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I. Why Punish? 6
What is Punishment 6
Regina v. Dudley and Stephens, QBD [1884] 6
“Other Crimes” Evidence 6
People v. Zackowitz, N.Y. (1930) 7
1. Purposes of Punishment 7
Retribution 7
Deterrence 8
Rehabilitation 8
Incapacitation 8
Mixed Theory 8
II. Requirements of the Common Law 9
A. Actus Reus 9
1. Voluntary Acts 9
Martin v. State, Ala. (1944) 9
People v. Newton, Cal. Ct. App. (1970) 9
People v. Decina, N.Y. (1956) 9
2. Omissions 10
Jones v. United States, D.C. Cir. (1962) 10
Pope v. State, Md. (1979) 10
Bystander Indifference and Good Samaritanism 11
Special Relationships 11
B. Mens Rea 11
1. Basic Conceptions 12
Regina v. Cunningham, Q.B. [1957] 12
Regina v. Faulkner, C.C. [1877] 12
Specific and General Intent 12
Negligence 13
State v. Hazelwood, Alaska (1997) 13
Santillanes v. New Mexico, N.M. (1993) 13
Model Penal Code Reforms 13
Model Penal Code Framework 13
2. Strict Liability 14
United States v. Balint, US (1922) 14
United States v. Dotterweich, US (1943) 14
Morissette v. United States, US (1952) 14
C. Mistake of Fact 15
People v. Olsen, Cal. (1984) 15
B v. Director of Public Prosecutions, House of Lords [2000] 15
Garnett v. State, Md. (1993) 15
D. Mistake of Law 16
Regina v. Smith, Q.B. [1974] 16
E. Causation 16
People v. Acosta, Cal. Ct. App. (1991) 17
People v. Arzon, N.Y. App. Div. (1978) 17
People v. Warner-Lambert Co., N.Y. (1980) 18
Foreseeable Medical Malpractice 18
State v. Shabazz, Conn. (1998) 18
United States v. Main, 9th Cir. (1997) 18
Stephenson v. State, Ind. (1932) 18
F. Constitutional Constraints on Definition of Crime 19
1. The Ban on Status Crimes 19
Robinson v. California, US (1962) 19
Powell v. Texas, US (1968) 19
2. The Requirement of Legality 20
Keeler v. Superior Court, Cal. (1970) 20
Rogers v. Tennessee, US (2001) 20
City of Chicago v. Morales, US (1999) 20
Papachristou v. City of Jacksonville, US (1972) 21
III. Homicide 21
A. Intended Killings 22
1. First Degree 22
Commonwealth v. Carroll, Pa. (1963) 22
State v. Guthrie, W. Va. (1963) 22
2. Provocation (Second Degree) 23
Girouard v. State, Md. (1991) 24
Maher v. People, Mi. (1862) 24
People v. Casassa, N.Y. (1980) 24
B. Unintended Killings 24
1. Murder 25
Commonwealth v. Malone, Pa. (1946) 25
United States v. Fleming, 4th Cir. (1984) 25
2. Manslaughter and Negligent Homicide 25
Commonwealth v. Welansky, Mass. (1944) 26
People v. Hall, Colo. (2000) 26
State v. Williams, Wash. Ct. App. (1971) 26
C. Felony Murder 27
Saxe Case 27
Regina v. Serne, CCC [1887] 27
People v. Stamp, Cal. (1969) 27
Misdemeanor Manslaughter Rule 28
1. Limitations on Felony-Murder Rule 28
Inherently Dangerous Felony Requirement 28
People v. Phillips, Cal. (1966) 28
People v. Stewart, R.I. (1995) 28
Hines v. State, Ga. (2003) 29
The Merger Doctrine 29
People v. Burton, Cal. (1971) 29
Killings by Non-Felons 29
State v. Canola, N.J. (1977) 30
IV. Rape 30
A. Actus Reus 31
1. Force and Resistance (MPC Culpability – Purposely or Knowingly) 31
State v. Rusk, Md. (1981) 31
Force and Resistance 31
Coercion and Duress 31
2. Eliminating the Force Requirement 32
State in the Interest of M.T.S., N.J. (1992) 32
M.C. v. Bulgaria, ECHR [2003] 32
3. Absence of Consent 33
Defective Consent 33
4. Deception (MPC Culpability – Recklessly) 33
People v. Evans, N.Y. App. Term (1975) 34
Boro v. Superior Court, Cal. (1985) 34
B. Mens Rea 34
1. Mistake as to Consent (MPC Culpability – Negligently) 34
Commonwealth v. Sherry, Ma. (1982) 34
Commonwealth v. Fischer, Pa. (1998) 34
V. Justifications and Excuses 35
A. Self-Defense 35
1. Reasonableness 35
People v. Goetz, N.Y. (1986) 36
Comparing Prior History in Goetz and White 36
2. Battered Women 36
State v. Kelly, N.J. (1984) 38
State v. Norman, N.C. (1989) 38
Imminent Danger Requirement 38
Jahnke v. State, Wyo. (1984) 39
3. Duty to Retreat 39
State v. Abbott, N.J. (1961) 39
B. Necessity and Duress 40
1. Necessity 40
People v. Unger, Ill. (1977) 40
Borough of Southwark v. Williams, E.R. [1971] 40
Commonwealth v. Leno, Mass. (1993) 41
Commonwealth v. Hutchins, Mass. (1991) 41
United States v. Schoon, 9th Cir. (1992) 41
Necessity and Social Ills in Williams, Leno, Hutchins, and Schoon 41
2. Duress 41
State v. Toscano, N.J. (1977) 42
United States v. Fleming, C.M.R. (1957) 42
United States v. Contento-Pachon, 9th Cir. (1984) 43
Ruzic v. Ruzic, D.L.R. [1998] 43
Inducements 43
C. Insanity 43
1. Formulating an Insanity Standard 44
M’Naghten’s Case, H.L. (1843) 44
Blake v. United States, 5th Cir. (1969) 45
United States v. Lyons, 5th Cir. (1984) 45
2. Diminished Capacity and Diminished Responsibility 45
Diminished Capacity 45
United States v. Brawner, D.C. Cir. (1972) 46
Clark v. Arizona, US (2006) 46
Diminished or Partial Responsibility 46
3. Note on Environmental Deprivation 46
VI. Expanded Liability 47
A. Attempt 47
Mens Rea 48
Smallwood v. State, Md. (1996) 48
Preparation versus Attempt 48
People v. Rizzo, N.Y. (1927) 48
Abandonment 48
McQuirter v. State, Ala. (1953) 49
B. Complicity (“Aiding and Abetting”) 49
Mens Rea 49
Hicks v. United States, US (1893) 49
State v. Gladstone, Wash. (1970) 50
Substantive Crimes of Facilitation 50
Natural and Probable Consequences Test 50
People v. Luparello, Wash. (1970) 50
Roy v. United States, DC. Ct. App. (1995) 50
Mens Rea for Results and Attendant Circumstances 51
State v. McVay, R.I. (1926) 51
Actus Reus 51
Wilcox v. Jeffrey, K.B.D. [1951] 51
State v. Tally, Ala. (1894) 52
C. Conspiracy 52
1. Prosecutorial Advantages 52
Overview: Consequences of a Conspiracy Charge 52
Krulewitch v. United States, US (1949) 53
Conspiracy as a Form of Accessorial Liability 53
Pinkerton v. United States, US (1946) 54
State v. Bridges, N.J. (1993) 54
United States v. Alvarez, 11th Cir. (1985) 54
2. Actus Reus 55
Interstate Circuit, Inc. v. United States , US (1939) 55
People v. Lauria, Cal. Ct. App. (1967) 56
3. Scope – Single or Multiple Conspiracies 56
Hub and Spoke Model 57
Kotteakos v. United States, US. (1946) 57
Anderson v. Superior Court, Cal. Ct. App. (1947) 57
Chain Model 57
United States v. Bruno, 2nd Cir. (1939) 57
Difficulties of Applying “Hub and Spoke” and “Chain” Models 57
United States v. Borelli, 2nd Cir. (1939) 57
United States v. McDermott, 2nd Cir. (2001) 57
VII. Discretion in the Application of Substantive Criminal Law 58
A. Charging 58
Linda R.S. v. Richard D., US (1973) 59
Inmates of Attica Correctional Facility v. Rockefeller, 2nd Cir. (1973) 59
United States v. Armstrong, US (1996) 59
B. Plea Bargaining 60
Brady v. United States, US (1970) 60
Bordenkircher v. Hayes, US (1978) 60
C. Sentencing 61
1. Discretionary Sentencing and its Alternatives 61
Williams v. New York, US (1949) 61
Sentencing Reform 62
United States v. Thompson, D.Mass. (2002) 62
2. The Jury’s Role 62
Blakely v. Washington, US (2004) 62
3. Proportionality as a Constitutional Constraint 63
Ewing v. California, US (2003) 63
4. Just Sentencing Outcomes: Purposes of Punishment, Revisited 63
United States v. Jackson, 7th Cir. (1987) 64
United States v. Gementera, 9th Cir. (2004) 64
Hashtags
#mpc – Model Penal Code provisions
#exam – points to work into exam if possible/necessary
#policy – policy arguments (besides explicit arguments)
#Gertner – Gertner on Gertner
General Tips/Info
▪ Start arguments with appropriate MPC § for issue/topic
Gertnerisms
▪ “What’s a mother to do?”
▪ 2 issues in criminal law: (1) punishment, and (2) overcriminalization
I. Why Punish?
What is Punishment
▪ Punishment may consist of a fine, probation, imprisonment, or the death penalty
Conviction itself is a form of punishment (e.g. social stigma, impediment to future employment, risk of enhanced punishment in event of a future offense, possible loss of voting rights, public housing access, risk of deportation)
▪ Criminal process bi-furcated in two: (1) trial, and (2) punishment
Sentencing is broader inquiry than trial and subject to fewer protections
|Contrasting Civil and Criminal Law |
|Civil |Criminal |
|Plaintiff-driven |State-driven |
|Remedy = money/injunction |Remedy = imprisonment |
|Settlement = maximize outcome |Plea bargain ≠ maximize outcome |
|Burden of proof: preponderance |Burden of proof: beyond reasonable doubt |
|Source of law: common law/statutory |Source of law: statutory |
|Civil Commitment (between civil and criminal) |
|State-driven |
Regina v. Dudley and Stephens, QBD [1884]
▪ Facts: Prisoners cast away at sea with no supply of water or food. Dudley, with assent of Stephens, went to boy and killed him and the two ate the boy with a third man, Brooks. Under the circumstances it appeared to prisoners they were certain to die of starvation absent feeding on the boy or one of themselves.
▪ Issues: Is necessity a defense when you kill a non-threat to save your own life? Should criminal law set norms that ordinary people can’t meet?
▪ Rule: Necessity isn’t a defense to killing an innocent person to save your own life (no absolute or unqualified necessity to preserve one’s life)
▪ Holding: Guilty of willful murder, unanimous ruling; executive commuted death sentence to a few months in jail
“Other Crimes” Evidence
▪ Basic principle: other crimes (and any other evidence designed to show “bad character” may not be introduced to show that accused had an evil disposition and thus was more likely to have committed the offense charged
▪ Justification
Weighs too much with jury to overpersuade them as to prejudge one with bad general record and deny them fair opportunity to defend against a particular charge
Person who has suffered conviction and sentence is said to have “paid his debt to society”
▪ Exceptions to rule
Evidence not to show defendant’s disposition to crime, but to help identify them as killer
Evidence not to show defendant’s disposition to crime, but to show motive
Evidence of prior sex crimes is admissible for prosecution of related acts, only when evidence also satisfies requirement that its prejudicial effect not outweigh its probative value
Impeachment exception: if accused chooses to testify in own defense, prosecution generally permitted to ask about other crimes in cross-examination and to introduce other-crimes evidence in its rebuttal for purposes of impeaching the defendant’s testimony
➢ Rationale is that person convicted of crime is more likely to give false testimony than citizen with clean record
People v. Zackowitz, N.Y. (1930)
▪ Facts: Defendant shot victim without justification or excuse after group of men insulted his wife while walking home. Defendant walked wife to apartment and returned to scene with a gun. Words and blows were exchanged before shooting.
▪ Issue: Did defendant shoot with deliberate and premeditated design to kill sufficient for charge of first-degree murder?
▪ Rule: No admission of illegally admitted evidence carrying with it an appeal to prejudice and passion
▪ Rule: Character is never an issue in a criminal prosecution unless defendant chooses to make it one
▪ Holding: Conviction reversed and new trial ordered
1. Purposes of Punishment
▪ Justifications for punishment
Retributive: punishment justified because people deserve it (backward-looking)
Utilitarian: punishment justified because of useful purposes of punishment (forward-looking)
➢ Deterrence
➢ Rehabilitation
➢ Incapacitation
Retribution
▪ Punishment justified on “just desert,” moral culpability basis
▪ Three principles of punishment
Person punished only if they have voluntarily done some moral wrong
Punishment must match wrongdoing
Return of suffering for moral evil voluntarily done is itself just or morally good
▪ Arguments for
Noninterference by others with what people value most (e.g. life and bodily security)
Fairness dictates system in which benefits and burdens are equally distributed
Just to punish those who have violated rules and caused unfair distribution of benefits and burdens
▪ Arguments against
Inequality undercuts the autonomy and equality pillars of retributivism (i.e., we are not all starting off equally, thus some may not have as free a choice whether or not to commit crime)
Retribution is simply vengeance and is based on principle that it is morally right to hate criminals
▪ Victim Impact Statements
Commonplace in federal and state sentencing
Statements from victims and family members describing damaging consequences of crime for the lives of the victims
Supreme Court originally ruled such statements did not bear on defendant’s blameworthiness in Booth (1987), but overturned this ruling in Payne (1991)
Arguments against
➢ Indistinguishable from vengeance
Deterrence
▪ Magnitude of punishment has to be greater than the benefit of committing the crime to deter crime
▪ Ways to increase direct deterrent effect
Increase risk of conviction (more effective, more difficult to implement)
Increase severity of punishment
▪ Arguments for
Deterrent criminal laws are useful in setting norms for behavior
▪ Arguments against
Assumes criminals are rational actors with perfect information
Punishment doesn’t necessarily fit the crime (e.g., three-strikes laws: very harsh punishment for relatively minor crimes)
Increased severity has a doubtful deterrent effect
Rehabilitation
▪ Make criminals safe to return to streets and/or make them able to lead flourishing and successful lives upon their return
▪ Arguments for
▪ Arguments against
Scarce resources allocated away from more deserving recipients
Paternalistic and discriminatory
Moral blindness in recasting punishment as “treatment”
Incapacitation
▪ Restrain criminals in prison and jails to prevent future crimes against the general public
▪ Arguments for
Surest way to assure future safety of general public
▪ Arguments against
Essentially punishes people for potential future crimes
Punishment does not necessarily fit crime (those committing worst crimes may not be those most likely to re-offend)
Selective incapacitation is potentially discriminatory
Mixed Theory
▪ Hart: “retributivism is soft permission but not duty and whenever you punish it should be in regard to the ideal consequences
II. Requirements of the Common Law
A. Actus Reus
Did you act upon your own volition such that it’s fair to hold you accountable?
▪ Actus reus: the commission of some voluntary act that is prohibited by law
1. Voluntary Acts
Martin v. State, Ala. (1944)
▪ Facts: Martin was arrested in his home and taken by the police onto a public highway when he was already drunk and was then convicted of violating a state code which prohibits being appearing in public while drunk
▪ Rule: Criminal act must be voluntary – MPC § 2.01(1) #mpc
▪ Holding: Conviction reversed
▪ Distinguishing conduct from status
Jones (2006): US Court of Appeals (9th Cir.) holds that “state may not criminalize “being”; state may not punish person for who he is, independent of anything he has done
People v. Newton, Cal. Ct. App. (1970)
▪ Facts: Altercation with police after they stopped Newton’s car. Newton shot in the abdomen before he fired any shots; ended up shooting and killing a police officer. Newton claimed he was in a state of unconsciousness after being shot and had no recollection of shooting officer. Jury convicts of voluntary manslaughter.
▪ Rule: Where not self-induced, unconsciousness is a complete defense to criminal liability
▪ Rule: Voluntary act is neither (1) a reflex nor convulsion, (2) bodily movement during unconsciousness or sleep, (3) conduct during hypnosis, (4) bodily movement not otherwise product of effort or determination - MPC § 2.01(2) #mpc
▪ Holding: Court found prejudicial error in trial court refusing requested instruction on involuntary unconsciousness
▪ Rationale of voluntary act requirement
Civilized society does not punish for thoughts alone
People whose involuntary movements threaten harm to others present public health or safety problems calling for therapy or even civil commitment, but not correction
▪ Hypnosis
Common law and MPC are in accord with result of Cogden
Law’s concern for purposes of punishment is with the conscious mind
People v. Decina, N.Y. (1956)
▪ Facts: Decina, who knew he was epileptic, drove his car on the highway, had a seizure, and ended up killing four people when his car jumped the curb.
▪ Rule: Actor is culpable if reasonably foreseeable that the voluntary act would be the proximate cause of an involuntary criminal act
▪ Holding: Guilty of culpable negligence due to knowledge of risk and disregard of consequences
← NOTE: Person’s movements during epileptic seizure are indisputably involuntary, so this is an example of “time-framing” in terms of how far back in time prosecution may go to determine what acts count as voluntary
2. Omissions
▪ In general, the Anglo-American legal system has refused to criminalize omissions except for when there is a legal duty to act.
