice and D acquitted
b) Excuse – D may be acquitted (i.e. insanity) but not Accomplice
B. Principles of Justification
1. Self-Defense
a) General Principles
1) Self defense contains:
a) Necessity
b) Proportionality – cannot use force that’s excessive in relation to harm threatened
c) Reasonable Belief Rule
i) Imperfect Self Defense – if honest in belief but unreasonable, some Jx’s will bring murder down to manslaughter
2) Necessity components from US v Peterson case:
a) Actual/apparent threat
b) Unlawful/immediate threat
i) Unlawful conduct – the “victim” in self-defense trial is attacking you in unlawful way
ii) Your conduct (defendant) is justified, it is morally right result
iii) If it is excused, action is wrong, but courts will overlook it. i.e. one w/mental health problems, one acting under provocation
c) Belief in imminent peril of death or serious bodily injury (SBI)
d) Use of deadly force necessary
e) Belief honest & reasonable
3) Common Law Definition
a) Belief honest & reasonable
b) Use of deadly force necessary to prevent
c) Belief in imminent peril of death or serious bodily injury (SBI)
4) KEY ISSUE 1: Aggression nullifies self-defense - the aggressor in conflict cannot invoke necessities of self-defense
a) Person is aggressor even if merely starts non-deadly conflict
b) Incorrect to state 1st person who uses force is always aggressor ( if brandish weapon in threatening manner, but does not use, is aggressor
c) Person no aggressor if conduct, no matter how provocative, is lawful
d) Jury decides if D loses right to self defense
5) KEY ISSUE 2: Retreat Doctrine – forbids use of deadly force when safe retreat possible
a) Majority of Jx say no duty to retreat, small number of Jx do have duty
b) Duty to retreat in favor of D, can't expect reasoned judgment when faced w/a knife in your face
c) EXCEPTION – Castle Doctrine, if in home do not need to retreat
i) KEY Q: Is garden, patio, stable part of “home”?
ii) Upheld in minority of Jx that have a duty to retreat
iii) If aggressor, cannot use Castle Doctrine
6)
b) The Reasonable Person
1) Person may only defend himself if he subjectively believes that deadly force is required (subjective) and a reasonable person would also believe that it is appropriate under the circumstances (objective)
2) MPC: Honest, but unreasonable fear enough, unless reckless or negligent
a) If negligent or reckless, results in lesser crime
3) Generally, standard is “reasonable person in actor’s situation” – subjective/objective standard
a) Relevant evidence to evaluate D’s state of mind (reasonableness of fear)
i) Physical attributes
ii) Prior relevant experiences with victim (Wanrow) or with others (Goetz)
4) One thing to consider physical attributes, another to consider actor’s mental or emotional characteristics in “reasonable person”
a) Risk that message of crim law will be lost if reasonableness of actor’s conduct is measured by standard of one who may be unreasonable by nature!
b) Simon case – elderly man injures Asian male, feared Asians, believed they were experts in martial arts
c) Battered Women’s Syndrome (BWS)
1) Types
a) Confrontational homicide – can D introduce history of abuse evidence & offer expert BWS testimony
b) Non-confrontational homicide
i) Imminence – D entitled to self-defense in absence of evidence of aggressive act by decedent at time of killing?
ii) Can D introduce BWS to show she subjectively & objectively believed actions were necessary to combat imminent deadly assault?
c) Hire 3rd party to kill batterer
2) Non-Confrontational Homicides
a) Courts divided on if self-defense may be claimed if no evidence of threatening conduct by abuser at time of homicide
b) Majority seems to be instruction is unjustified
c) Norman case – Supreme Court of NC says abuse against D was not imminent
3) Cycles
a) Tension-Building Phase - certain cues woman picked up from man, she knew he would beat her. Needed expert to explain cycle to jurors, at advanced stage of tension-building phase
b) Acute Battery Incident
c) Conciliatory Phase
4) “Learned Helplessness” – remains in relationship rather than seek help
d) Risk to Bystanders
1) Generally, courts apply transferred-justification doctrine, similar to transferred intent
a) D’s right of self-defense “transfers” (just as his intent to kill does) from the intended to the actual victim
b) Not absolute rule! Some courts – if D, acting justifiably, fires weapon wildly or carelessly, D may be guilty of manslaughter of bystander, or reckless endangerment (if no one killed)
e) Differences in MPC
1) Uses actor’s subjective belief
a) Incorporates reasonableness component (…unless negligence or reckless)
2) Immediate threat (instead of imminence requirement)
a) Allows force sooner than in common law.
