Criminal Law Fall 2011 Maximo Langer REMEMBER all that matters is the dancing baby MPC Very

y influential- adopted to some extent in over 30 states NY follows the MPC most closely I. What is Punishment? Criminal law can be used to impose a minimum morality upon society Regina v. Dudley and Stephens- two castaways kill a young boy on their boat and eat him, would be appropriate according to the law of the sea, found guilty of murder but sentence reduced. Indicative of social norms rationale for punishment- court wished to express moral disapproval for this generally accepted culture of the sea, also retributive justice Denied necessity as a justification for homicide Why punish? Retribution Theory Backwards-looking Justice GOAL Offender TARGET CONCEPTION We are moral agents, w/ capacity to distinguish right from wrong, and capacity for free choice Desert (criminal deserves the punishment) RATIONALE GOOD THINGS *Respectful of offenders- not a means to an end *Clear demarcation of right/wrong *Alternative to revenge *More efficient (no extra information needed) *Proportionality- punishment must fit the crime Deterrence Forward-looking GOAL TARGET CONCEPTION RATIONALE GOOD THINGS CRITICISMS

Crime prevention Society (general deterrence); Offender (specific deterrence) People are rational actors that try to maximize utilitynot necessarily moral Incentives (predicted displeasure outweighs pleasure) *If it works, deters crime *May not work *People dont have adequate information for cost/benefit analysis *People are not always rationale *Instrumental instead of proportional- for deterrence to work, punishment must outweigh the crime a little *Those who are caught pay the price for all *In theory, could punish an innocent person to achieve

the desired result Rehabilitation Forward-looking GOAL TARGET CONCEPTION RATIONALE GOOD THINGS

CRITICISMS Incapacitation Forward-looking GOAL TARGET CONCEPTION RATIONALE CRITICISMS

Improve the offender for the sake of crime prevention Offender (as the subject of improvement) Humans are redeemable, the offender is a victim in some way Treatment, removal of negative circumstances *Allows complexity of humans (more than rational) *Cheaper- allows for diversion from legal process *Beneficial for society (productive members) *Acknowledges possibility of redemption *Does it work? *Paternalistic

Crime prevention Offender People are dangerous & irredeemable, or not dangerous Neutralization *Expensive *Doesnt matter if act is committed (in theory)

Social Norms/Social Consciousness Forward-looking, instrumentalist Crime Prevention, Reaffirm Societal Values GOAL Law-abiding citizens TARGET CONCEPTION Social beings Stigmatization/social pressure RATIONALE GOOD THINGS *Acknowledges that humans look to those around them for behavioral standards II. Basic Requirements for Criminal Liability A. Actus Reus Criminal liability requires actus reus- a commission of a voluntary act that is prohibited by law. 1. Voluntary Acts To constitute a crime, the commission of an offense must include a voluntary act or omission. ACTS REQUIRED (not just thoughts) because: Proof problem Everyone has blameworthy thoughts Thoughts are involuntary Harm principle- no harm no punishment HYPO #1: Moe pushes Larry who pushes Curlie. Is Larry guilty of pushing Curlie? No- involuntary.