▪ Five recognized categories of legal duty:
1) where a statute imposes a duty to care for another
2) where one stands in a certain status relationship to another
a. parent - child
b. husband - wife
c. master - apprentice
d. ship’s master - crew and passengers
e. innkeeper - inebriated customers
3) where one has assumed a contractual duty to care for another
4) where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid
5) where one creates a continuing risk of physical harm to another, one is under a duty to take reasonable care to prevent the risk from taking effect
Jones v. United States, D.C. Cir. (1962)
▪ Facts: Baby and (possibly) baby’s mother were staying with Jones. Jones had ample means to provide food and medical care for the baby, but did not, and the baby died. Found guilty of involuntary manslaughter through failure to provide.
▪ Rule: Breach of legal duty when (1) a statute imposes duty to care for another, (2) one stands in a certain status relationship to another, (3) one assumed a contractual duty voluntarily to care for another, or (4) one voluntarily assumed care of another and so secludes a person to prevent others from rendering aid – MPC § 2.01(3) #mpc
▪ Holding: Plain error not to instruct jury of necessity of finding a legal duty of care as critical element of crime charged
▪ Most cases where liability for homicide imposed for failure to act are, like Jones, cases of involuntary manslaughter
Might constitute murder if (1) defendant refused aid with intention of causing death, or (2) with full knowledge of a great risk that decedent would die
Pope v. State, Md. (1979)
▪ Facts: Pope took mother and 3-month-old into her home. Mother savagely beat baby in front of Pope. Pope did not attempt to intervene or seek medical attention for the baby and baby died. Trial court found Pope guilty of child abuse through omission and of misprision.
▪ Rule: No legal duty to call for help unless she had responsibility for the supervision of the child under the child abuse statute (bystander indifference is not crime absent statutory duty or special relationship)
▪ Holding: Pope did not have legal duty to care for child and misprision of felony (common law crime of failure to report a felony) is not a chargeable offense in Maryland
Bystander Indifference and Good Samaritanism
▪ Arguments for Good Samaritan laws
Duty to render aid to one in need, because one harms another in not doing so
European countries enforce duty to aid person in distress with severe penalties
▪ Arguments against Good Samaritan laws
Problem drawing line between omissions which should be legally culpable and those that should not
Diminishes freedom
A minority of states criminalize refusal to render aid to person in peril (MN, RI, VT)
Three additional states require bystanders to be Good Samaritans, only where person in peril is victim of crime (FL, HI, WI)
Special Relationships
▪ Family members
Parents have duty to aid minor children
Spouses have duty to aid each other
Siblings owe no duty to each other
Parents owe no duty to adult children
Adult children owe no duty to their parents – even when parents are elderly and unable to care for themselves
▪ de facto family members
Beardsley: conviction reversed of man who failed to call physician to aid mistress who overdosed on morphine; court held defendant owed deceased no legal duty
Carroll: conviction upheld of stepmother charged with child endangerment for failing to prevent husband from killing his daughter; court held stepmother still owed duty of care to husband’s children
Miranda: assault conviction set aside where live-in boyfriend failed to protect child from fatal beating inflicted by his girlfriend, the child’s mother; one judge explained that imposing liability would discourage well-meaning relatives, family friends, and other community members from taking active interest in children most at risk of abuse
Key Question: Should modern courts continue to look only at formal legal status or apply functional tests to impose duty based on special relationship #policy
B. Mens Rea
Did you have a culpable state of mind such that punishment is appropriate?
▪ Mens rea: the kind of awareness or intention that must accompany the prohibited act, under the terms of the statute defining the offense
Blame and punishment are inappropriate and unfair in the absence of choice
Q: Whether a defendant intended, expected, or should have expected their actions to produce particular consequences
Common mens rea terms include: willfully, intentionally, maliciously, corruptly, wantonly, recklessly, negligently, or with “scienter” (roughly, knowledge)
1. Basic Conceptions
Regina v. Cunningham, Q.B. [1957]
▪ Facts: Cunningham broke off gas meter in basement to steal money. Gas leaked through wall and endangered life of his elderly neighbor. Jury instructed that he was guilty if he acted “maliciously” as in “wickedly.”
▪ Rule: Nature of mens rea required is that actor must intend to do particular type of harm that was observed, or that they must foresee that harm may occur yet continue recklessly to commit act
▪ Holding: Court finds that malicious is not equivalent to wicked, but rather signifies that the defendant had “foresight of consequence” (i.e., acted recklessly in MPC terms)
← NOTE: Demonstrates prevailing approach at common law when interpreting “malice” (and other vague/ambiguous mens rea language) to impute meaning of “foresight of prohibited consequences”
This is equivalent to “recklessly” under MPC § 2.02(2)
Regina v. Faulkner, C.C. [1877]
▪ Facts: Faulkner went to the hold of a ship to steal some rum, lit a match to see better, some of the rum caught on fire and the entire ship was destroyed. He was charged with “maliciously” setting fire to the ship. Jury instructed that even if Faulkner had no intention of setting fire to the ship, if he did so while engaged in stealing the rum (i.e., while acting “badly”), then he should be found guilty.
▪ Rule: Maliciousness requires intentional and willful act, although intention may be proved by fact accused knew injury would be probable result of unlawful act and yet proceeded reckless of such consequences
▪ Holding: Conviction quashed; erroneous to instruct jury that defendant liable for any act done in course of felonious operation
▪ Dissent: Expansion of criminal liability beyond probable consequences of acts has no authority
Specific and General Intent
▪ Specific intent (most common usage)
Actions done with some specified further purpose in mind
Example: burglary requires person break and enter, with further objective of committing felony once inside
▪ General intent (in context of above)
Defendant can be convicted merely if he did what is deemed an intentional action
Example: actor breaking and entering is guilty of general intent crime of trespass
▪ Specific intent (less common usage)
Describe crime that requires defendant to have actual knowledge of some particular fact or circumstance (“attendant circumstance”)
Example: Bigamy prohibits married person from remarrying while legally married and requires specific intent to remarry with knowledge of attendant circumstance that they are married to another person
▪ General intent (in context of above)
Describe crime for which awareness of attendant circumstance need not be proved as some lesser mental state (e.g. recklessness or negligence) will suffice
Negligence
▪ One response to difficulty of establishing internal thoughts and perceptions of defendant is to eliminate any requirement of proving such a high level of mens rea and instead only require proof that defendant was negligent
State v. Hazelwood, Alaska (1997)
▪ Facts: Captain of Exxon Valdez convicted of negligent discharge of oil under a statute that designates offense as misdemeanor punishable by up to 90 days’ imprisonment. Argued that criminal negligence should require criminal negligence and not merely civil negligence.
▪ Rule: criminal negligence requires jury to find negligence so gross as to merit not just damages but also punishment
▪ Holding: Trial court’s adoption of ordinary negligence standard not erroneous as lower standard is sufficient to provide assurance that criminal penalties will be imposed only when conduct at issue is something society can reasonably expect to deter
▪ Dissent: Mere negligence insufficient to justify award of punitive damages and thus should not be basis of imprisonment
Santillanes v. New Mexico, N.M. (1993)
▪ Facts: Defendant cut his 7-year-old nephew’s neck with a knife during an altercation and convicted of child abuse based on negligence. Trial court gave jury a standard definition of negligence to support civil liability.
▪ Rule: criminal punishment requires a standard of criminal negligence to ensure that the behavior punished is morally culpable
▪ Holding: Jury instruction erroneous, criminal punishment requires showing of criminal negligence
Model Penal Code Reforms
▪ MPC’s mens rea framework has been adopted explicitly in majority of American jurisdictions
▪ Attempts to mitigate difficulties of mens rea analysis through three distinct tools
Manageable categories: eliminates use of general intent, specific intent, and other ambiguous common law terms, replacing them with just 4 mental states (i.e., purpose, knowledge, recklessness, and negligence)
Precise definitions: relatively clear, rigorous definition for each of its four mens rea terms
Convenient default rules: provides rules of interpretation enabling courts to determine required mens rea state sensibly and predictably when statutory language is silent, ambiguous, or contradictory as to mens rea
Model Penal Code Framework
▪ MPC § 2.02 – General Requirements of Culpability #mpc
▪ Requires that one of these levels of culpability must be proved in respect to each “material element” of the offense:
Purposely: conscious object to cause result (element involves nature/result of conduct), or awareness of attendant circumstances (element involves attendant circumstances)
Knowingly: awareness that conduct is of nature or that circumstances exist (element involves nature of conduct or attendant circumstances), or aware that it is practically certain conduct will cause result (element involves result of conduct)
Recklessly: conscious disregard of a substantial and unjustifiable risk
Negligently: should be aware of substantial and unjustifiable risk
▪ Statute silent as to culpability
Unless culpability sufficient to establish material element of an offense has been prescribed by law, it is established if a person if a person acted purposely, knowingly, or recklessly – MPC § 2.02(3) #mpc
▪ Ambiguous culpability requirements
If particular kind of culpability articulated at all by legislature as sufficient with respect to any element of the offense, assumption is that it was meant to apply to all material elements, unless contrary purpose clearly appears – MPC § 2.02(4) #mpc
▪ Substitute culpability standards
Higher culpability standard is sufficient to prove satisfaction of lower culpability standards – MPC § 2.02(5) #mpc
▪ Applying MPC Approach
1) Determine material elements of an offense – MPC § 1.13(9)-(10) #mpc
2) Determine which type of mens rea is required with respect to each material element
2. Strict Liability
▪ Strict liability: cases where liability imposed despite defendant neither knowing nor having reason to know that anything about their behavior was wrong
▪ Typically, though not always, public welfare offenses
E.g., drugs (Balint), food, meat-packing, securities fraud, traffic offenses, trade regulation,
Health and safety (Dotterweich)
▪ Indicators that offense is strict liability
Less severe punishment
Offender standing in a responsible relation to some grave public danger
new statutory offense that was created to protect public welfare
United States v. Balint, US (1922)
▪ Facts: Defendants were selling illegal drugs, claimed they did not know the drugs were prohibited.
▪ Rule: When emphasis of statute is on social betterment rather than punishment of crime, it should not require proof of knowledge and actor acts at their own peril
▪ Holding: Act’s purpose is to require every person dealing in drugs to ascertain at their peril whether that which they sell comes within statute and to penalize them if it does
United States v. Dotterweich, US (1943)
▪ Facts: Pharmacal repackaged drugs, the manufacturer mislabeled the drugs on two occasions, which led Pharmacal to likewise mislabel them. President/general manager found guilty of shipping misbranded products.
▪ Rule: Public welfare legislation serves as effective means of regulation, dispensing with conventional requirement for criminal conduct – awareness of some wrongdoing
▪ Holding: Congress prefers to place burden on seller who has better opportunity than buyer to be aware of regulation and penalty than buyer where liability is imposed statutorily
Morissette v. United States, US (1952)
▪ Facts: Morissette was a junk dealer, who took spent bomb casings that had been lying around for years in an Air Force practice bombing range and sold them at a junk market for profit. Convicted of “knowingly converting” government property; jury instructed that question of intent was whether or not he intended to take the property (i.e., an “intentional exercise of dominion over property that is not one’s own,” regardless of whether defendant knew he was violating someone’s rights by taking the property).
▪ Rule: Fact that statute is silent about intent or culpability should not be construed as eliminating that element from crimes – MPC § 2.02(3) #mpc
▪ Holding: Conviction reversed; Congress omitted express mention of intent relying on substantial judicial precedent holding intent inherent for this offense, even when not expressed in statute and defendant entitled to defense of abandonment
C. Mistake of Fact
People v. Olsen, Cal. (1984)
▪ Facts: 13 year-old Shawn was sleeping in family’s camper trailer parked in the driveway and was woken by defendant who proceeded to have sex with her at knifepoint. Shawn’s father entered trailer and was stabbed by accomplice as offenders attempted to flee camper. Accomplice testified to different set of events.
▪ Rule: Strong public policy to protect children of tender years and indication of strong penalty suggests there was no intent to allow defense on grounds of mistake of fact as to age of victim
▪ Holding: Judgment affirmed; legislative purpose of statute would not be served by recognizing defense of reasonable mistake of age
▪ Dissent: Problematic to impose prison sentence when person acted on reasonable belief that victim was of age not to constitute violation of statute and is not otherwise guilty of criminal conduct
B v. Director of Public Prosecutions, House of Lords [2000]
▪ Facts: 15-year-old-boy repeatedly asked a 13-year-old-girl to perform oral sex. Girl refused and B was subsequently charged with inciting a child under the age of 14 to commit act of gross indecency in violation of statute. B honestly believed girl was over 14 years old.
▪ Rule: The more serious the offense, the greater the weight to be attached to the presumption [requiring proof of mens rea], because the more severe the punishment and the stigma accompanying conviction
▪ Holding: Appeal allowed; no general agreement that law protecting children in sexual matters requires strict liability and necessary mental element for criminal culpability is absence of genuine belief that victim was 14 years of age or above (rejects “reasonable belief” standard in favor of “honest belief” standard)
Garnett v. State, Md. (1993)
▪ Facts: Defendant is retarded man 20 years old who interacted with others socially at level of someone 11 or 12 years of age. A friend introduced defendant to girl aged 13, with whom he later engaged in sexual intercourse. Girl later gave birth to defendant’s baby and defendant was charged with second-degree rape. Defense evidence suggested girl and her friends had told defendant she was 16 years old and he acted on that belief.
▪ Rule: Majority of states retain statutes imposing strict liability for sexual acts with underage victims, that offer no mistake-of-fact defense
▪ Holding: Court upheld trial court’s decision to deny defense of reasonable mistake, ruling that any new provision introducing an element of mens rea should result from act of Legislature and not judicial fiat
▪ Dissent: Ruling destroys concept of fault; renders meaningless presumption of innocence and right to due process in statutory rape context
▪ MPC generally allows for defense of honest mistake, but provides for strict liability when criminality in a sexual offense involves child below age of 10
▪ Arguments against strict liability in statutory rape cases
Increasing importance of mandatory sentencing laws
Lawrence v. Texas US (2003): decision holding it unconstitutional for state to punish private sexual activity by consenting adults; strict liability becomes unconstitutional when state has no power to punish underlying activity (i.e., acts the defendant is “aware” of committing)
D. Mistake of Law
Regina v. Smith, Q.B. [1974]
▪ Facts: Defendant damaged wall panels and floor boards of his own construction to retrieve stereo wiring he had installed with landlord’s permission and was charged with Criminal Damage Act criminalizing damage to property belonging to another without lawful excuse
▪ Rule: Ignorance or mistake as to a matter of fact or law is a defense if it negatives the purpose, belief, recklessness or negligence required to establish a material element of the offense – MPC § 2.04(1)
▪ Holding: Court of Appeal reversed conviction, finding erroneous jury instruction that defendant’s belief he had the right to perform the act was not a lawful excuse, given fact that defendant honestly believed he was destroying his own property
▪ Traditional view
Courts traditionally refused to consider mistake of law as a defense, even when the mistake was based on assurances of a public official or the decision of a court
▪ MPC approach
Code adopts a limited defense for situations in which a defendant reasonably believes their conduct does not constitute an offense (combines “mistake of law and mistake of fact” into “reliance” defense)
Reliance defense is available only when the defendant “acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous.” – MPC § 2.04(3)
▪ Due process limitations
Supreme Court has held it is a violation of due process to convict a defendant for conduct that governmental representatives, in their official capacity, had earlier stated was lawful (Raley v. Ohio)
▪ Practical application
Generally only permitted as a defense to (a) theft of property, and (b) certain regulatory crimes
E. Causation
Are the harms created sufficiently connected to what you did that it’s fair to punish you?
▪ If a particular result of the defendant’s conduct is a necessary element of the crime, need to consider whether the defendant’s act caused the result
▪ Causation has two components #exam
Factual cause (“but-for” or “sine qua non”): harm would not have occurred in the absence of the defendant’s act (threshold question)
Proximate cause: act must bear a sufficiently close relationship to the resulting harm (this is generally the source of causation issues)
▪ Most state codes include no explicit rules for determining causation and courts are left to resolve causation issues on basis of evolving common law principles
▪ Causation standards must be evaluated on basis of two questions:
What difference will it make if defendant’s conduct is held to be “cause” of result?
What is the “reason” for that difference in liability or in the severity of the punishment?
▪ Transferred intent doctrine imposes liability in all jurisdictions when actor A shoots at actor B, missing them but killing actor C unintentionally
▪ Arguments #policy
For foreseeability standard: key concept in proximate cause analysis is probability as it would be understood by ordinary persons
Against foreseeability standard: concept of foreseeability is inherently arbitrary and manipulable, due to “multiple-description problem”
▪ Model Penal Code Approach
MPC § 2.03 #mpc
Does not include concepts of intervening cause and “eggshell skull” as found in common law
Purposely/Knowingly mens rea requirements addressed in § 2.03(2)
Recklessly/Negligently mens rea requirements addressed in § 2.03(3)
Addition of the word [just] in brackets makes explicit the normative matter of connecting cause and result when determining blameworthiness (already a normative element in common law, but it pretends to be objective/scientific)
People v. Acosta, Cal. Ct. App. (1991)
▪ Facts: Acosta led officers on 48-mile car chase. During chase two helicopters involved in chase collided, killing three. FAA investigation concluded due to careless and reckless operation of aircraft by one of the pilots, in violation of FAA regulations.
▪ Rule: Proximate cause standard should exclude highly extraordinary results
▪ Holding: Finding of proximate cause appropriate, but murder conviction reversed as Acosta lacked malice towards pilots in the form of conscious disregard of the risk posed by his actions. (superseding cause)
▪ Dissent: Law does not assign blame when neither the intervening negligent conduct nor the risk of harm was foreseeable (“range of apprehension”)
People v. Arzon, N.Y. App. Div. (1978)
▪ Facts: Arzon started a serious fire on the fifth floor of an abandoned building. Another independent fire broke out on the second floor that hindered the evacuation of the firefighters and a fireman died. Arzon was convicted of 2nd degree murder and arson.