3) Retreat
a) Can use deadly force if tried retreating, or
b) No safe place to retreat to, or
c) In home or work place.
4) If aggressor, must withdraw from conflict to regain defense of self-defense
5) Self defense not available if reckless or negligence as to bystander
2. Defense of Others
a) General rule
1) Defense of another person is a defense if proportional force is used with honest and reasonable belief
a) Honestly and reasonably believed that 3rd party needed help and 3rd party would have been justified in protecting self.( based on reasonable appearances rule
i) Pro
a) Afford protection to a defender who acts while injury may still be prevented.
b) People are not punished for their good motives.
ii) Reasonable belief under the circumstances
2) Min: “alter ego” rule – intervener could only use force to defend a 3rd party if the party being defended would in fact have been justified in using force. ( D must be correct
a) Ex. If X had no right of self-defense, even though a reasonable person would have believed that X did, D is not justified in using force to protect X.
b) “the right of a person to defend another ordinarily should not be greater than such person’s right to defend himself”
c) only a defense if 3rd would have a legitimate claim of self-defense
d) Criticism
i) Onlookers hesitate to help.
b) MPC
1) Intervenor (D) justified in using force in order to protect 3rd party if:
a) D uses no more force to protect X than D would be entitled to use in self-protection
b) D believes that under the circumstances, X would be justified in using self-defense.
c) D believes that her intervention in necessary for X’s protection.
2) Subjective belief is enough, BUT if negligent or reckless in belief, you will have liability that is compatible with negligent or reckless criminal conduct.
3) Not required as a peace officer to do anything but to continue arrest
a) If killed someone that is justified in using self-defense, that killing is not justified
3. Defense of Property
a) Overview
1) Common Law (broad) – deadly force permissible when there is a reasonable belief that force is necessary to prevent an imminent & unlawful entry
a) Some Jx’s, also need an additional requirement: intruder intends to injure or commit a felony
2) Common Law (narrow) – above requirements PLUS the felony must be a forcible felony (crimes of violence + surprise; i.e. burglary, robbery, murder, rape, arson)
3) Modern View – deadly force can never be used to protect property, only can use non-deadly force
4) Person in possession of real or personal property is justified in using nondeadly force against a would-be dispossessor if he reasonably believes that such force is necessary to prevent imminent and unlawful dispossession.
5) May not use more force than reasonably appears necessary
a) Min: may not use force until he tried to avoid a physical conflict by requesting desistance by would-be dispossessor.
6) May not use force beyond that which the urgency of the occasion reasonably requires
7) May only use deadly force if to protect self from unlawful deadly attack, not on the basis of interest in property. (Ceballos)
a) Limited to “atrocious” felonies with violence or in some states, enumerated felonies
i) Murder, mayhem, rape, robbery
ii) Not burglary under all circumstances
4. Necessity (“Choice of Evils”)
C. Defense of Necessity (“Choice of Evils”)
1. Justification defense
a) Defense of last resort
b) Residual justification
c) Catch-all defense
d) Similar to executive pardon – may be technically guilty, but if there are unusual circumstances, may be pardoned.