▪ Rule: Defendant’s conduct need not be the sole and exclusive factor in the victim’s death and it is not necessary that the ultimate harm be intended by the actor; it will suffice if it forges a link in the chain of causes which actually brought about the death
▪ Holding: Defendant’s motion to dismiss the murder indictment denied (concurring cause)
People v. Warner-Lambert Co., N.Y. (1980)
▪ Facts: Explosion at chewing-gum factory. Defendants knew that some of the substances used in manufacturing process presented an explosion hazard and had ignored the risk, but the exact cause of the explosion not determined definitively.
▪ Rule: Defendant’s actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability, a standard greater than that required to serve as a basis of tort liability
▪ Holding: court held evidence was not legally sufficient to establish the foreseeability of the immediate, triggering cause of the explosion and therefore dismissed the indictment
Foreseeable Medical Malpractice
▪ Many courts find initial assailant liable for victim’s death even when significant medical error contributes to result, but disagree about extent to which subsequent medical mistakes may bear on initial assailant’s liability
▪ Argument against bystander liability
Omissions by passers-by can be necessary conditions, and thus causes, but are non-culpable causes of the result
State v. Shabazz, Conn. (1998)
Facts: Defendant stabbed victim in abdomen, lung and liver. Victim was taken to hospital and died the following morning due to heavy bleeding resulting from surgery.
Rule: Gross negligence may permit defendant to escape liability only when it was the sole cause of death
Holding: Appellate court held trial court ruled properly in barring defense from introducing testimony of experts who would have testified that hospital had been grossly negligent
United States v. Main, 9th Cir. (1997)
Facts: Defendant’s truck veered off road and collided with an obstacle as he was fleeing a traffic stop. Passenger was trapped in the wreckage and officer on the scene decided not to move him, fearing head and neck injuries would be aggravated by movement. Passenger died because they were left in position in which they could not breathe properly.
Rule: Jury must be told that it must find that victim’s death was within the risk created by the defendant’s conduct, as it is an element of the crime
Holding: Court of appeals reversed based on refusal of trial judge to instruct jury that it could find defendant’s actions were not the proximate cause of death due to intervening cause of officer’s actions.
Stephenson v. State, Ind. (1932)
▪ Facts: Defendant kidnapped and raped victim. While in his possession, she tried to poison herself and he did not seek medical attention for her. She later died from a combination of shock, lack of food and rest, the poison, an infected wound (inflicted by defendant), and a lack of early medical treatment. Defendant found guilty of 2nd degree murder.
▪ Rule: When suicide follows a wound (mental or physical) inflicted by the defendant his act is homicidal, if deceased was rendered irresponsible by the wound and as a natural result of it
▪ Holding: Conviction upheld; evidence was sufficient and justified the jury in finding appellant rendered the deceased distracted and mentally irresponsible, and that such was the natural and probable consequence of such unlawful and criminal treatment
▪ Justification: Take victim as you find them; not limited to foreseeable consequences if victim has underlying condition that makes them particularly vulnerable (“eggshell skull”)
F. Constitutional Constraints on Definition of Crime
▪ General constraints that the US Constitution imposes on the criminal lawmaking powers of legislatures and the common law criminal lawmaking powers of courts
▪ Relevant limitations:
Due Process clause
ex post facto clause
Proportionality
Rule of Lenity
1. The Ban on Status Crimes
Robinson v. California, US (1962)
▪ Facts: Statute making it criminal to be addicted to drugs while in the state of California. Prosecution’s evidence with respect to defendant was police testimony that he had scar tissue, discoloration, and needle marks indicating frequent use of narcotics. Judge instructed jury that defendant could be convicted on basis of “status” or that he had committed “act.”
▪ Rule: Law criminalizing a disease or illness that can be contracted innocently or involuntarily inflicts a cruel and unusual punishment under the Eight Amendment
▪ Holding (Stewart): Reversed; state law imposing criminal liability despite defendant having never committed “act” within state inflicts cruel and unusual punishment in violation of Fourteenth Amendment
▪ Concurrence (Douglas): Prosecution for addition, with its stigma, cannot be justified as a means of protecting society
▪ Concurrence (Harlan): Effect of jury instruction was to authorize criminal punishment for bare desire to commit a criminal act
▪ Dissent (White): Fourteenth Amendment held to bar any prosecution for addiction regardless of degree of frequency of use
Powell v. Texas, US (1968)
▪ Facts: Appellant arrested and charged with being found in a state of intoxication in a public place, in violation of Texas Penal Code. Trial court entered findings of fact asserting that chronic alcoholism is a disease
▪ Rule: Criminal penalties may be inflicted only if the accused has committed some act, engaged in some behavior, which society has an interest in preventing, or has committed some actus reus
▪ Holding: Affirmed; limits Robinson by holding it applies only to criminalization of a “status” and not an “act,” here the “act” of getting publicly intoxicated is the issue
▪ Concurrence (Black, Harlan): States should not be constitutionally required to determine what part of a defendant’s personality is responsible for their actions and to excuse anyone whose action was, in some complex psychological sense, the result of a “compulsion”
▪ Concurrence (White): Chronic who proves their disease is not shielded from conviction when they knowingly failed to take feasible precautions against committing a criminal act
▪ Dissent (Fortas, Douglas, Brennan, Stewart): Criminal penalties may not be inflicted upon a person for being in a condition they are powerless to change
▪ Since Powell, no state court has held alcoholics could not be punished criminally for public intoxication, except Minnesota
Chronic alcoholics are accorded all of the procedural safeguards that surround those with mental disabilities who are accused of crime
2. The Requirement of Legality
Keeler v. Superior Court, Cal. (1970)
▪ Facts: Ex-husband beat his wife who was in an advanced state of pregnancy by another man with intent to kill her unborn child. Baby was completely viable and would have survived otherwise. Charged with murder.
▪ Rule: First essential of due process is fair warning of the act which is made punishable as a crime
▪ Holding: Judicial enforcement of criminal murder statute in this case was unforeseeable to petitioner on basis “unborn fetus” is not a “human being” within the statute and to do so would deny him due process of law
▪ Dissent: Legislature used broad term “human being” and directed courts to construe it according to “fair import” with view to effect objectives of homicide statutes and promote justice
Rogers v. Tennessee, US (2001)
▪ Facts: Defendant stabbed someone in the chest who went into coma and ultimately died from complications of the injury 15 months later. State Supreme Court sustained murder conviction despite common law rule limiting homicide prosecutions to within 1 year + 1 day of defendant’s acts.
▪ Rule:Ex Post Facto Clause, by its own terms, does not apply to courts and court is entitled to exercise judicial action as long as it is not unfair and arbitrary
▪ Holding (O’Connor): Supreme Court holds result did not violate due process or ex post facto clauses as court merely exercised common law decision-making in bringing law into conformity with reason and common sense by doing away with antiquated “year and a day” rule
▪ Dissent (Scalia): Not just “unexpected and indefensible,” but all retroactive changes to common law of crimes are bad and petitioner had nothing that could fairly be called “warning” that state court would eliminate one of the elements of murder
▪ Argument: Dissent is not convincing because type of notice is not that which actor would reasonably debate when committing crime. #policy
City of Chicago v. Morales, US (1999)
▪ Facts: Loitering statute under which police could essentially arrest anyone if they’re with a group where the police suspect that one of them is a gang member. Can only order group to disperse when the group has “no apparent purpose.”
▪ Rule: Vagueness may invalidate a criminal law for two independent reasons: (1) fail to provide kind of notice that will enable ordinary people to understand what conduct it prohibits; (2) may authorize or encourage arbitrary and discriminatory enforcement
▪ Holding (Stevens): Affirmed as ordinance enacted by City of Chicago is unconstitutionally vague, affords too much discretion to police, and too little notice to citizens who wish to use the public streets
▪ Concurrence (O’Connor, Breyer): Lacks sufficient minimal standards to guide law enforcement and could have been construed more narrowly so as to be constitutional
▪ Dissent (Thomas, Rehnquist, Scalia): ordinance penalizes loiterer’s failure to obey a police order to disperse and certain amount of deference must be given to judgment of police officers
Papachristou v. City of Jacksonville, US (1972)
▪ Facts: City vagrancy ordinance used in practice to arrest interracial couples, labor organizers, and others guilty of normal activities like “nightwalking” or waiting to meet friends.
▪ Holding: Unconstitutionally vague ordinance criminalizes many normal activities and confers discretion on law enforcement to force people outside the mainstream to conform to a lifestyle standard deemed appropriate by them and the courts
▪ NOTE: leading case on constitutionality of vagrancy-type laws
▪ Modern Penal Code Approach
Prohibits “loitering in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity – MPC § 250.6 #mpc
▪ Post-Morales anti-gang and anti-loitering legislation
Courts have upheld legislation that imports requirement of specific intent (mens rea) and exclusion of constitutionally protected activity
Courts have also upheld legislation where loitering ordnances are applied to a specific, narrow location
III. Homicide
▪ Common Law
Murder: unlawful killing with “malice aforethought”
➢ Malice aforethought: comprehensive name for a number of mental states which are held by courts to render a homicide particularly heinous to constitute murder
➢ First degree: (1) intentional, (2) malice, (3) pre-meditated
➢ Second degree: (1) intentional, (2) malice, (3) non-premeditated
Manslaughter: unlawful killing without “malice aforethought”
➢ Voluntary: provocation/heat of passion/non-premeditated – mitigates murder to manslaughter
➢ Involuntary: risk creation/gross negligence/recklessness
▪ Example: distinguishing 2nd-degree murder and manslaughter
2nd degree: crime of passion w/o provocation (discover spouse in bed + kill)
Manslaughter: crime of passion w/ provocation (discover spouse in bed + kill in struggle over weapon)
▪ Modern Penal Code Approach – MPC § 210.1-210.4 #mpc
Criminal homicide: purposely, knowingly, recklessly or negligently causing death of another human being – three categories
Murder – MPC § 210.2
➢ Criminal homicide committed purposely or knowingly
➢ Criminal homicide committed recklessly under circumstances manifesting extreme indifference to value of human life; presumed in commission of, attempt to commit, or flight after committing or attempting to commit robbery, rape, arson, burglary, kidnapping or felonious escape (MPC “felony murder”)
➢ Felony of the first degree
Manslaughter – MPC § 210.3
➢ Criminal homicide committed recklessly
➢ Homicide which would otherwise be murder committed under influence of extreme mental or emotional disturbance with reasonable explanation or excuse
➢ Felony of the second degree
Negligent Homicide – MPC § 210.4
➢ Criminal homicide committed negligently
➢ Felony of the third degree
A. Intended Killings
▪ American law carried over English common-law concept of murder
▪ Most significant departure was the division of murder into degrees
Intended to confine death penalty, which was then mandatory on conviction of common-law murder, to homicides judged particularly heinous
1. First Degree
Commonwealth v. Carroll, Pa. (1963)
▪ Facts: Defendant admitted killing wife. They argued frequently, had been arguing in bed, she had fallen asleep, he grabbed gun from windowsill above bed and shot her in the back of the head. Defendant argued that he lacked the specific intent to kill required to be guilty of 1st degree murder, and therefore his conviction should be reduced to 2nd degree.
▪ Rule: Specific intent to kill necessary to constitute murder in the first degree may be found (1) from a defendant’s words or conduct or from the attendant circumstances together with all reasonable inferences, or (2) from the intentional use of a deadly weapon on a vital part of the body of another human being
▪ Holding: Affirmed as a willful, deliberate and premeditated murder; Courts cannot abdicate to psychiatrists the right to determine criminal responsibility or the intent or state of mind of an accused at the time of the commission of a homicide.
▪ NOTE: Many courts follow the Carroll approach by suggesting that some premeditation is required and simultaneously holding that “no time is too short” for necessary premeditation to occur
State v. Guthrie, W. Va. (1963)
▪ Facts: Defendant stabbed coworker in the neck, killing him, after he teased him and flicked a dishtowel at defendant’s nose. Defendant had several psychiatric problems. Convicted of 1st degree murder. Argued that jury instructions were erroneous b/c they equated the terms “willful, deliberate, and premeditated” with a mere intent to kill.
▪ Rule: Must be some evidence that defendant considered and weighed decision to kill in order for State to establish premeditation and deliberation under first-degree murder
▪ Holding: Reversed and remanded; language in trial court instructions erroneous because it eliminates all meaningful distinction between first and second-degree murder
▪ Carroll/Guthrie Split
Split exists in American jurisdictions on meaning of premeditation
Model Penal Code does not address premeditation and effectively eliminates all distinction between 1st and 2nd degree murder, mirroring Carroll
Guthrie maintains distinction between 1st and 2nd degree murder
▪ Proof of premeditation #exam
Planning activity – facts regarding defendant’s behavior prior to the killing indicating design to take life
Facts about defendant’s prior relationship or behavior with the victim indicating motive to kill
Evidence regarding nature or manner of the killing which indicate a deliberate intention to kill according to preconceived design
2. Provocation (Second Degree)
▪ Common Law
Traditional circumstances of “provocation” mitigating murder to manslaughter #exam
➢ Extreme assault or battery upon defendant
➢ Mutual combat
➢ Defendant’s illegal arrest
➢ Injury or serious abuse of close relative of defendant’s
➢ Sudden discovery of spouse’s adultery
Cooling time
➢ Common law view is that provocation is rendered inadequate “as a matter of law” if too much time lapses between provocation and act of killing
➢ Limitation is sometimes surmounted by argument that event immediately preceding homicide rekindles earlier provocation, but many courts reject this argument
Initial provocation by defendant
➢ Some American statutes explicitly disallow provocation defense where defendant induced provocative action
▪ Model Penal Code Approach – MPC § 210.3 #mpc
Adopts formulation requiring actor operate under influence of “extreme mental or emotional disturbance for which there is a reasonable explanation or excuse”
Adopts subjective “actor’s situation” standard
▪ Arguments #policy
Arguments for mitigation due to provocation
➢ Partial excuse – concession to frailty of human nature
➢ Partial justification – individual morally justified to some extent in making punitive return against someone who intentionally causes serious harm
Arguments against mitigation due to provocation
➢ Reasonable people do not kill under any circumstances and even enraged people retain capacity to control homicidal or any other aggressive or antisocial desires
➢ Mitigation is humanitarian only if one focuses sympathetically on perpetrators and not victims
➢ Without adopting subjective standard accounting for age, race, culture and background of defendant, law of provocation is likely to result in discrimination and injustice
Girouard v. State, Md. (1991)
▪ Facts: Defendant stabbed wife 19 times with a kitchen knife he had hidden behind a pillow after she “taunted and verbally abused” the defendant during an argument. Realizing what he had done, defendant then slit his own wrists and later called police when he realized he would not die. Convicted of 2nd degree murder. Argued that should be mitigated to manslaughter.
▪ Rule: 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
▪ Rule: Reasonableness standard is not “individualized “ to focus on peculiar frailties of mind, out of social necessity
▪ Holding: Affirmed; provocation here was not enough to cause a reasonable man to stab his provoker 19 times
Maher v. People, Mi. (1862)
▪ Facts: Defendant shot victim 30 minutes after victim had sex with defendant’s wife. Trial court refused to admit evidence of the alleged adultery. Convicted of assault with intent to murder.
▪ Rule: Manslaughter arises when actor is driven to act by passion rather than judgment due to disturbance that would elicit similar response in person of fair average disposition
▪ Holding: Reversed and remanded; competent for jury to find that act was committed as consequence of passion excited by provocation and in a state of mind which would mitigate the murder to manslaughter
▪ Dissent: Law should only find manslaughter where provocation occurs in the presence of the person committing the homicide
▪ Girouard/Maher Split
Split exists in American jurisdictions on approach to provocation
Majority view (Girouard) – only a few particular circumstances can serve as legally adequate provocation and words may never do so
Minority view (Maher) – departs from conventional common law position that only a few particular circumstances can serve as legally adequate provocation and allows words to constitute provocation where they disclose provocative happenings
People v. Casassa, N.Y. (1980)
▪ Facts: Defendant stalked and then killed ex-girlfriend after she broke up with him. Convicted of 2nd degree murder. Defendant claimed he was acting under the influence of “extreme emotional disturbance,” as evidenced by his bizarre behavior.
▪ Rule: Extreme emotional disturbance requires: (1) defendant must have “acted under influence of extreme emotional disturbance,” and (2) must have been “a reasonable explanation or excuse” for such extreme emotional disturbance (determined subjectively from viewpoint of defendant)
▪ Holding: Affirmed; excuse offered by defendant was so peculiar to him that it was unworthy of mitigation as it was determined murder was result of defendant’s malevolence and not an understandable human response deserving mercy
B. Unintended Killings
▪ Tensions between accidental nature of killings and attempts to deter future behavior
Tort system is unreliable (especially in situations like leaving babies in car seats or failure to obtain medical care for babies), so should state bring charges and rely on juries to divine true intent?
Cultural/social biases may have disproportionate effect on certain defendants if we rely on prosecutorial discretion
1. Murder
▪ Common Law
Unintentional killing constituting murder rather than manslaughter satisfied by unintentional shootings (Malone), throwing a heavy object down upon a busy street, shooting into an occupied building (shooting into what one thinks is an abandoned building would be manslaughter), and beating a person to death
Elements of reckless killings constituting murder:
➢ (1) reckless and wanton (amount of risk)
➢ (2) gross deviation from a reasonable standard of care (reason for risk)
➢ (3) defendant was aware of risk (awareness of risk)
▪ Model Penal Code – MPC § 210.2
Reckless killing constitutes murder under circumstances manifesting extreme indifference to value of human life
Inadvertent risk creation however extravagant and unjustified, cannot be punished for murder
Commonwealth v. Malone, Pa. (1946)
▪ Facts: Defendant shot 13-year-old friend while playing “Russian Poker.” Defendant thought there was only one bullet in the gun that was to the right of the chamber (essentially believed there was zero chance of the gun going off). Convicted of 2nd degree murder. Act of pulling trigger was intentional; however, defendant argued that he did not intend to harm his friend.
▪ Rule: Act of gross recklessness for which one must reasonably anticipate death to another is likely to result exhibits malice sufficient to constitute murder
▪ Holding: Affirmed; killing was murder because malice is evidenced by intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others and fact that there was no motive does not exculpate the accused, motive is relevant but never necessary
United States v. Fleming, 4th Cir. (1984)
▪ Facts: Defendant exhibited extremely reckless driving behavior while intoxicated. Car crossed into oncoming traffic and struck victim’s car, killing her. Convicted of 2nd degree murder. Defendant argues that he did not have requisite “malice aforethought.”
▪ Rule: Proof of the existence of malice may be established by evidence of conduct which is “reckless and wanton and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of serious risk of death or serious bodily harm”
▪ Holding: Affirmed; evidence regarding defendant’s conduct was adequate to sustain a finding by the jury that defendant acted with malice aforethought
▪ Intoxication is not a defense unless it negatives an element of an offense and is immaterial here recklessness establishes element of the offense and intoxication is self-induced – MPC § 2.08 #mpc
2. Manslaughter and Negligent Homicide
▪ Common Law
In criminal cases, deceased’s contributory negligence or other misconduct has never afforded a defense
➢ Although contributory negligence does not itself afford a defense as it would in a civil case, it may bear on whether defendant’s conduct was a proximate cause of death
▪ Model Penal Code
Creates 2 crimes
➢ Manslaughter: killing where actor is reckless and consciously disregarded a substantial and unjustifiable risk – MPC § 210.3
➢ Negligent homicide: killing where person should have been aware of substantial and unjustifiable risk and fails to perceive – MPC § 210.4
Common law and MPC both generally require gross negligence for imposition of manslaughter
Commonwealth v. Welansky, Mass. (1944)
▪ Facts: Boston nightclub owner directed operations of club. One night a fire broke out, there were not enough emergency exits, the exits were poorly marked and some were locked, and the situation was aggravated by flammable decorations and overcrowding, resulting in many deaths. On the night of the fire, defendant was in the hospital. However, he was convicted of involuntary manslaughter through wanton or reckless conduct.
▪ Rule: Where there is a duty of care for the safety of business visitors invited to premises which the defendant controls, wanton or reckless conduct may consist of intentional failure to take such care in disregard of the probable consequences to them or of their right to care
▪ Holding: Affirmed; conviction of manslaughter did not require proof that defendant caused fire by some wanton and reckless conduct, it was enough to prove that death resulted from his wanton or reckless disregard of the safety of patrons in the event of fire from any cause
People v. Hall, Colo. (2000)
▪ Facts: Defendant, a ski instructor, was skiing recklessly, flew off a knoll and collided with another skier, killing him. Charged with felony reckless manslaughter. Trial and appeals courts dismissed the case, saying that defendant’s conduct did not rise to the level of dangerousness and that it was not “at least more likely than not” to cause death.
▪ Rule: Violation of a statutorily imposed duty in an extreme fashion may be evidence of conduct constituting a gross deviation from a standard of care imposed by statute for civil negligence
▪ Holding: Reversed’ reasonably prudent and cautious person could have entertained belief Hall consciously disregarded a substantial and unjustifiable risk that by skiing exceptionally fast and out of control he might collide with and kill another person on the slope, and evidence sufficient to establish probable cause of reckless manslaughter
State v. Williams, Wash. Ct. App. (1971)
▪ Facts: Native American husband and wife convicted of manslaughter for negligently failing to supply their 17-month-old child with necessary medical attention, resulting in its death. Defendants knew baby was sick, but didn’t realize how sick and were worried that baby would be taken away from them by Welfare Department.
▪ Rule: Contrary to common law, Washington statutes [at time of case] require only simple or ordinary negligence for involuntary manslaughter conviction
▪ Holding: Affirmed; sufficient evidence that defendant were aware of child’s condition to have required them to obtain appropriate medical care and failure to do so is ordinary or simple negligence sufficient to support a conviction of statutory manslaughter
C. Felony Murder
▪ Felony murder is essentially “murder without intent to murder” as intent was to commit only certain lesser acts (“transferred act” not “transferred intent”)
Lightens burden of prosecution w/ respect to mens rea (removes defenses dealing with frame of mind such as insanity and impairment)
▪ Model Penal Code Approach
ALI has recommended eliminating the felony murder rule
However, has provided that certain enumerated felonies (robbery, rape, arson, burglary, kidnapping, and felonious escape) create rebuttable presumption of extreme indifference to value of human life
▪ Arguments in favor of felony murder rule
Creating risk of death in the context of another criminal act is more culpable behavior than knowingly creating a risk of death in the context of an innocent or less culpable act
Deters felons from killing negligently or accidentally by holding them strictly responsible for killings they commit
Wrongdoer must run risk that things will turn out worse than they expect
▪ Arguments against felony murder rule
With same intent, punishment dependent solely on fortuity of outcome
Punishment rendered disproportionate to wrong for which offender is personally responsible
Small risk of murder sanction for an unlikely event is not sufficient to deter behavior of potential felons
Saxe Case
▪ Facts: Susan Saxe was one of five people who robbed a bank in Brighton, MA. The three men were ex-cons and the two women were Brandeis University seniors. As the group attempted to escape, a police officer responded to the silent alarm and the lookout, unaware the group had left the bank, shot the officer in the back. Saxe was indicted for murder under felony murder rule.
Regina v. Serne, CCC [1887]
▪ Facts: Defendants willfully set fire to Serne’s house and shop for insurance money and two of Serne’s children died. Charged with the willful murder of his son.
▪ Rule: Any act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a felony which causes death, should be murder (“inherently dangerous felony murder”)
▪ Holding: Not guilty; arson and insurance fraud are not inherently dangerous
People v. Stamp, Cal. (1969)
▪ Facts: Defendant burglarized victim and robbed at gunpoint. Victim, who had a history of heart disease, suffered a heart attack while lying on ground after defendant fled and died. Defendant convicted of 1st degree murder.
▪ Rule: Felony murder doctrine not limited to those deaths which are foreseeable, felon held in strict liability for all killings committed by him or his accomplices in the course of the felony
▪ Holding: Affirmed, felon takes victim as he finds him
▪ Serne/Stamp Split
Serne represents less strict version (“qualified”) version of felony murder rule
Stamp represents strict interpretation of felony murder rule
Misdemeanor Manslaughter Rule
▪ Involuntary manslaughter: killing “in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection
▪ Rule effectively allows a misdemeanor resulting in death to provide a basis for an involuntary manslaughter conviction without proof of recklessness or negligence
▪ Two theories available to establish involuntary manslaughter
Defendant’s conduct amounted to criminal negligence under the circumstances
In states’ recognizing unlawful-act doctrine, defendant’s unlawful act caused the death and proof of criminal negligence becomes unnecessary
▪ Limitations on unlawful-act doctrine
Proximate cause to injury
Regulatory offenses – restriction of doctrine to regulatory offenses
Dangerousness – limit doctrine to misdemeanors rising to level of criminal negligence or to violations that “evince a marked disregard for the safety of others”
1. Limitations on Felony-Murder Rule
Inherently Dangerous Felony Requirement
People v. Phillips, Cal. (1966)
▪ Facts: Defendant convinced parents of 8-yr-old child with fast-growing cancer of the eye to allow him to treat her without surgery, when surgery may have saved or prolonged her life. Child died within six months. Trial court instructed jury that if they found that the defendant committed the felony of grand theft (theft by deception) and that the child died as a proximate result, then they could convict him of 2nd degree felony murder.
▪ Rule: Felony-murder in CA could be triggered only by felonies inherently dangerous to life (in abstract)
▪ Holding: Reversed; instruction erroneous on grounds that grand theft did not meet “inherently dangerous felony” test required by CA as it could be committed in ways not inherently dangerous, and to hold otherwise would widen scope of rule beyond calculation
People v. Stewart, R.I. (1995)
▪ Facts: Defendant went on a crack binge and neither fed not cared for her 2-month-old child, who died from dehydration. Convicted of 2nd degree felony murder (felony was “wrongfully permitting a child to be a habitual sufferer”). Defendant argued that the felony is not inherently dangerous; relying on Phillips.
▪ Rule: Trier of fact should look to facts and circumstances of particular case to determine if felony was inherently dangerous in manner and circumstances in which it was committed
▪ Holding: Affirmed; motion for acquittal properly denied and Kansas is only state other than California to adopt abstract test of “inherently dangerous felony
▪ Phillips/Stewart Split
Philips examines felony categorically (“in the abstract”)
Stewart examines felony in context of particular facts (majority rule)
Hines v. State, Ga. (2003)
▪ Facts: When hunting, defendant mistook his friend for a turkey and shot him dead. Convicted of felony murder based on the underlying crime of possession of a firearm by a convicted felon. Defendant argued that felony not inherently dangerous.
▪ Rule: Felony inherently dangerous when dangerous per se or when committed as to create “foreseeable” risk of death
▪ Holding: Hines’ violation of the prohibition against convicted felons possessing firearms created a foreseeable risk of death and was an inherently dangerous felony supporting felony-murder conviction
▪ Dissent: Felony is inherently dangerous per se or as committed if it carries “a high probability that a death will result” and the ruling also adversely affects state’s hunters
The Merger Doctrine
▪ Felonious assault may not serve as a predicate felony that automatically makes any resulting death a murder
Assault (or other crime with intent to cause harm) “merges” and cannot trigger felony-murder rule
▪ No prevailing merger doctrine test
People v. Mattison, Cal. (1971): “independent purpose” test – upheld felony murder conviction on basis that defendant’s act had purpose independent of any intent to kill and felony murder rule would have deterrent effect in tempering willingness to sell drugs due to strict liability
➢ Can lead to perverse outcomes where lesser crime is elevated due to very fact that defendant denied having intent to kill
People v. Hansen, Cal. (1995): “included in fact” test – felony murder not permissible where the predicate felony is a pre-requisite for murder
People v. Burton, Cal. (1971)
▪ Facts: Defendant killed a person in the course of committing an armed robbery. Convicted of 1st degree felony murder. Argued that armed robbery is an offense already included within the offense of murder, so cannot support a felony murder instruction.
▪ Rule: Felony-murder cannot arise from a felony which is an integral part of the homicide on which it is based
▪ Holding: Trial judge correctly instructed on felony murder as defendant, by embarking on venture of armed robbery, brought himself within the class of persons who the Legislature has concluded must avoid causing death or bear the consequences of first-degree murder
Killings by Non-Felons
▪ Concerns responsibility of felons for deaths resulting from actions of police officers and private citizens trying to thwart the attempted crime
State v. Canola, N.J. (1977)
▪ Facts: Defendant, along with three accomplices, was in the process of robbing a store when a struggle ensued and the store owner shot and killed one of the co-felons. Defendant was convicted for the murder of his deceased co-felon.
▪ Rule: Traditional view of felony murder doctrine adheres to “agency” theory and does not extend to a killing not directly attributable to the act of the defendant or their compatriots in the unlawful enterprise
▪ Holding: Conviction overturned; regressive to extend felony murder doctrine beyond acts of felon and accomplices to lethal acts of third persons not in furtherance of the felonious scheme
▪ Concurrence: agrees with result but would also hold defendant liable for deaths of innocent person or police officer, excusing liability only for death of co-felon
IV. Rape
▪ Common Law
States differ in their approach to four issues: (1) gravity of facts required to be proved, (2) whether and in what way crime is split into distinctly graded offenses, (3) level of punishment authorized, (4) whether or when spousal rape is punishable
3 elements: sexual intercourse with (1) force, (2) against will (resistance), and (3) without consent (force)
▪ Model Penal Code – MPC § 213 #mpc
Imagines rape as a crime of violence; intimate intrusion on person’s sexual autonomy
§ 213.1 defines rape as: male who has sexual intercourse with a female not his wife if:
➢ (a) compels her by force or threat of imminent death, serious bodily injury, extreme pain, or kidnapping
➢ (b) he substantially impairs her power to assess/control her conduct through drugs, intoxicants or other means for purpose of preventing resistance
➢ (c) female is unconscious
➢ (d) female is less than 10 years old
Rape is a second degree felony unless: (i) actor inflicts serious bodily injury, or (ii) victim was not voluntary social companion and had not previously permitted sexual liberties, in which case it is elevated to first degree felony
§ 213.1(2) defines gross sexual imposition as: male who has sexual intercourse with female not his wife and commits third degree felony if:
➢ (a) compels her to submit by any threat that would prevent resistance by woman of ordinary resolution
➢ (b) knows she suffers from mental disease or defect which renders her incapable of appraising nature of conduct
➢ (c) knows she is unaware sexual act is being committed upon her or that she submits because she mistakenly believes that he is her husband
Homosexual rape and female on male rape would have to fit under § 213.2 (Deviate Sexual Intercourse by Force or Imposition) which speaks to “person” and not “male” actor
A. Actus Reus
1. Force and Resistance (MPC Culpability – Purposely or Knowingly)
State v. Rusk, Md. (1981)
▪ Facts: Woman meets man at bar and drops him off, when he takes keys in unfamiliar neighborhood;. Initiates sex and when she asks him to let her go and cries, he lightly chokes her. She asks again if he would let her go if she did what he wanted and when defendant said yes victim complied. Rusk disputes account of events. Court focuses on menacing look and light choking by Rusk.
▪ Rule: Force is an essential element of the crime of rape and to justify a conviction, evidence must warrant a conclusion either (1) that a victim resisted and her resistance was overcome by force, or (3) that she was prevented from resisting by threats to safety
▪ Rule: Victim’s fear must be reasonably grounded to obviate need for either proof of actual force by assailant or physical resistance on part of victim
▪ Holding: Reversal of conviction in error, as jury could have rationally concluded based on evidence of choking that essential elements of second-degree rape were proved
▪ Dissent: Law regards rape as crime of violence and force is an absolute requirement
Force and Resistance
▪ Force requirement
Growing (but minority) number of American jurisdictions depart from traditional approach and treat all instances of non-consensual intercourse as criminal offense
➢ Some statutes have eliminated force requirement and explicitly state intercourse in absence of consent is either rape or lesser degree of sexual assault
➢ Some courts have accomplished same result by interpreting statutory force requirement to include physical actions involved in intercourse itself
Majority of jurisdictions still require force and do not include “force inherent in intercourse” as meeting the requirement
▪ Resistance requirement
Even in states where resistance is no longer statutorily required, courts consider evidence of resistance as highly probative on question of consent
Argument against: law does not require that in defending oneself or one’s property from robbery, kidnapping, and assault, they risk injury or death by displaying resistance in face of attack – why should rape be any different? #policy
▪ Reasonable apprehension
People v. Warren
Rule: Complainant’s failure to resist when it was within power to do so conveys impression of consent regardless of her mental state, amounts to consent, and removes from the act performed an essential element of the crime (“lack of consent must be communicated in objective manner”)
Coercion and Duress
Should the notion of “force” be expanded so that element can be satisfied not only by physical force and threats to inflict bodily harm, but also by other forms of coercion?
▪ Implicit threats
State v. Alston, N.C.
Argument for liability: force standard effectively guarantees men freedom to intimidate women and exploit their weakness and passivity
Argument against liability: victim’s general fear may be justified by prior conduct, but general fear is not sufficient to show defendant used force required to support rape conviction
▪ Nonphysical threats
State v. Thompson (principal of high school threatens to prevent student from graduating)
Commonwealth v. Mlinarich (defendant assumes custody of juvenile delinquent and threatens to send her back to detention home)
Argument for liability #policy
➢ Force in more general sense is to “constrain by physical, moral, or intellectual means”
➢ Refusal to regard economically coerced sex as rape allows men to continue to use their economic superiority to gain sexual advantages,
Argument against liability: #policy
➢ force in its normal and ordinary connotation is physical compulsion, use of immediate threat of bodily harm, injury and we cannot stretch definition to include intimidation, fear, or apprehension
➢ Interpretation of forcible compulsion that is ambiguous and generic will create potential for a veritable parade of threats, express and implied, in support of accusations of rape and attempted rape
Model Penal Code Approach
➢ § 213.1(2) permits conviction for “gross sexual imposition” where submission compelled by threat of force or “by any threat that would prevent resistance by woman of ordinary resolution” #mpc
➢ Submission must result from coercion and not bargain
➢ Several states achieve result similar to that called for in § 213.1(2) by extending offense of rape or sexual assault to situations where consent is obtained by duress, coercion, extortion, or using a position of authority
2. Eliminating the Force Requirement
State in the Interest of M.T.S., N.J. (1992)
▪ Facts: 15 yr old girl and 17 yr old boy who lived in her house engage in consensual kissing and heavy petting and thereafter engage in unconsented sexual penetration. No evidence of unusual or extra force or threats.
▪ Rule: Any act of sexual penetration engaged in without affirmative and freely given permission of victim to the specific act constitutes offense of sexual assault, in line with expectation of privacy and bodily control inherent in other bodies of private and public law
▪ Holding: Reversed; evidence sufficient to support jury finding that boy was guilty of sexual assault
▪ NOTE: Reflects shift to a “pure consent” model that disposes with force requirement
M.C. v. Bulgaria, ECHR [2003]
▪ Facts: 14 year old girl alleged she was raped by two older men. Bulgarian prosecutors dropped the investigation after they determined there was not sufficient evidence of force/threats beyond a reasonable doubt, despite medical report. Both appeals dismissed because physical force/threats presuppose resistance in international law. Prosecutors assumed that they can’t prove mens rea to overcome nonconsent without proof of resistance.
▪ Rule: Mens rea is intention to effect sexual penetration and knowledge that it occurs without consent of victim, force is not an element per se of rape and a narrow reading of mens rea must be avoided to allow evasion of liability by those relying on coercive circumstances
▪ Holding: In present case there is a violation of State’s positive obligations to prevent inhuman and degrading treatment and to afford everyone a respect for their private life
3. Absence of Consent
Is consent a state of mind (something a person feels) or is it an action (something a person does)?