2. Definition
a) If circumstances compel a choice among various evils, an actor should not be punished if he chooses least harmful option
3. General Rules
a) ½ of states recognize the defense
b) Nelson Factors for Necessity
a) Act to prevent a significant evil
b) No adequate alternative
c) Harm caused not disproportionate to harm avoided
c) Justified in violating criminal law if 6 conditions met:
1) Faced with clear and imminent danger
a) Spread of AIDS is not clear and imminent danger to justify needle exchange that violated statute (Commonwealth v. Leno)
2) D must expect, as reasonable person, that actions will be effective in abating the danger that he seeks to avoid; there is direct causal relationship between actions and harm to be averted
a) Ex. Inmate flees confinement bc of fire, saves own life
3) No effective legal way to avert harm
a) Nelson v State – truck stuck in mud, D had lawful alternatives, people drove by, offered physical aid, rides, offer to call tow trucks, police
4) Harm that D will cause by violating law must be less serious than harm he seeks to avoid
a) Balancing of harms
i) Weighed against harm foreseeable at the time, not the harm that actually occurs
ii) Whether D’s value judgment correct as determined by judge/jury
5) Lawmakers must not have anticipated choice of evils and determined balance to be struck between competing values, in manner which conflicts w/D’s behavior
a) Ex. Using medical marijuana after legislature rejected the proposition
6) Must not have wrongfully placed self in situation where he would be forced to engage in criminal conduct
d) Limitations
1) Some states limit defense to emergencies created by natural forces
2) Necessity defense does not apply in homicide cases
3) Some states limit the defense to protection of persons and property, not reputation or economic interest
4) Actor must actually believe that his conduct is necessary to avoid an evil.
a) Ex. No defense if giving illegal prescription drugs to someone, when it turns out that they really needed it.
5) Must balance the harm. An equal or lesser harm will not suffice ( jury question
6) Defense won’t succeed if competing values already foreclosed by legislature
e) MPC
1) Balancing of harms is jury question
2) More broad than common law - rejects common law imminency requirement
a) BUT, no defense if crime involved can be committed recklessly or negligently
3) Defense not limimted to emergencies created by natural forces, may be employed in homicide prosecutions
f) Jury Nullification
1) Jury has power to nullify the law, but does not have right to.
D. Principles of Excuse
1. Duress
a) Overview
1) Duress is an excuse; an understandable response to pressure
2) Volitional act but…overcome by power of coercion
3) KEY is mens rea
a) Even though not the best result, D excused bc act was the result of unfair pressure on his mental state ( intent is faulty
4) Exception to Duress ( Murder
b) Elements
1) Person will be acquitted of any offense (except murder) if act committed under following circumstances:
a) Another threatened to kill/grievously injure actor or 3rd party (particularly near relative) unless she committed offense
b) Actor reasonably believed threat was genuine
c) Threat was present, imminent & impending at time of criminal act
d) No reasonable escape from threat except through compliance
e) Actor not at fault in exposing herself to threat
c) Conditions
1) Threat must emanate from human being
a) If D breaks into home bc of rabid dog or lightning, may claim defense of necessity against trespass, but not duress
2) Coercer must threaten to cause death or SBI (“deadly force”)
3) Deadly force must be present, imminent & impending
4) Question if threat directed at person unrelated to actor
d) Contento-Pachon – man involved in drug smuggling
1) Duress elements in case:
a) Immediate, impending threat (usually by another person)
b) Well grounded fear that threat would be carried out (is real)
c) No reasonable opportunity to escape
e) MPC
1) Need not be deadly force
2) No imminence requirement
3) Not limited to non-homicidal situations like common law, can be raised in murders
4) Doesn’t require that imperiled person be D or member of her family
5) Consistent web throughout MPC rules, focus on blameworthiness of actor vs. focusing on result
2. Intoxication
a) Definition
1) Disturbance of mental or physical capacities resulting from introduction of any substance into body i.e. alcohol, drugs, etc.
2) Modern trend – limits scope of intoxication defense
b) Considerations
1) How did D become intoxicated?
a) Voluntary
b) Involuntary
2) What way does D claim intoxication affected his culpability?
a) Did not form requisite state of mind?
b) He was unconscious when acted, no voluntary act?
c) Intoxicants rendered him temporarily insanse
3) What type of offense is D charged? (common law rules differ depending on nature of mens rea)
a) General intent
b) Specific intent
c) Strict liability
c) Relationship to other defenses
1) Diminished capacity – actors suffers from mental illness, not intoxication
2) Intoxication & mistake of fact frequently overlap!