▪ Traditional law avoided conundrum by requiring non-consent in both senses, requiring evidence establish both subjective unwillingness and external actions refusing consent
▪ Possible conceptions of non-consent:
Verbal resistance (saying “no”) plus other behavior
Verbal resistance alone (“no” always means “no”)
Verbal resistance or passivity, silence, or ambivalence (anything other than affirmative permission)
All words and actions other than express verbal permission (everything other than saying “yes”)
Defective Consent
▪ Maturity
Age of consent (“statutory rape”)
➢ Reflects concerns including: (1) young person’s capacity to make mature decisions, (2) social goal of deterring teen pregnancy, 3) risk of implicit coercion
Mental retardation
➢ MPC § 213.2(b) imposes liability when defendant knows person consenting to sex suffers from mental disease or defect which renders her incapable of appraising nature of conduct #mpc
▪ Incapacity (drugs and alcohol)
All states impose liability for rape when defendant has intercourse with completely unconscious person
Model Penal Code is especially restrictive, imposing liability only when (1) defendant personally administers intoxicant, (2) without victim’s knowledge, and (3) for purpose of preventing resistance – MPC § 213.1(1)(b) #mpc
People v. Giardino (16-year-old victim drank, became “tipsy” and then actively participated in numerous acts of intercourse and oral sex
➢ California Supreme Court holds intoxication can invalidate consent even when it was not physically incapacitating and suggests test consider (1) whether alcohol rendered victim “unable to make a reasonable judgment as to nature and harmfulness of conduct,” or (2) whether victim “would not have engaged in intercourse had she not been under influence of intoxicants”
4. Deception (MPC Culpability – Recklessly)
People v. Evans, N.Y. App. Term (1975)
▪ Facts: Defendant manipulated young woman by posing as psychologist, luring her back to his apartment, and then telling her that “I could kill you. I could rape you. I could hurt you physically” when she was alone with him in his apartment.
▪ Rule: Rape cannot be achieved by fraud, trick, or stratagem when actual consent is involved
▪ Rule: Controlling state of mind must be that of speaker and it must be shown that defendant had criminal intent beyond reasonable doubt; words taken as threat by victim, but not so intended by defendant are not basis of criminal liability
▪ Holding: Not guilty, force requirement not met and threat beyond reasonable doubt not established
▪ NOTE: Reflects shift to approach focused on conduct of defendant and not victim
Boro v. Superior Court, Cal. (1985)
▪ Facts: Defendant posed as doctor, told victim she had contracted dangerous disease and said cure required her to have sex with man injected with serum. Victim understood the nature of the act but thought it was for a good reason.
▪ Rule: If deception causes misunderstanding as to fact itself (in the factum) there is no legally recognized consent as consent was not obtained for that purpose, but where deception relates not to the act done, but merely some collateral matter (in the inducement) consent is valid
▪ Holding: Not guilty
Dissent: Consent should be restricted to cases of true, good faith consent, obtained without substantial fraud or deceit
▪ Generally there is neither civil nor criminal liability when false representations are used to obtain sex
B. Mens Rea
1. Mistake as to Consent (MPC Culpability – Negligently)
Commonwealth v. Sherry, Ma. (1982)
▪ Facts: Three male co-workers (doctors at Boston hospital) left party and took victim to a house away from the city. Defendant was not in fear at this time. At the house, they did drugs and the three men then attempted to have sex with victim. Victim verbally protested and then each defendant had sex separately with victim. Defendants dispute any unwillingness by victim.
▪ Rule: Victim is not required to use physical force to resist, resistance is enough when demonstrating that lack of consent is “honest and real”
▪ Rule: Mistake of fact is not a defense, without consideration of reasonableness
▪ Holding: Convictions upheld, evidence sufficient to permit jury to find intercourse by force and against will of victim
Commonwealth v. Fischer, Pa. (1998)
▪ Facts: College students had engaged in intimate contact earlier in the day (according to defendant they had “rough sex,” while victim said they had just made out a little). Students met up again later and had a disputed encounter (victim testifies defendant forced himself on her, defendant says they got into a dispute about whether “no means yes” and ultimately she left the room angry).
▪ Rule: mistake of fact not a valid defense to rape
▪ Holding: Affirmed
▪ Strict liability
Weight of American authority is against strict liability view of Massachusetts and Pennsylvania as to consent
▪ Recklessness vs. negligence
Most recent American cases permit mistake defense, but only when defendant’s error as to consent is honest and reasonable
Alaska is one of few jurisdictions that require proof of recklessness
V. Justifications and Excuses
▪ Justifications and excuses do not seek to refute any required element of prosecution’s case; they suggest further considerations that negate culpability even when all elements of offense are clearly present
Justification: accept responsibility but deny that it was bad as actor was entitled to act accordingly (conduct/offense)
Excuse: admit that action was bad but don’t accept full (or even any) responsibility as it wasn’t truly actor acting “of own accord” (capacity/offender)
Excuse is generally more susceptible to a subjective standard than justification
A. Self-Defense
1. Reasonableness
▪ Common Law
United States v. Peterson: Necessity is pervasive theme of well-defined conditions which the law imposes on the right to kill or maim in self-defense
Elements of self-defense:
1) Threat, actual or apparent, of the use of deadly force against the defender
2) Threat must have been unlawful and immediate threat, so that defender must have believed that he was in imminent peril of death or serious bodily harm
3) Defender must have believed response was necessary to save himself
Beliefs of defendant must not only have been honestly entertained, but objectively reasonable
▪ Grading
Objective test: person invoking self-defense on grossly unreasonable grounds kills intentionally and has no defense of self-defense (prevailing test)
Imperfect-self defense
➢ One approach classifies above crime as voluntary manslaughter, on theory that malice is lacking, similar to killing in heat of passion
➢ Second approach classifies above crime as involuntary manslaughter, on theory that actor’s culpability most closely approximates that of a person whose criminal negligence causes an unintentional death
▪ Model Penal Code Approach
Justification addressed in MPC §§ 3.01 – 3.11 #mpc
MPC approach is that a person who kills in an honest but unreasonable belief in the need to kill would be guilty of negligent homicide (similar to common law involuntary manslaughter approach)
➢ Justification available whenever actor themselves subjectively believes that necessary circumstances are present – MPC § 3.04(1) #mpc
➢ When actor is reckless or negligent in having such belief or acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, justification afforded under MPC §§ 3.03 to 3.08 is unavailable in the prosecution of an offense for which recklessness or negligence suffices to establish culpability – MPC § 3.09(2) #mpc
MPC position represents a partial individualizing of the objective standard of the reasonable person - §2.02 calls for a judgment of whether defendant’s conduct “involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.” #mpc
People v. Goetz, N.Y. (1986)
▪ Facts: Shot four youths on subway who he thought were trying to mug him and charged with attempted murder. Shot multiple times, to kids at a distance, paused to make sure he shot them; fled but surrendered later. Was mugged in the past and knew none of the kids had a gun, but thought he’d be maimed.
▪ Rule: Person may use physical force upon another person when and to the extent he reasonably believes it necessary to defend themselves or a third person from what they reasonably believe to be the use of imminent and unlawful physical force by another person, where reasonable belief is viewed objectively
▪ Holding: Reinstated dismissed counts; cannot impute an intent to alter laws of justification to allow perpetrator to go free simply because that person believed his actions were reasonable and necessary to prevent some perceived harm
Comparing Prior History in Goetz and White
▪ White Facts: White shoots and claims self-defense when 4 white guys show up on his doorstep threatening his son. Claims fear established because of a broader history of racial violence and Klan lynchings in the south.
▪ Goetz and White involve increasing levels of abstraction with respect to interactions
Direct: (Goetz = none, White = yes)
Direct prior history (Goetz = none, White = son’s friends)
Prior history with like or similar victim (Goetz = previously mugged, White = Klan)
▪ Key Question: what factors ill we consider in terms of prior history?
Size?
Quantity?
Race?
Prior history? If so – how far back and under what circumstances?
2. Battered Women
▪ Dr. Lenore Walker on Battered-Woman’s Syndrome (BWS)
Woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights
Couple must go through battering cycle at least twice for woman to be classified as battered woman
➢ Tension-building stage: minor battering incidents and verbal abuse
➢ Acute battering incident: more severe violence
➢ Extreme contrition and loving behavior on part of battering male
▪ Reasonableness
Kelly: Most courts agree syndrome evidence is relevant to reasonableness, but standard remains that of a reasonable person, and not a reasonable battered woman
Edwards: Few courts have moved closer to fully subjective standard of “otherwise reasonable person suffering from battered spouse syndrome”
Leidholm: Further down subjective standard, states jury should “assume the physical and psychological properties peculiar to the accused”
Argument for subjective standard: jury needs expert testimony on reasonableness precisely because they would not otherwise understand that battered woman’s prediction of likely extent and imminence of violence is particularly acute and accurate
Argument against subjective standard: relativization of ethical standards is impossible for law to adopt if it is to maintain its moral basis
▪ Scientific reliability
Admissibility of BWS testimony is overwhelmingly accepted by courts and legislatures
Arguments against reliability
➢ Claim that battered woman develops “learned helplessness” and believe themselves unable to flee lacks verifiable empirical support
➢ More consistent finding with theoretical and empirical findings of learned helplessness is that those battered women who kill their batterers are those who actually do not manifest learned helplessness
➢ Walker’s conclusion that woman’s passivity ends when she overcomes learned helplessness means syndrome fails to explain why she exercises deadly force rather than merely leaving the relationship
▪ Feminist critiques of BWS
Institutionalizes within criminal law negative stereotypes of women
Rests on and reaffirms understanding that women are incapable of rational self-control
▪ Extension to other syndromes
Werner (murder defendant raises “Holocaust Syndrome” as justification, which causes people to be unusually assertive in confrontational settings, as a reaction to memory of Jewish concentration camp members who did not fight back)
➢ Holding: Fact that defendant was not ordinary and prudent man with respect to self-defense does not entitle him to an enlargement of statutory defense on account of psychological peculiarities
➢ Dissent: When a relatively large number of persons exhibit same symptoms resulting in intense mental anguish or emotional trauma, scientific, technical, or other specialized knowledge by a qualified expert should be admissible as opinion evidence to assist trier of fact
State v. Kelly, N.J. (1984)
▪ Facts: Battered wife stabbed husband with pair of scissors during argument in street, believing he was about to kill her when he came running at her with his hands raised. State presented alternate version of events that involved defendant chasing after husband after they were separated following an initial scuffle.
▪ Rule: Testimony on battered women’s syndrome (BWS) is relevant to aid jury’s evaluation of reasonableness of defendant’s fear for her life
▪ Holding: Remanded
State v. Norman, N.C. (1989)
▪ Facts: Defendant beaten and abused terribly by husband and threatened with death. She tries to get help multiple times from police, social services, and mental health center, but husband intervened repeatedly so that she could not. She obtains weapon and shoots husband in his sleep.
▪ Rule: Defendant entitled to defense of perfect self-defense when evidence shows that at time of killing it appeared to defendant and she reasonably believed it necessary to kill decedent to save herself from imminent death or great bodily harm
▪ Rule: Defendant entitled to defense of imperfect self-defense (1) when defendant is initial aggressor, but without intent to kill or to seriously injure the decedent, and the decedent escalates the confrontation to a point where it reasonably appears to the defendant to be necessary to kill the decedent to save herself from imminent death or great bodily harm, and (2) where defendant uses force in excess of what is reasonably proportional based on initial threat or injury
▪ Rule: Imminent requires an “immediate danger, such as must instantly be met, such as cannot be guarded against by calling for the assistance of others or the protection of the law”
▪ Holding: Reversed; defendant not entitled to jury instruction on either perfect or imperfect self-defense
▪ Dissent: Question is not the objective imminence of the threat, but the reasonableness in the mind of a person of ordinary firmness
▪ NOTE: Imperfect self-defense reduces culpability of defendant, but it is not justified so as to entitle them to acquittal, and they are guilty of at least involuntary manslaughter
Imminent Danger Requirement
▪ Non-confrontational “self-defense”
Most courts remain unwilling to admit battered-spouse evidence or jury instructions on legitimate self-defense where abuser is killed in his sleep
▪ Imminence often operates as a proxy for any number of other self-defense factors: strength of threat, opportunity to retreat, proportionality, and aggression
▪ Seeking help
Courts have uniformly held that self-defense is not available to a battered woman who hires or persuades a third party to commit the killing
Grimshaw: Lisa Grimshaw convinces two acquaintances to beat her battering spouse, but they get carried away and beat him to death. They then dispose of the body and take steps to cover up the incident.
▪ Defense of another
Widely accepted rule is that someone who comes to the aid of a person in peril can use deadly force to prevent the attack, under the same circumstances that would justify the use of deadly force by the endangered person themselves – MPC § 3.05
▪ Imminence in other contexts
Schroeder: (19-year-old inmate stabs his older cellmate while the latter is asleep in response to a threat to sell him out to another inmate for sexual favors)
➢ Holding: no evidence to find defendant could believe assault was imminent
Ha: (defendant shoots antagonize from behind in response to threat, and seeks to justify it based on decedents violent history and cultural differences that made police intervention unlikely)
➢ Holding: Inevitable harm is not same as imminent harm and a reasonable fear of future harm is not justifiable self-defense
▪ Model Penal Code Approach
Relaxes imminence requirement, providing it is sufficient for actor to reasonably believe that use of defensive force was “immediately necessary” – MC § 3.04(1)
Jahnke v. State, Wyo. (1984)
▪ Facts: 16-year-old boy waited with shotgun for parents to return from dinner and shot his abusive father dead.
▪ Holding: Conviction upheld; to permit capital punishment to be imposed upon subjective conclusion of individual that prior acts and conduct of the deceased justified the killing would amount to a leap into the abyss of anarchy; battered person evidence is permissible to assist jury in evaluating reasonable of defendant’s fear in cases involving recognized circumstances of self-defense
▪ Dissent: Expert testimony necessary to explain battered-person syndrome and way these people respond to perceived imminence of danger as they harbor fears, anxieties and apprehensions non-brutalized juror is unfamiliar with
3. Duty to Retreat
▪ Common Law
Significant number of American jurisdictions adopted/maintain “true man” or no retreat rule
➢ Jurisdictions retaining no-retreat rule now expressly reject “true man” justification and instead justify that rule requiring retreat confuses jury because of difficulty in determining whether defendant knew he could retreat with complete safety
➢ 15 states have adopted “stand your ground” statutes that permit actor to meet force with force, including deadly force, even when retreat is possible
Castle exception
➢ Distinct tendency to favor requirement of retreat in settings outside the home
➢ Exception generally made when defendant attacked in own home
➢ Most cases hold that retreat is not required when one occupant kills a co-occupant, such as a spouse or child
▪ Model Penal Code
Abbott: MPC states that retreat arises only when defendant resorts to a deadly force and it is not justifiable if actor knows that they can avoid necessity of using such force with complete safety by retreating – MPC § 3.04(2)(b)(ii) #mpc
State v. Abbott, N.J. (1961)
▪ Facts: Dispute between neighbors escalates and dad brings out hatchel. In struggle for it the family was hurt. Every single one of em.
▪ Rule: Issue of retreat arises if defendant resorts to deadly force, which is not justifiable if actor knows they can avoid the necessity of using such force with compete safety by retreating
▪ Holding: Reversed
B. Necessity and Duress
1. Necessity
▪ Necessity: justification based on choice between lesser of two evils (or penal statutes)
▪ New York and Model Penal Code approaches compared
New York differs from MPC in requiring that conduct be “an emergency measure to avoid imminent injury”; MPC holds it is a mistake to erect imminence as an absolute requirement since there may be situations in which an otherwise illegal act is necessary to avoid an evil that may occur in the future
New York also requires that situation gives rise the necessity in action be occasioned or developed “through no fault of the actor”; MPC holds actor could be prosecuted for offenses for which negligence would suffice, but would not be deprived of necessity defense for offenses committed in attempt to address greater evil
▪ Defendant needs no general justification defense when charged with a crime based on recklessness or negligence since it is implicit in the charge itself that the defendant’s conduct was not justified; unjustifiability of conduct becomes an element of the charge itself and must be proved by the state
▪ Seldom (if ever) used in a death case as killing someone is difficult to justify as the lesser of two evils (“we don’t balance lives”)
▪ Modern Penal Code Approach – MPC § 3.02 #mpc
People v. Unger, Ill. (1977)
▪ Facts: Defendant escaped prison after being assaulted and sexually molested by fellow inmates and then threatened with death because of belief he had reported the assault to prison authorities. Defendant testified he did not report the incident to authorities due to fear of retaliation.
▪ Rule: Defense of necessity arises when defendant is forced to choose between the lesser of two admitted evils
▪ Rule: Lovercamp outlines factors under which defense to prison escape under necessity can be submitted to jury: (1) prisoner faced with specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future, (2) no time for complaint to authorities or history of futile complaints, (3) no time for opportunity to appeal to courts, (4) no evidence of force or violence used towards prison personnel or other innocent persons in the escape, (5) prisoner immediately reports to proper authorities when they have attained a position of safety from the immediate threat
▪ Holding: Affirmed; defendant was entitled to submit defense of necessity to jury as Lovercamp factors are only indicative and not all necessary to establish valid necessity defense
▪ Dissent: necessity defense must be narrowly circumscribed to discourage potential escapes, maintain prison discipline, and prevent injury to prison guards, police, or private citizens
Borough of Southwark v. Williams, E.R. [1971]
▪ Facts: Defendants were homeless families in dire straits in London, which was suffering an extreme housing shortage, and entered some empty houses belonging to the Borough and became squatters there.
▪ Rule: Plea of necessity must be refused to the hungry and homeless
▪ Holding: Court ordered the defendants out, doctrine of necessity must be carefully circumscribed
Commonwealth v. Leno, Mass. (1993)
▪ Facts: Massachusetts prohibits distribution of hypodermic needs without a prescription. Defendants operated a needle exchange program in an effort to combat the spread of AIDS.
▪ Rule: Danger defendants seek to avoid must be clear and imminent, rather than debatable or speculative
▪ Holding: Affirmed
Commonwealth v. Hutchins, Mass. (1991)
▪ Facts: Defendant charged with illegal possession and cultivation of marijuana. Defendant suffered from progressive systemic sclerosis and that ingestion of marijuana had produced remarkable remission.
▪ Rule: Alleviation of medical symptoms does not clearly and significantly outweigh the potential harm to the public of declaring certain social ills unpunishable
▪ Holding: Affirmed; evidence does not raise the defense of necessity
▪ Dissent: Under certain limited circumstances, value protected by law is eclipsed by a superseding value which makes it inappropriate and unjust to apply the usual criminal rule
United States v. Schoon, 9th Cir. (1992)
▪ Facts: Protestors broke into gov’t office and threw around fake blood to protest US involvement in killings in El Salvador.
▪ Rule: To invoke necessity defense, defendants must show (1) they were faced with a choice of evils and chose the lesser evil, (2) they acted to prevent imminent harm, (3) direct causal relationship between conduct and harm to be averted, and (4) no legal alternatives
▪ Holding: Affirmed; indirect congressional policies can never meet all the requirements of the necessity doctrine
Necessity and Social Ills in Williams, Leno, Hutchins, and Schoon
▪ Although in each case defendant(s) may be justified in addressing a social need, courts reason that greater evil would be allowing citizens to decide for themselves which laws are just (inability to “draw the line”) #policy
▪ Necessity defense also seems to preclude application to civil disobedience as there is no choice between two crimes; one choice involves remaining in a non-criminal, albeit awful state
2. Duress
▪ Common Law
New Jersey statute departed from MPC by treating duress like provocation, reducing murder to manslaughter, rather than excusing murder altogether
Great majority of recent statutory revisions have rejected MPC’s flexible approach and preserved some requirement that the threatened harm be “immediate,” “imminent” or “instant”
Great majority of cases and statutory revisions exclude defense of murder in murder prosecutions
Courts are divided on invoking duress defense in felony murder prosecution
▪ Model Penal Code Approach
Duress addressed in MPC § 2.09 #mpc
Provides for defense in cases where the actor was coerced by force or threats of force “that a person of reasonable firmness in his situation would have been unable to resist”
Account is taken of the actor’s “situation” in the same scope it is accorded in appraising recklessness and negligence
➢ Stark, tangible factors considered in making exculpatory judgment such as: size, strength, age, health
➢ Matters of temperament are not considered in making exculpatory judgment
Courts are split on whether evidence of low IQ or mental retardation should be admissible to modify “reasonable person” standard
MPC permits application of duress to murder cases
▪ Battered Woman’s Syndrome
In self-defense, woman avoids imminent danger by responding in kind against its source
When claiming duress as a defense to participating in a robbery or drug deal under pressure from her abuser, woman avoids her abuser’s threat by misconduct directed against an innocent third party
▪ Gang Membership
Common approach is to hold that where a defendant voluntarily, and with knowledge of its nature, joined a criminal organization or gang which he knew might bring pressure on him to commit an offense and was an active member when he was put under such pressure, he cannot avail himself of the defense of duress
▪ Necessity and Duress Compared
Necessity refers to defense resting on rationale of justification; duress refers to defense resting on rationale of excuse
Duress defined in § 2.09 purely as an excuse, it is not required that he chose the lesser evil
Model Penal Code allows necessity justification regardless of source of peril; makes duress excuse available only when the peril confronting the defendant arises from another person and not a natural condition
State v. Toscano, N.J. (1977)
▪ Facts: Defendant chiropractor participated in insurance fraud scheme under alleged duress to protect his wife from bodily harm. State alleged defendant instead participated to pay off gambling debts.
▪ Rule: Duress is a defense to a crime other than murder if defendant engages in conduct because they were coerced to do so by use of, or threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist
▪ Holding: Reversed and remanded
United States v. Fleming, C.M.R. (1957)
▪ Facts: Defendant collaborated with the enemy while held as a POW in Korea. Sought duress when threatened with slow death by starvation, deprivation and exposure to harsh weather.
▪ Rule: Danger of death or great harm must be immediate to allow defense of duress (“last ditch”)
▪ Holding: Conviction upheld; accused cannot avail himself of defense of duress
United States v. Contento-Pachon, 9th Cir. (1984)
▪ Facts: Colombian cab driver who brought cocaine to the US because he and his family were threatened with death. Trial court excluded defense of duress on the grounds that the threat was not of imminent and inescapable harm.
▪ Rule: Necessary elements of defense of duress are: (1) immediacy, and (2) inescapability of the threat; immediacy can be established if threat of future harm is not vague and is severe
▪ Holding: Reversed; Triable issue on element of escapability
Ruzic v. Ruzic, D.L.R. [1998]
▪ Facts: Young woman who brought heroin from Yugoslavia to Toronto after harmed and threatened with additional future harm by a known killer in Yugoslavia. Defendant claimed she didn’t tell police because she no longer trusted the Yugoslav authorities, who were under mafia-like influence.
▪ Rule: Duress defense is applicable where actions are rendered morally involuntary because defendant has no realistic choice but to comply
▪ Holding: Acquittal upheld
Inducements
▪ Entrapment
Excessive inducements offered by government agents
Only version of a defense based on inducement that exists in American law
Primary purpose is to deter governmental overreaching in undercover operations, rather than to ensure that punishment accords with culpability
C. Insanity
▪ Model Penal Code MPC § 4.01 #mpc
▪ Terminology
Mental illness: medical term used by clinicians to refer to a mental disorder that is recognized by the therapeutic community
Insanity: legal term that refers to a person’s mental state at the time of the commission of a criminal offense when that mental state legally precludes a finding of criminal responsibility
Incompetence: legal term that refers to a person’s mental state at the time of a legal proceeding, lacking sufficient mental capacity to understand or participate
▪ Competence to stand trial
Model Penal Code § 4.04 addresses generally accepted test of competence to stand trial and be sentenced
Sell: Constitution permits forced medication solely to induce trial competence when: (1) government’s interest in trying defendant for particular crime at issue is important, (2) forced medication is substantially likely to render defendant competent and substantially unlikely to have side effects that will interfere significantly with defendant’s ability to assist defense counsel, (3) alternative, less intrusive treatments are unlikely to achieve substantially the same results, and (4) treatment is medically appropriate
Most courts hold defendant is competent to stand trial if suffering from total amnesia concerning alleged crime, but otherwise in full command of faculties
▪ Execution
Wainwright: Supreme Court held that Eight Amendment’s proscription of cruel and unusual punishment bars execution of the insane
One of the death penalty’s critical justifications, its retributive force, depends on the defendant’s awareness of the penalty’s existence and purpose
▪ Administering the Insanity Defense
Most jurisdictions require that decision to raise insanity issue be left entirely within defendant’s control, because verdict can lead to longer confinement, more intrusive treatment, or greater stigma
Civil commitment allows protection of public while also respecting person’s innocence
➢ Standard of proof is high – both mental illness and dangerousness must be proven by clear and convincing evidence
➢ Jones: Supreme Court upheld constitutionality of mandatory commitment and held that commitment could proceed indefinitely, even when period of confinement exceeded maximum sentence authorized for the underlying offense
American jurisdictions differ on (1) how much evidence is required before question of defendant’s insanity becomes an issue that must be established by the evidence, and (2) who bears burden of persuasion where issue must be established by the evidence
➢ Some states require only “some evidence”
➢ 38 jurisdictions, including the federal court system, place burden of proof of insanity on the defense
1. Formulating an Insanity Standard
▪ 4 Tests (or “prongs”) of Insanity Defense
1) Cognitive
2) Moral prongs
3) Volitional (“irresistible impulse”)
4) Product (of mental illness/disease)
▪ Trend in favor of adoption of MPC approach on insanity was abruptly reversed following 1982 trial of Hinckley, who shot and wounded President Reagan in an assassination attempt, and was found not guilty by reason of insanity
Proposals to restrict defenses based on mental illness included: (1) adjustments in burden of proof, changes in disposition of insanity acquittees, introduction of a separate verdict of “guilty but mentally ill,” and complete abolition of the defense
Majority of states have returned to some form of the M’Naghten rule, with a minority retaining the MPC approach
M’Naghten’s Case, H.L. (1843)
▪ Facts: Defendant shot and killed secretary to the Prime Minister; mistaking the secretary for the Prime Minister. Defense introduced expert and lay testimony indicated that defendant was obsessed with delusions and suffered from acute insanity.
▪ Rule: To establish insanity defense, it must be proved that at time of committing act, accused was laboring under disease of the mind (and not mere excitability including passion, stupidity, obtuseness, lack of self-control, or impulsiveness) so as not to know the nature and quality of the act they were doing (cognitive), or that it was wrong if they did know the nature and quality of the act (moral)
▪ Holding: Jury verdict of not guilty, on the ground of insanity
▪ Rationale: Law is not directed, as is medical science, to curing mental infirmities and the criminal law is not directed, as is civil law, to the care and custody of people of weak mind
Blake v. United States, 5th Cir. (1969)
▪ Facts: Defendant charged with bank robbery. Defendant had electroshock therapy and psychiatric treatment for over 20 years, as well as alcohol and drug abuse. There was psychiatric testimony that he was in a psychotic episode at the time of the robbery, but also that he was a sociopath that wasn’t suffering from a mental disease.
▪ Rule: To establish insanity defense, it must be shown that at the time of act, as a result of mental disease, defendant demonstrates a “substantial lack of capacity” to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law
▪ Holding: Court abandons “absolute mental disorientation” Davis standard for the MPC “substantial lack of capacity” test
United States v. Lyons, 5th Cir. (1984)
▪ Facts: Indicted for obtaining controlled drugs (narcotics prescribed for pain), defendant attempted to show he suffered from painful ailments and that he became addicted to the prescribed pain meds. He also sought to introduce expert testimony that the drugs affected his brain so that he lacked substantial capacity to conform to the law.
▪ Rule: Person is not responsible for criminal conduct on grounds of insanity only if at the time of that conduct, as a result of mental disease or defect, he is unable to appreciate the wrongfulness of that conduct.
▪ Holding: Court withdraws recognition of the volitional prong of the insanity defense
▪ Dissent: Decision that ensures undeserved, and therefore unjust, punishment in the name of avoiding moral mistakes rests on a peculiar notion of morality
▪ Rationale for withdrawal of recognition of volitional prong: (1) insufficient scientific bases for measuring person’s capacity for self-control, (2) risks of fabrication and “moral mistakes,” (3) volitional test largely redundant to cognitive test, and (4) current state of medical knowledge makes it essentially impossible for prosecutor to establish sanity beyond a reasonable doubt
2. Diminished Capacity and Diminished Responsibility
Diminished Capacity
▪ Involves use of evidence of mental disorder to negate a required mens rea
▪ Most states do not impose special restrictions on use of mental health evidence to rebut a required mens rea
▪ Variety of restrictions
Total ban: bar all use of mental health evidence to negate mens rea
Capacity evidence: prohibit use of mental health evidence to establish lack of capacity to form a mental state, but allow such evidence on issue of whether defendant actually had the relevant mental state
Specific intent: disallow use of mental health evidence to show lack of capacity, but allow it to negate mens rea for reasons other than lack of capacity, where required mens rea is a specific rather than general intent
United States v. Brawner, D.C. Cir. (1972)
▪ Facts: Defendant has abnormal mental condition
▪ Rule: Expert testimony as to abnormal mental condition may be introduced if it is relevant to negative, or establish, the specific mental condition that is an element of the crime
▪ Holding: Judge must determine if testimony is grounded in sufficient scientific support to warrant its use in the courtroom
Clark v. Arizona, US (2006)
▪ Facts: Clark killed a police officer, thinking he was an alien impersonating government agents and trying to kill him. Charged with first degree murder under AZ statute for “knowingly and intentionally” killing a cop in the line of duty. Sought to have expert testimony introduced as evidence of his undisputed paranoid schizophrenia to prove he did not have requisite mens rea for the offense.
▪ Rule: Arizona only allows observation evidence of actual behavior and behavioral tendencies to be submitted to have a bearing on mens rea (or lack thereof)
▪ Holding (Souter): Affirmed; Arizona has sensible reasons for assigning risks as it has done by channeling the evidence
▪ Dissent (Kennedy): Mott rule is problematic because it excludes evidence no matter how credible and material it may be to disproving an element of an offense
Diminished or Partial Responsibility
▪ Fact that defendant was mentally disturbed entitles them to reduction in severity of the sentence, even though prosecution has proved all legal elements required for conviction
▪ Recognized by some European jurisdictions, closest comparable doctrine in American law are sentencing provisions authorizing courts to use discretion to impose lesser sentence in cases of reduced capacity
▪ Model Penal Code chose to conform to the traditional principle rejecting statutorily authorized reduction of punishment for reduced levels of mental capacity
Blurs law’s message that there are certain minimal standards of conduct to which every member of society must conform and undercuts the social purpose of condemnation
3. Note on Environmental Deprivation
▪ Rotten Social Background
Proposed defense based on extreme poverty, reasoning that social and economic background can impair behavior controls
Arguments against
➢ Rarely will environmental adversity completely deprive a person’s power of choice
➢ Skirts paternalism
➢ Effective criminal justice system must hold people accountable and cannot function under conditions of boundless excuses and no moral authority for the state to punish
➢ Changes status of persons from invisible to victimized
VI. Expanded Liability
Are there bases for expanding liability beyond the traditional concepts of criminal liability, which require causation, actus reus, and mens rea?
▪ Distinguishing Attempt, Complicity, and Conspiracy
Attempt: mens rea and uncompleted act of same actor
Aiding and abetting: mens rea of one actor held accountable for act of another
Conspiracy: (similar to aiding and abetting) mens rea of one actor, held accountable for act of another; question is how far in advance of act should original actor be held accountable for contributory actions
A. Attempt
▪ Definitions
“with intent to commit a crime”
“engages in conduct which tends to effect the commission of a crime”
“attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration”
“with intent to commit a specific offense”
“does any act which constitutes a substantial step toward the commission of that offense”
▪ Usual punishment is a reduced factor of the punishment for the completed crime
▪ Model Penal Code - § 5.01(1) #mpc
▪ Arguments for attempt
▪ Arguments against attempt
Punishing only those who actually commit harm gratifies natural public feeling and has same deterrent effect
Reflects an element of populism
Whether or not people should be branded as criminals, imprisoned, and even put to death, should not be a matter of a lottery
Principle of proportionality does not decree that severity of punishment be proportionate to the offender’s good or bad luck, but rather to his blameworthiness
▪ Intent
Attempt requires a purpose (“specific intent”) to produce the proscribed result, even when recklessness or some lesser mens rea would suffice for conviction of the completed offense
➢ To attempt something is to try to accomplish it, and one cannot be said to try if they do not intend to succeed
➢ One who intends to commit a criminal harm does a greater moral wrong than one who does so recklessly or negligently
➢ Important to show that act was likely to be followed by harmful consequences
➢ Necessary potential for future harm is present when defendant knows that prohibited result is practically certain to occur or when he recklessly disregards a substantial risk
▪ Attempted felony murder
Most states have rejected concept of attempted felony murder
▪ Attempted manslaughter
Where attempt requires specific intent, there can be no attempted involuntary manslaughter, as essence of involuntary manslaughter is unintentional killing
Mens Rea
Smallwood v. State, Md. (1996)
▪ Facts: Defendant aware that he was HIV+ and that he needed to practice safe sex, but raped women and did not use condom (knowingly exposed them to risk). Convicted of assault with intent to murder his rape victims. Argues that max inference is reckless endangerment in creating risk of infection.
▪ Rule: Under proper circumstances, intent to kill may be inferred from use of a deadly weapon directed at a vital part of the human body
▪ Attempt requires explicit statements or specific actions of such an intent
▪ Holding: Reversed
Preparation versus Attempt
▪ To constitute criminal attempt, first step along the way is not necessarily sufficient and final step is not necessarily required
People v. Rizzo, N.Y. (1927)
▪ Facts: Group planned to rob payroll clerk, but couldn’t find him.
▪ Rule: Attempt considers only those acts which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed, but for timely interference (“dangerous proximity to success” or “substantial steps” test)
▪ Holding: Not guilty of attempt to commit robbery when they found nor reached presence of intended victim
Abandonment
▪ Abandonment is recognized in some jurisdictions as a complete defense under circumstances manifesting a voluntary and complete renunciation of criminal purpose
▪ MPC § 5.01(4) defines “voluntary” and “complete” renunciation #mpc
▪ Equivocality test
Looks to how clearly defendant’s acts bespeak his intent
➢ Law does not punish men for guilty intentions or resolutions, but for overt acts which are sufficient in themselves to declare and proclaim the guilty purpose with which they are done
McQuirter v. State, Ala. (1953)
▪ Facts: Defendant found guilty of attempt to commit an assault with intent to rape after he allegedly followed the woman (black man and white woman in Alabama in the 50s). Assault with intent is itself an attempt. Waited near plaintiff’s home and followed her for some time. Police say he admitted planning to get the first woman that came buy and take her to cotton patch and kill her if she screams – defendant denies making any threatening gestures or making alleged statement.