d) Voluntary Intoxication (VI)
1) Intoxication is voluntary if actor is culpable for becoming intoxicated
a) Knowingly ingests a substance that he knows, or should know, can cause him to become intoxicated
b) Courts unsympathetic to claims that substance had unexpected effect on him
2) Common Law - Intox resulting from alcoholism or drug addiction considered voluntary
3) VI never excuses criminal behavior
a) BUT condition that intox causes, i.e. clouded mental state, may serve as exculpatory basis in some circumstances
4) When VI may be exculpatory:
a) Not excuse defense but a failure of proof claim
i) As result of intox, lacked mens rea required for offense
b) Trad’l Common Law
i) Distinction between general and specific intent crimes
ii) General Intent – VI not a defense to general intent crimes
iii) Specific Intent – VI is a defense to specific intent crimes
c) Criticism
i) Shouldn’t draw distinction b/c if D arrested before act, he is charged with specific intent offense, and may introduce evidence to negate specific intent
ii) D’s are equally drunk
iii) D’s are equally culpable
e) Involuntary Intoxication (II)
1) Definition: actor is not to blame for being intoxicated
a) Coerced intoxication – left in desert if doesn’t drink
b) Intoxication by innocent mistake - breath freshener is cocaine
c) Actor becomes unexpectedly intoxicated from prescribed medicine
d) Pathological intoxication – temporary psychotic reaction triggered by consumption of alcohol, only applies if didn’t know had condition
2) Person who is involuntarily intoxicated is entitled to acquittal in all circumstances where voluntary intoxication is a defense
a) D also excused if involuntary intoxication made him temporarily insane
f) MPC
1) Doesn’t distinguish between general and specific intent
2) Intoxication is a defense if it negates mens rea of crime
a) EXCEPTION – if you were reckless/negligent than still responsible
i) Reckless – as result of intox, not conscious of a risk he would have been aware of had he not been intoxicated
ii) Traditional MPC definition of reckless – “consciously disregards a substantial and unjustifiable risk”
3. Insanity
Procedural Context
a) Competency to stand trial
1) Criminal trial of incompetent D violates due process b/c:
a) D lacks capacity to consult with attorney with a reasonable degree of rational understanding
i) Unable to provide assistance to attorney and unable to testify in own behalf.
b) D lacks rational and factual understanding of the proceedings
2) Incompetency may be result of physical handicap (inability to speak) or permanent mental disability (mental illness, amnesia, retardation.)
3) Issue of competency can be raised by any party or judge ( issue of law
a) Psychiatric examination
b) B/P to prove competency vary
4) If incompetent (proceedings suspended until competent
a) Usually results in D’s commitment to mental facility
b) If incompetency is permanent, D may not be held more than the reasonable amount of time necessary to determine whether there is substantial probability that D will attain competency in the foreseeable future.
i) Continued commitment must be justified by progress
ii) If not, D must be released or committed pursuant to customary civil procedures
a) Length of pretrial commitment tend to last longer than maximum sentence of crime.
b) Pre-trial assertion of the Insanity Plea
1) D must provide P notice prior to trial of intention to raise insanity plea
a) Provides P adequate time to rebut and to allow court to require D to submit psychiatric examination
2) If D found insane, P will most likely dismiss charges on the grounds that D gets civilly committed to mental facility
c) Jury Verdicts
1) Not guilty
2) Not guilty by reason of insanity (NGRI)
a) P proved all elements of crime, including mens rea beyond a reasonable doubt, but NG b/c was insane at the time of the crime.
i) Usually results in automatic commitment to psychiatric facility or future observation and determination whether D remains mentally ill and subject to civil commitment.
a) Cannot civilly commit unless P roves that D is mentally ill and dangerous to herself and others by clear and convincing evidence (less than preponderance of proof)
b) May be held as long as remains dangerous to self and others
3) Guilty
d) Burden of Proof at Trial
1) Insanity is affirmative defense and D has initial burden to produce evidence regarding mental condition to raise an insanity defense
a) D may have to persuade jury
2) Maj states require D to have burden of persuasion.
3) Maj. states require proof by preponderance of evidence.
4. Why do we excuse the insane?
a) For insanity defense
1) Cannot deter someone who is mentally ill b/c incapable of controlling conduct.
2) Not morally blameworthy
3) Pointless to convict and jail
4) Can’t be rehabilitated
5) Retribution is not really fulfilled
6)
b) Against insanity defense
1) Criminally insane people are dangerous
2) Legal loophole that allows guilty people to go free
3) Difficult to determine what is insane
a) i.e. Sociopath is not insane.
b) Disease of the mind
4) Counter-deterrence
a) Would be wrongdoer may believe that she will be able to avoid conviction by raising insanity defense.