▪ Rule: Intent is a question to be determined by jury
▪ Holding: Affirmed; Evidence sufficient to warrant submission of question to jury and sustain conviction
B. Complicity (“Aiding and Abetting”)
▪ Doctrine of complicity imposes liability on actor who is to blame for the conduct of another
Aiding and abetting: accessory who is not the chief actor, nor present at performance, but yet some way concerned
Also called “being an accomplice” or “being an accessory”
▪ Not a separate offense with its own penalty
Accomplices and principals are guilty of same crime and thus subject to same range of penalties
Degrees of culpability are not always equal and are addressed through sentencing discretion
▪ Common Law
Historically common law distinguished between two degrees of culpability for “aiding and abetting”
➢ Before the fact: one who procures, counsels, or commands another in crime
➢ After the fact: one who receives, relieves, comforts, or assists one they know to have committed a felony
Modern statutes eliminate significance of “before” and “after” the fact
➢ Accessory after the fact remains subject to lesser punishment
➢ Accessory can be convicted even before principal is convicted
➢ Accessory can be simply charged with substantive crime committed by principal
Criminal Facilitation
➢ Some states make aid without a “true purpose” a crime with a lesser penalty than crime aided
▪ Model Penal Code - § 2.06(1) #mpc
Requires actor have “purpose of promoting or facilitating the commission of the crime
Mens Rea
▪ Mens rea for complicity complicated by two levels of mens rea
Mens rea of principal
Mens rea of accomplice – generally requires specific intent or true purpose for liability
▪ Seriousness of substantive offense and mens rea
Some courts have held “purpose” required to convict of lesser offenses, but “knowledge” suffices for conviction of major crimes (Judge Posner)
Hicks v. United States, US (1893)
▪ Facts: Defendant and another man ride up road on horses and encounter shooter. People witness conversation from afar, see shooter raise rifle at victim and hear defendant laugh. They see defendant remove his own hat and hear him say, “Take off your hat and die like a man.”
▪ Rule: Acts or words of encouragement and abetting must have been used by the accused with the intention of encouraging and abetting perpetrator
▪ Holding: Reversed and remanded; defendant contributed neither by action nor word to crime, and there was no substantial evidence of conspiracy or prior arrangement
State v. Gladstone, Wash. (1970)
▪ Facts: Undercover cop seeks to purchase marijuana from defendant, who says he doesn’t have enough to sell and then refers him to a dealer and draws him a map.
▪ Rule: Accomplice need not be physically present to be held guilty, but conviction depends on proof he did something in association or connection with principal (“nexus between accused and principal”)
▪ Holding: Reversed and remanded; no proof of aiding and abetting as defendant was charged with aiding and abetting “sale,” not purchase
▪ Dissent: Entertained conscious design and intent that his action would encourage perpetration of subsequent crime
▪ NOTE: Guilt could be imposed if defendant communicated directly with seller and was present during transaction
Substantive Crimes of Facilitation
▪ Juvenile gun possession
▪ Material support to terrorism
▪ Money laundering
Broadest and most widely used substantive crime of facilitation
Lowered mens rea of knowledge
Natural and Probable Consequences Test
▪ Alternative to MPC and majority view that requires specific intent on part of accomplice
▪ Analogous to Pinkerton doctrine developed in conspiracy law
▪ Arguments
Argument for: policy is that accomplices should be responsible for criminal harms they have naturally, probably, and foreseeably put in motion
Argument against: when a wholly different crime is committed, involving conduct not within conscious objectives of accomplice, they are not liable
People v. Luparello, Wash. (1970)
▪ Facts: Defendant looking for ex-girlfriend who deserted him to marry another. Tells his friends to get info on her whereabouts “at any cost” from good friend of her new lover. Friends visit victim armed with guns and swords, lure him outside and one of their group shoots and kills victim.
▪ Rule: Liability is extended to reach actual crime committed, rather than planned or “intended” crime
▪ Holding: Affirmed; sound basis to derive defendant’s criminal responsibility
▪ Dissent: Assesses degree of culpability for act not by mental state of defendant, but by that of the perpetrator and depends on fortuity of result
Roy v. United States, DC. Ct. App. (1995)
▪ Facts: Police informant attempts to buy handgun from defendant, who refers him to another person. Dealer takes informant to secluded location and then robs informant.
▪ Rule: “In ordinary course of things” refers to what may reasonably ensue from the planned events, not to what might conceivably happen, and suggests absence of intervening factors
▪ Holding: Reversed; evidence insufficient to support conviction on natural and probable consequences theory
Mens Rea for Results and Attendant Circumstances
▪ Results
Model Penal Code, common law, and most statutory formulations are uniform in being more demanding in cases of attempt than in cases of complicity
▪ Attendant Circumstances
Model Penal Code is less demanding in cases of attempt than in cases of complicity
▪ Model Penal Code
When causing a particular result is an element of an offense, accomplice in the conduct causing such result is liable if he acts with the level of culpability with respect to that result sufficient for commission of the offense – MPC § 2.06(4) #mpc
MPC is silent as to whether above requirement is applicable to attendant circumstances elements of the offense
State v. McVay, R.I. (1926)
▪ Facts: Defendant who runs steamship company ordered captain and engineer to run the steamship, either knew or should have known that there was a risk of the boiler exploding. Convicted of involuntary manslaughter.
▪ Rule: Liability can be imposed when actor intentionally or negligently creates conditions required for end result
▪ Holding: Affirmed; facts sufficient to find defendant recklessly and willfully encouraged captain and engineer to take a chance by negligent action and failure to act
Actus Reus
▪ Causation
Not necessary to establish a “but for” relation between defendant’s actions and criminal conduct of another
▪ Model Penal Code
Person acting with required mens rea is accomplice whether person aids or “attempts to aid” another in planning or committing offense – MPC § 2.06(3) #mpc
Solicitation is also basis for accomplice liability, even if actor fails to communicate with person he solicits to commit the crime – MPC §§ 2.06(3) and 5.02(2) #mpc
If principal actor attempts to commit crime, both may be charged with attempt
Person can be accomplice if they fail to fulfill legal duty to prevent an offense with the purpose of promoting or facilitating the crime – MPC § 2.06(3) #mpc
Wilcox v. Jeffrey, K.B.D. [1951]
▪ Facts: Editor of music magazine attended jazz concert when musician did not have proper permit to play. Charged with aiding and abetting musician with being “illegally employed” in England under a law that prevented musician from taking any employment while in UK, because he did not get up and protest in the name of English musicians, but actually applauded and wrote up glowing review.
▪ Rule: Any encouragement of an unlawful acct is enough, doesn’t have to be “but for”
▪ Holding: Affirmed; Evidence was sufficient to support conviction of aiding and abetting
State v. Tally, Ala. (1894)
▪ Facts: Judge told telegram operator not to deliver telegram warning victim that Skelton brothers were closing in on him. Victim subsequently killed.
▪ Rule: Assistance need not contribute to criminal result in “ but for” sense, but merely render it easier for principal to accomplish act
▪ Holding: Guilty
C. Conspiracy
▪ Doctrine of conspiracy imposes liability for a partnership in criminal purposes or agreeing with another to commit a criminal offense
Inchoate crime in that it is punishable whether or not agreed-upon offense ever occurs
Does not “merge” into completed offense (like attempt), but is a standalone offense in addition to any completed offense
Acts may be a criminal conspiracy when done as a group, even when same acts would not be criminal at all when done by individual or many acting severally
1. Prosecutorial Advantages
Overview: Consequences of a Conspiracy Charge
▪ Common Law
Impact of Conspiracy Charge
➢ Roughly a third of states and the MPC fix punishment for conspiracy at same level as that authorized for object crime
➢ Crime is considered to have been committed in any district where any one of the conspirators did any one of the acts attempted to further the objective (effectively removes Sixth Amendment protections from defendants)
➢ Traditional view permits separate punishments, with consecutive sentences, for object crime and conspiracy
➢ Federal Sentencing Guidelines effectively rejected separate punishments by grouping conspiracy and object offense together for purposes of its calculations
Duration of Conspiracy
➢ Basic rule is that conspiracy is a continuing offense and once formed, remains in effect until objectives are achieved or abandoned
➢ Statute of limitations begins running when conspiracy terminates (not when offense is committed)
Impossibility
➢ Conspiracy does not automatically terminate when achievement of objective becomes impossible due to frustration of specific objective by police where conspirators remain unaware of frustration and have neither abandoned nor withdrawn from the conspiracy (Jimenez Recio)
Abandonment
➢ Conspiracy is generally considered abandoned when none of the conspirators is engaging in any action to further the conspiratorial objectives
➢ If such inactivity continues for period equal to statute of limitations, prosecution is barred
➢ Courts traditionally require defendant take “affirmative action” to announce withdrawal to all other conspirators (federal courts and MPC view)
➢ Some courts further require that defendant also seek to thwart success of conspiracy (“ticking time bomb” theory)
Renunciation as a complete defense
➢ Most states and MPC allow a complete defense for renunciation under some circumstances
➢ MPC allows defense only if circumstances demonstrate renunciation and actor succeeds in preventing commission of criminal objectives
➢ Some states only require actor make substantial effort to prevent crime
▪ Model Penal Code – MPC § 5.03 #mpc
Defendant may not be convicted of more than one offense if “one offense consists only of conspiracy to commit the other”
▪ Arguments
Arguments for conspiracy
➢ Complements provisions on attempt and solicitation in reaching criminal conduct before it matures into submission of substantive offense
➢ Strikes against special danger of group activity, facilitating prosecution and imposing added penalties
➢ Conspiracy increases likelihood that criminal object will be successfully attained and decreases probability that individuals involved will depart from criminal path
Arguments against conspiracy
➢ Conspiracy should not be invoked where prosecution for substantive offense is inadequate and purpose served by adding conspiracy charge is primarily to get procedural advantages (Justice Jackson)
➢ Leads to big and cumbersome cases, where jury must sort testimony of hundreds of witnesses or consider evidence it heard perhaps a year earlier
Krulewitch v. United States, US (1949)
▪ Facts: Two defendants charged with conspiracy to violate and with completed violations of Mann act, which prohibits interstate transportation for purposes of prostitution.
▪ Rule: It is not inherent in every conspiracy that the conspiracy continues (in the form of an implicit agreement to conceal facts) long after act that was object of conspiracy is completed
▪ Rule: Conspiracy cannot be treated as including cover-up agreement unless there is direct evidence of an express original agreement to continue the act in concert to cover up traces of the crime (Grunewald)
▪ Holding: Court rejected theory of implied, on-going conspiracy
Conspiracy as a Form of Accessorial Liability
▪ Pinkerton Liability
Liability for any crime committed in furtherance of conspiracy, whether or not actor knew about the crime or aided in its commission
Majority rule and federal court policy
Not retroactive: defendant cannot be held liable for offenses committed prior to joining the conspiracy
▪ Evolution of Pinkerton liability
Pinkerton (1946): establishes initial theory
Alvarez (1985): imposes some limits with respect to “minor” participants
Bridges (1993): drops scope requirement
▪ Arguments
Arguments for Pinkerton liability
➢ Furthers information extraction and makes conspiracies more difficult to create and maintain by forcing them to adopt inefficient practices
➢ Address protection from prosecution of illegal enterprises
➢ Counters functional advantages by: (1) makes it possible to inflict punishment indirectly on members difficult to apprehend by punishing others, (2) serves as information-forcing tool, and (3) provides incentive for organizations to monitor and control excessively harmful activity
Arguments against Pinkerton liability
➢ Uses single abstract concept to decide numerous questions that deserve separate consideration in light of the various interests and policies they involve
➢ MPC rejects Pinkerton, suggesting it loses all sense of proportion and decides “as a matter of law” that which is better decided by juries “as a matter of fact”
Pinkerton v. United States, US (1946)
▪ Facts: Brothers indicted for liquor bootlegging conspiracy. One brother in prison for part of the time and is charged with substantive offenses committed by other brother, despite no evidence that he participated directly in the commission of these offenses.
▪ Rule: An overt act of one partner may be the act of all without any new agreement specifically directed to that act as long as: (1) act was in furtherance of the conspiracy, (2) act falls within scope of the conspiracy, (3) act was reasonably foreseeable as a necessary or natural consequence of the conspiracy, and (4) there is no evidence of affirmative action to withdraw from conspiracy
▪ Holding: Affirmed
▪ Dissent: Imposes vicarious criminal liability broader than that contemplated by vicarious civil liability theories
State v. Bridges, N.J. (1993)
▪ Facts: Argument at birthday party. Defendant came back with two friends with guns to hold back crowd while defendant fought with the other guy. Friends ended up shooting into the crowd, killing one person.
▪ Rule: Co-conspirator may be held liable for commission of substantive criminal acts that are not within the scope of the conspiracy if they are reasonably foreseeable as the necessary and natural consequences of the conspiracy
▪ Holding: Reversed; liability of a co-conspirator under objective standard of reasonability is broader than that of an accomplice
▪ Dissent: if Bridges did not intend that victim be killed, could not reasonably be convicted of attempted murder, accomplice to murder, or conspiracy to commit murder
United States v. Alvarez, 11th Cir. (1985)
▪ Facts: Drug bust goes awry and one federal agent dies and another is seriously wounded. Three defendants who played no part in the shooting were convicted of 2nd degree murder (one was the lookout, one was the manager of the motel who also acted as a translator, and one introduced the agents to the dealer and was present when the shootout began).
▪ Rule: Liability may be upheld where result is reasonably foreseeable consequence and (1) defendant was more than “minor” participant, and (2) had actual knowledge of at least some of the circumstances and events leading to the end result
▪ Holding: Convictions upheld
2. Actus Reus
▪ Actus reus of conspiracy offense is the agreement itself
▪ Conduct punishable under conspiracy much farther back in stages of preparation than attempt
▪ To establish common plan element of conspiracy
Proof must be circumstantial and therefore inferential to an extent by the very nature of the crime itself
Knowledge by defendant of all details an phases of conspiracy is not required
All participants need not know each other
▪ Required Agreement
Coleridge instruction: conspiracy is not merely a concurrence of wills, but a concurrence resulting from agreement; that agreement can be implied from acts in the absence of evidence that concurrence was accidental
Inference of agreement is permissible only when nature of acts would logically require coordination and planning
▪ Common Law
Traditionally, sole actus reus required was agreement itself
American conspiracy statutes have typically added requirement of an “overt act”
When a federal statute’s text is silent, no overt act requirement is read into the statute, based on canon of construction that absent contrary indications, Congress intends to adopt common law definition of statutory terms (Whitfield)
Overt act requirement designed to confirm “conspiracy is at work” and not merely a project still resting solely in the minds of the conspirators nor a fully completed operation no longer in existence”
▪ Model Penal Code
Model Penal Code also requires “overt act” to render conduct punishable as a conspiracy
➢ Act of agreeing with another to commit a crime is concrete and unambiguous, and does not present infinite degrees and variations possible in category of attempts
➢ Anomalous to hold conduct sufficient to establish criminality, if something else is done by someone else, is insufficient if crime is never consummated
➢ Act of combining with another is psychologically and practically significant, crossing a clear threshold of arousing expectations, increasing likelihood offense will be committed
Model Penal Code requires purpose for both conspiracy and accomplice liability
Interstate Circuit, Inc. v. United States , US (1939)
▪ Facts: Film distributors and theatres conspired to raise prices and limit double-features. No direct evidence that distributors had gotten together and agreed. Defendant sent out a letter to each distributor which made it clear others had also been contacted and it was in the interest of the individual distributor to comply.
▪ Rule: Unlawful conspiracy may be (and is often) formed without simultaneous action or agreement on the part of conspirators
▪ Rule: Conspiracy may exist without communication or express agreement, provided tacit agreement is reached without communication
▪ Holding: Affirmed; conspiracy and each contract between Interstate and distributors were violations of Sherman Act
People v. Lauria, Cal. Ct. App. (1967)
▪ Facts: Defendant operates telephone answering service and knew it was being used for prostitution.
▪ Rule: Element of knowledge of illegal use of goods or services and element of intent to further that use must be present in order to make supplier participant in criminal conspiracy
▪ Rule: Intent may be inferred from knowledge when: (1) supplier of legal goods for illegal use has acquired a stake in the venture, (2) where no legitimate use for the goods or services exists, or (3) from knowledge that volume of business is grossly disproportionate to any legitimate demand or when sales for illegal use amount to high proportion of seller’s total business
▪ Rule: Positive knowledge of supplier that goods or services are being used for criminal purposes is not sufficient to establish intent of supplier to participate in the misdemeanor
▪ Holding: Affirmed; insufficient evidence defendant intended to further criminal activities
3. Scope – Single or Multiple Conspiracies
To what extent is actor a conspirator with each of the persons involved in the larger criminal network to commit the crimes that are its objects?
▪ 2 key questions
Who’s included in conspiracy, once established conspiracy exists?
Is there a single conspiracy, or multiple individual conspiracies?
▪ Scope is important to address conflict between need for effective means of prosecuting large criminal organizations, and dangers of prejudice to individual defendants
▪ Model Penal Code
Limits scope (in terms of criminal objectives) to those crimes actor had purpose of promoting or facilitating, and (in terms of parties) to those with whom he agreed, except when same crime he agreed to commit is, to his knowledge, also object of a conspiracy between one of his co-conspirators and another actor
Conspiracy is a single one despite a multiplicity of criminal objectives, as long as such crimes are the object of the same agreement or continuous conspiratorial relationship
Example: MPC approach would produce different result in Bruno by characterizing conspiratorial objectives as particular crimes and testing culpability of each participant separately
➢ Permits finding that smugglers conspired to commit illegal sales of retailers, but retailers did not conspire to commit importing of the smugglers
➢ Permits finding that some of the parties in a chain conspired to commit the entire series of crimes, while others conspired to commit only some of those crimes
Hub and Spoke Model
Kotteakos v. United States, US. (1946)
▪ Facts: Conspiracy to defraud Fed Housing Administration for loans. Brown was the “common center,” and at least eight separate and independent groups dealt independently with him (the “spokes”). There was no proof of connection between the persons comprising the “spokes.”
▪ Rule: The acts and statements of co-conspirators cannot be imputed to others to establish an overt act connecting all without reference to whether they actually related to another (general conspiracy requires a “rim” to connect the “spokes”)
▪ Holding: Reversed
Anderson v. Superior Court, Cal. Ct. App. (1947)
▪ Facts: Defendant referred women to abortion doctor and was paid a fee for referrals. Indicted for conspiring to commit abortions and the substantive offense of committing an abortion, for both those women who she referred and those that others were referred.
▪ Rule: One who joins conspiracy is responsible for substantive offenses committed as a part of the conspiracy, where “rim” is established to connect “spokes”
▪ Holding: Indictment upheld as rim was established by knowledge doctor also required other referrals similar to those of defendant to remain in business
Chain Model
United States v. Bruno, 2nd Cir. (1939)
▪ Facts: Chain of drug importers, middlemen, and retailers. Object was to smuggle drugs into New York and then distribute to unconnected retailers in New York and in Texas/Louisiana. Convicted of one general conspiracy to import, sell and possess narcotics. No cooperation of communication between smugglers and retailers or between two groups of retailers.
▪ Rule: Single conspiracy can be established where person embark on criminal enterprise where success of each part is dependent on success of whole (“chain” conspiracy)
▪ Holding: Affirmed
Difficulties of Applying “Hub and Spoke” and “Chain” Models
United States v. Borelli, 2nd Cir. (1939)
▪ Facts: Elaborate heroin importing and distribution operation.
▪ Rule: Essential to determine what kind of agreement or understanding existed as to each defendant; links of a chain conspiracy may have elements of spoke conspiracy
▪ Holding: Sale or a purchase scarcely constitutes sufficient basis for inferring agreement to cooperate with opposite parties for whatever period they continue to deal in contraband, absent understanding evidenced by other conduct
United States v. McDermott, 2nd Cir. (2001)
▪ Facts: Defendant made stock recommendations to his lover. Unbeknownst to him, she was also having an affair with another man and passing on the tips, which they then used to earn trading profits. Convicted of conspiracy to commit insider trading.
▪ Rule: Liability can be imposed under “transitive property of conspiracy” if: (1) scope of agreement is broader to encompass possibility of application, (2) result was necessary or natural consequence of original agreement, or (3) if defendant at least knows of subsequent relationship
▪ Holding: Reversed; no evidence that defendant agreed to pass insider info to the third person
VII. Discretion in the Application of Substantive Criminal Law
▪ Discretion exists when institutions charged with implementing criminal law doctrine are endowed with legitimate authority to ignore established rules and decide questions of liability and punishment on particular grounds or no grounds at all
Jury nullification
Newly legislated crimes permit filing a multiplicity of serious charges
Increasingly severe authorized sentences
Mandatory minimum sentences
▪ Common intuition is that formal adjudications of guilt at trial require stronger moral justification than charge dismissals, plea bargaining, and jury nullification
Arguments for intuition
➢ Decision impose pains and penalties require better reasons and more oversight than decisions to withhold sanctions
Arguments against intuition
➢ Power to be lenient is power to discriminate
➢ In light of recent sentencing developments, no longer true that charging and bargaining discretion is simply discretion to withhold deserved punishment
A. Charging
▪ Charging Discretion
Rules of professional responsibility permit filing of criminal charges only where “probable cause” is established
Legitimate for prosecutor to decline to file charges due to limitations in available enforcement resources and need to individualize justice
▪ Standards
ABA recommends prosecutors consider following factors when exercising charging discretion: (1) strength of evidence, (2) harm caused, (3) possible disproportion between authorized punishment and gravity of crime, (4) defendant’s willingness to cooperate in prosecution, and (5) likelihood of prosecution in another jurisdiction
State penalties are generally much lower than federal penalties, so decision to refer a case for state prosecution can be as significant as decision to prosecute or not
▪ Checking decision not to prosecute
US Attorney General retains discretion to appoint special prosecutor outside ordinary Justice Department chain of command to handle politically sensitive cases; state governor or attorney general often has similar power
Separation of powers prevents judges from compelling unwilling prosecutor to file charges or private prosecution
Victims entitled to be kept informed about course of investigation and to discuss case with prosecutor
Linda R.S. v. Richard D., US (1973)
▪ Facts: Texas “deadbeat dad” law says deadbeat parents can be held criminally liable for refusing to pay for child’s support. Prosecutor’s office says only applicable to parents of legitimate children because of how courts have consistently construed it, although actual statute did not distinguish between legitimate and illegitimate kids and only says “any parent.” Argues 14th Amend violation and seeks injunction against prosecutor to so him from declining to prosecute on basis of illegitimacy.
▪ Rule: Plaintiff must allege personal stake in outcome of controversy to establish direct relationship between alleged injury and claim sought to be adjudicated required for standing
▪ Rule: Citizen lacks standing to protest policies of prosecuting authority when they themselves are neither prosecuted nor threatened with prosecution
▪ Holding (Marshall): Affirmed; appellant failed to allege sufficient nexus between her injury and government action
▪ Dissent (White): Recognizable interest in attacking allegedly discriminatory statute should not be limited to only actual or potential criminal defendant; civilization assumes that threat of penal sanctions has something more than “speculative” effect on person’s conduct
Inmates of Attica Correctional Facility v. Rockefeller, 2nd Cir. (1973)
▪ Facts: Inmates and mother of killed inmate want to force criminal prosecution of guards, Governor and prison after inmate uprising. Claims intentional murder without provocation, assault and denial of medical care after the revolt was over. Deputy state AG declines to investigate.
▪ Rule: Federal courts have uniformly refrained from overturning, at insistence of private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made; based on separation of powers doctrine
▪ Holding: Affirmed
United States v. Armstrong, US (1996)
▪ Facts: Defendants indicted on conspiracy with intent to distribute crack and gun charges. Motion for discovery or dismissal of indictment saying they were singled out for federal prosecution because they were African-American. Filed motion for discovery to get information on decisions on whether or not to prosecute in order to build case of discrimination (selective prosecution). Government relied in part on DEA report concluding that networks dominated by Jamaican, Haitian, and Black street gangs dominated crack distribution. Defendants responded with affidavit of intake coordinator asserting there were an equal number of Caucasian users and dealers , an affidavit from a criminal defense attorney alleging many non-blacks are prosecuted in state court for similar offenses, and a newspaper article reporting on disparity in federal prosecution of crack vs. powder cocaine.
▪ Rule: Selective prosecution claim require claimant demonstrate prosecutorial policy had a discriminatory effect and was motivated by a discriminatory purpose (showing similarly situated individuals of a different race were not prosecuted)
▪ Holding (Rehnquist): Reversed
▪ Dissent (Stevens): Defendants do not need to prepare sophisticated statistical studies in order to receive mere discovery in cases like this one
B. Plea Bargaining
▪ Plea bargaining converts substantive criminal law into a “menu”
▪ Nature of plea bargain commitments
Prosecutors may promise to dismiss certain charges or to “recommend” a certain sentence to judge
Prosecutors are not permitted to guarantee judge will accept recommendation due to infringement on sentencing authority of judge
Trial penalty has ballooned in magnitude and is now substantial – sentences after jury trial are now on average three times longer than sentences imposed in comparable cases after a plea
▪ ABA Recommendations
Proper for court to grant sentencing concessions in plea bargain where: (1) defendant is genuinely contrite, (2) concessions enable alternative correctional measures better adapted to achieving purposes of correctional treatment, (3) defendant demonstrates genuine remorse or consideration for victims, or (4) defendant has given or agreed to give cooperation which may result in successful prosecution of other offenders
▪ Arguments
Arguments for plea bargaining
➢ If every charge required full trial, would require multiplication of limited judicial resources
➢ Defendant is free to trade right to force trial for prosecutor’s right to seek maximum sentence
➢ “Conflict-of-interest” issue is trivial because lawyers or prosecutors may cut corners at trial as well
Arguments against plea bargaining
➢ Defendants can choose to waive right to jury and accept bench trial in exchange for sentencing concessions
➢ Parties to plea bargain are represented by agents (defense attorney and prosecutor) whose interests may be at odds with those of parties they represent
Brady v. United States, US (1970)
▪ Facts: Defendant pled guilty to lesser kidnapping charge after learning that more serious charge of causing harm during the kidnapping carried max punishment of death penalty and that his codefendant had pled guilty and could testify against him. His plea was accepted after judge confirmed it was voluntary and he was sentenced to 50 years imprisonment, later reduced to 30. Defendant argued that his plea was involuntary because he was coerced by threat of death penalty.
▪ Rule: Voluntary guilty pleas must be entered by one fully aware of the consequences, including the actual value of any commitments made to him by the court, prosecutor, or his council.
▪ Rule: Voluntary guilty plea must stand unless coerced by threats, misrepresentation, or promises by their nature improper (e.g. bribes)
▪ Holding: Affirmed; declines to hold that guilty plea is compelled and invalid under Fifth Amendment when motivated by desire to accept certainty or probability of lesser penalty rather than face wider range of possibilities
Bordenkircher v. Hayes, US (1978)
▪ Facts: Defendant wrote a bad check for $88 (punishable for 2-10 years). Plea offer was for 5 years and prosecutor re-indicted defendant for more serious offense when he refused to plead guilty to the original lesser charges. Due to”3-strikes” law, convicted for life. Prosecutor says reason he’s getting harsher charge is because defendant refused to plead guilty.
▪ Rule: Due Process Clause of Fourteenth Amendment requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in sentence he receives after a new trial
▪ Rule: In give-and-take of plea bargaining, there is no such element of punishment or retaliation so long as accused is free to accept or reject the prosecution’s offer
▪ Holding (Stewart): Reversed; conduct of prosecutor merely presented defendant with unpleasant alternatives and did not violate Due Process Clause of Fourteenth Amendment
▪ Dissent (Blackmun): Vindictive as sole reason for new indictment was to discourage respondent from exercising right to trial
▪ Dissent (Powell): Implementation of strategy calculated solely to deter exercise of constitutional rights is not a constitutionally permissible exercise of discretion
C. Sentencing
1. Discretionary Sentencing and its Alternatives
▪ Evolution of Criminal Justice System and Sentencing
Historical broad discretion of judiciary in sentencing stems from rehabilitative role of criminal justice system (“doctor diagnosis” analogy)
Model Penal Code sought to standardize criminal law, but maintained support of indiscriminate sentencing and broad grant of discretion to judiciary
Criminal justice system is now viewed under retributive paradigm; resulting in increasing convergence between role of judges and juries
▪ Sentencing Procedure
Sentencing hearings must comport with many due process requirements (e.g. effective assistance of counsel)
▪ Arguments
Against broad sentencing discretion
➢ Haphazard sentencing does little to increase deterrent impact since potential criminal is likely to calculate potential sentence by reference to what most similarly situated offenders receive
Williams v. New York, US (1949)
▪ Facts: Defendant guilty of 1st degree murder for killing in middle of burglary. Jury recommended life sentence, but judge imposed death sentence. Justified death penalty on the basis of evidence not presented to the jury. Defendant argued that this violated his due process rights under Fourth Amendment as he was not afforded opportunity for cross-examination or rebuttal of evidence.
▪ Rule: Sentencing judge may consider information obtained outside the courtroom from persons whom a defendant has not been permitted to confront or cross-examine
▪ Holding (Black): Affirmed; appellant not denied due process of law
▪ Dissent (Murphy): Due process requires idea person be accorded a fair hearing through all stages of proceedings
▪ NOTE: Williams has been effectively overruled in capital punishment cases
Sentencing Reform
▪ Some reform efforts focused on fact that traditional systems led to indeterminate sentencing
▪ More commonly reform proposals treated judicial discretion itself as the principal evil; coincided in part with rise in crime and anti-judge movement
▪ Approaches to reform addressing judicial discretion include:
Mandatory minimum sentences
➢ Arguments against: discriminatory, add to prison population without adding to social protection
Sentencing guidelines
▪ Federal Sentencing Guidelines
Sentencing Reform Act of 1984 prompted by calls for “truth in sentencing”
Consists of an offense level and a criminal history category grid prescribing sentencing ranges
Allows for adjustments or downward departures based on factors including: (1) family circumstances, (2) age, and (3) background
No longer mandatory, but merely “advisory” after Booker with appellate review only for “reasonableness”
▪ Arguments
Arguments for sentencing guidelines
➢ Guidelines have succeeded in reducing judge-to-judge disparity within judicial districts
Arguments against sentencing guidelines
➢ Significant disparities between sentences imposed on similarly situated defendants in different districts and different regions of the country
➢ Visible punishment levels generate strong pressure in political process to push levels upward
United States v. Thompson, D.Mass. (2002)
▪ Facts: Defendant plead guilty to distribution of crack. Sentenced to 60 months (downward departure from guideline sentence by 17 months) due to extraordinary family circumstances. First Circuit vacated and remanded
▪ Rule: Departures on basis of family circumstances must be evaluated as compared to all defendants, and not merely similarly situated with respect to the offense
▪ Rule: Departure on grounds of defendant’s family circumstances essentially requires that they be “irreplaceable or otherwise extraordinary”
▪ Holding: Departs downward and sentences to 60 months
2. The Jury’s Role
Blakely v. Washington, US (2004)
▪ Facts: Defendant charged with 1st degree kidnapping, reduced to 2nd degree through plea agreement. Prosecution recommended sentence within standard range, but judge imposed an exceptional sentence 37 months above standard maximum, finding that defendant acted with “deliberate cruelty” (statutorily enumerated ground for departure). Petitioner objected and judge upheld sentence in 3-day bench hearing. Petitioner appealed, arguing a constitutional right to have a jury determine all facts legally essential to his sentence.
▪ Rule: Other than fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt
▪ Holding: Reversed; State’s sentencing procedure did not comply with Sixth Amendment
▪ Dissent (O’Connor): Facts historically considered by sentencing judges must now be charged in indictment and submitted to jury and may require a separate and expensive jury trial during penalty phase
▪ Dissent (Kennedy): Constitution does not prohibit dialogue between judicial and legislative branches on sentencing reform
▪ Dissent (Breyer): Court’s ruling results in no solution that doesn’t result in (1) shift of power to prosecutor, (2) lack of uniformity, or (3) complexity, expense, and increased reliance on plea bargains
3. Proportionality as a Constitutional Constraint
▪ Supreme Court has enforced proportionality requirement not only for death penalty, but also for forfeitures and punitive damages as expressly prohibited by Eighth Amendment
Ewing v. California, US (2003)
▪ Facts: Life sentence imposed on defendant for stealing 3 golf clubs under CA “3 strikes” law. California trial courts retain discretion to avoid imposing “3 strikes” sentence by reducing previous felony “wobblers” to misdemeanors or vacating prior felony convictions. Trial court declined to reduce previous felony conviction to misdemeanor.
▪ Rule: Eighth Amendment forbids cruel and unusual punishments and contains narrow proportionality principle that applies to noncapital sentences and is evaluated by 3 factors: (1) gravity of offense and harshness of penalty, (2) sentences imposed on other criminal in same jurisdiction, and (3) sentences imposed for commission of same crime in other jurisdictions (Solem)
▪ Rule: Five principles of proportionality review: (1) primacy of legislature, (2) variety of legitimate penological schemes, (3) nature of our federal system, (4) requirement that proportionality review be guided by objective factors, and (5) Eighth Amendment only for bids “grossly disproportionate” sentences
▪ Holding (O’Connor): Affirmed; sentence reflects rational legislative judgment entitled to deference
▪ Concurrence (Scalia): Proportionality is inherently tied to retribution and is difficult to conceptualize in a deterrence or rehabilitation paradigm; No unstated proposition in Eighth Amendment that all punishment must pursue multiple purposes of criminal law
▪ Concurrence (Thomas): Eighth Amendment has no proportionality principle
▪ Dissent (Stevens): Proportionality review required by Eighth Amendment
▪ Dissent (Breyer): Comparative analysis of proportionality based on: (1) length of term, (2) sentence-triggering criminal conduct, and (3) offender’s criminal history
4. Just Sentencing Outcomes: Purposes of Punishment, Revisited
▪ Principles of Sentencing from Milken
Purposes of sentencing: (1) individual deterrence, (2) general deterrence, (3) punishment, (4) retribution, and (5) rehabilitation
Sentences must be appropriate
➢ Crimes that use others to effect unlawful schemes are more worthy of punishment
➢ Crimes that are hard to detect warrant greater punishment to effectively deter others
Court is required to select a fair sentence for the crimes that occurred, and then consider whether a defendant’s cooperation warrants lightening the sentence
United States v. Jackson, 7th Cir. (1987)
▪ Facts: Defendant previously convicted of multiple bank robberies robbed bank 30 minutes after being released from prison and was back in prison before the sun set. Criminal statute called for imprisonment of not less than 15 years without probation, but he was sentenced to life in prison w/o possibility of parole.
▪ Rule: Court entitled to consider general deterrence and incapacitation where specific deterrence has clearly failed
▪ Holding (Easterbrook): Affirmed; imposition of life was permissible
▪ Concurrence (Posner): Sentence too harsh as it is unlikely defendant would return to bank robbery if released 25-30 years; civilized society locks people up until age make them harmless, but does not keep them until they die
United States v. Gementera, 9th Cir. (2004)
▪ Facts: Defendant plead guilty to mail theft. Sentenced to 2 months + 100 months of community service, including “creative sentencing” (standing in front of post office with sign “I stole mail. This is my punishment”; delivering lectures at a local school; write letters of apology; observe postal patrons visiting “lost or missing mail” window).
▪ Rule: Sentencing Reform Act affords district courts broad discretion in fashioning appropriate conditions of supervised release, while mandating such conditions serve legitimate objectives
▪ Holding: Sentencing upheld as appropriate to objective of rehabilitation
▪ Dissent: Public humiliation or shaming has no proper place in our justice system
-----------------------
Rejected by Lyons
Blake/MPC
M’Naghten
Decreasing intent
+
Increasing
provocation
Decreasing criminality
X
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