5) Criminal law and psychiatry should not mix
6) Mental illness is just another way of describing abnormal behavior
7) Other conditions (i.e. poor social environment) are more criminogenic than psychoses.
c) 4 states have abolished insanity defense, but allow defense to show evidence to rebut prosecutor’s claim that she possessed required mens rea
d) at least 13 states have adopted “guilty, but mentally ill” (GBMI) alternative
1) sane at the time of the crime, but now mentally ill.
5. Tests of Insanity
a) M’Naghten Test
1) Response by Queen who was very upset when M’Naghten tried to assassinate Prime Minister of England, but was acquitted.
2) Elements
a) Be of defect of reason caused by disease of the mind
i) D did not know the nature and quality of the crime OR
a) Ex. squeezing V’s neck thinking that it was a lemon.
ii) D did not know what he was doing was wrong
a) England applies “legally” wrong
b) In jxs that apply “moral” wrong, question is whether D knowingly violated societal standards of morality.
3) Exception in some jxs: Deific Decree Doctrine
a) When a party performs a criminal act, knowing it is morally and legally wrong, but believing, because of a mental defect, that the act is ordained by God.
i) b/c person likely to think if God ordered them to do something, he is likely to believe that society would approve of conduct.
4) High standard b/c either know or don’t know ( insane person must wholly lack cognition
5) Criticism
a) Reality is imprecise b/c didn’t recognize volitional or emotional impairments.
b) A person must wholly lack cognition but some mentally ill people can differentiate between right and wrong to some extent
c) If a person knows that she is doing but cannot control conduct, she is undeterrable, so punishment is useless.
d) Shouldn’t punish a person who, due to mental illness, lacks sufficient free will to control her conduct.
e) Unrealistic b/c person must be wholly lack cognition
b) Irresistible Impulse Test (“Police at the elbow” test)
1) D is unable to adhere to what he knows is right because of an irresistible impulse which deprives him of his choice of volition.
2) Criticism
a) Excludes people who are brooding up to the point of committing the crime.
b) Too fine line between inability to control self and not wanting to control self.
c) Unrealistic b/c requires total incapacity
c) Durham/Product test
d) MPC Test
1) When because of mental disease and defect:
a) D lacks the substantial capacity to appreciate the [criminality] wrongfulness of their conduct (knowledge/cognitive component) OR
b) D lacks the substantial capacity to conform his conduct to the requirements of the law (impulse)
2) Not as black and white b/c it uses “substantial capacity”
a) Complete incapacity not required
3) Uses the term “appreciate” instead of “knows”
a) Avoid a narrow interpretation of “know”
b) “Appreciate” conveys a broader sense of understanding than simple cognition
c) Person not held responsible unless his understanding of his conduct involves a “fuller, deeper knowledge” than simple cognition, involving emotional as well as intellectual awareness.
4) Leaves more room for fact finder to think about case.
5) Criticism
a) Test is based on outdated presumption that the human mind is divisible into volitional and cognitive functions
6. Knowing/Appreciating the “wrongfulness” of one’s actions
a) State v. Wilson
1) ISSUE: Is D criminally responsible for his illegal actions if, because of his mental disease or defect, he believes that the is morally justified in his conduct, although he may appreciate that his actions are legally criminal?
2) RULE: No. Even if a defendant appreciates that his actions were illegal, if he believes, due to his mental disease or defect, that his actions were morally justified (society would condone his actions if it understood the situation like the defendant understands the situation) then he will not be criminally responsible for his actions.
a) “under the circumstances as the defendant honestly but mistakenly understood them”
b) Legally wrong or “contrary to law” (objective approach
1) Person is criminally responsible if he has substantial capacity to appreciate that his act violates the law
c) “Contrary to public morality” ( Wilson court adopted this
1) Person is criminally responsible, regardless of his appreciation of his act’s legal wrongfulness, if he is aware at the time of the offending act that society morally condemns such acts.
d) “Contrary to one’s own conscience” ( subjective approach
1) Person is not criminally responsible for his action if, because of mental disease or defect, he believes that he is morally justified in his conduct, even though he may appreciate either that his act is criminal or that it is contrary to public morality.
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