HYPO #2: Moe puts a gun to Larrys head and tells him to push Curlie, he does. Voluntary- perhaps duress excuse. Larry had an option to push or not push- he made a voluntary choice. MPC 2.01 Requirement of Voluntary Act 1. A person is not guilty of an offense unless conduct includes a voluntary act or omission of an act of which he is physically capable. 2. The following acts are not voluntary: a. Reflex/convulsion b. Bodily movement during sleep/unconsciousness c. Conduct during hypnosis or hypnotic suggestion d. Bodily movement that is not the product of the effort/determination of the actor Common law- All elements of a criminal act must be committed voluntarily for the to be held criminally liable. Martin v. State (AL 1944)- charged with being drunk/acting boisterously in a public place, was brought there by the police against his will. HOLDING: Appearance was involuntary, no necessary actus reus. Court implies the voluntary requirement to every element of the offense Maybe different result if he had gotten drunk in the cop car en route to the public place o Seems to address mens rea- though crime includes several voluntary acts, did not intend to commit them in public (which is why the conduct is criminalized) Under MPC, could be guilty (offense must include a voluntary act- voluntarily drunk). Sufficient but not necessary condition- could be convicted with a voluntary act. Unconsciousness is a valid defense to a homicide charge. Voluntary acts refers to control of bodily movements. People v. Newton (CA 1970)- claims shot police officer after being shot in the stomach, lost control of his actions during that time, reaction believable based on wound. Court allowed defense. MPC 2.01(2) an unconscious act is not voluntary A person is liable for a voluntary act that could foreseeably lead to a crime, even if some involuntary act is involved as well. People v. Decina (1956)- suffered a seizure while driving, crashed into someone and caused death. argued there was no actus reus bc no control of movements during seizure Court found sufficient actus reus in the act of driving, foreseeable that seizure would occur Time-framing broader time frame includes voluntary act of choosing to drive 2. Omissions Subject to a few exceptions, a person has no criminal law duty to act to prevent harm to another, even if the person may lose her life in the absence of assistance. Failure to act may constitute breach of duty when (see Jones): A. A statute imposes a duty of care for another B. A certain relationship exists between the parties C. A contractual duty of care has been assumed D. A party voluntary assumes care of another, preventing another from providing care E. A party creates the peril RELATIONSHIPS: Parent minor child, spouse spouse o Commonwealth v. Cardwell- mother guilty of protecting daughter from stepfather

Step-parent relationship sufficient People v. Carroll- duty of stepmother to stepchild (father killed his child) But State v. Miranda- live-in boyfriend has no duty to girlfriends children o De facto family relationship not sufficient People v. Beardsley- married man has no duty to his mistress (took poison in his presence, failed to assist) MPC 2.01(3) crime of omission only applicable when a. Expressly indicated by statute b. Duty to act is imposed by law Bystander Indifference: Generally not punishable because Appropriate course of action is not always clear Pluralistic ignorance- not clear where responsibility lies Risk of retaliation from assailant Risk of being mistaken for the assailant Over-criminalization of non-conduct (burden on the courts) Societys value of personal autonomy/freedom Exceptions: Six states have Good Samaritan statutes imposing a duty to rescue (generally misdemeanors, low penalties) Duties Triggered by Special Circumstances Duty if you created the other persons peril o E.g. if you bump someone into the water, responsibility to save them from drowning o must have a legal duty to the injured party for an act of omission to constitute a crime. Jones v. US (DC 1962)- convicted of involuntary manslaughter for neglect of baby- remanded for new trial. Unclear if the babys mother was also living at the residence- assumed contractual duty, assumption of care that prevented others from providing care. Must be found beyond a reasonable doubt that under legal duty to care for infant Moral obligation is not enough to create legal duty. Misprision of a felony is not a crime. Pope v. State (MD 1979)- convicted of child abuse/misprision of a felony (failure to report). hosted mother and child in her home, mother beat baby to death and failed to intervene or report it. Good Samaritan act of taking in mother and child should not be punished- conviction reversed Mother may have been mentally ill, but not in position to evaluate parents capacity Misprision of a felony is too heavy of a burden on peoples freedom B. Mens Rea Criminal liability requires proof of mens rea- a guilty mind BROAD CONCEPTION: wickedness, a guilty mind MODERN CONCEPTION (MPC 2.02(2)): narrow, specific mens rea state required by offense must be present for each material element of an offense. Purposefully o Conscious object is to perform an act of that nature/cause the result Knowingly o Knows the act will cause the result Recklessly o Aware of the risk o Risk must be substantial and unjustifiable Negligently

o Unaware of the risk but ought to be aware of the risk o Reasonable person standard o Risk must be substantial and unjustifiable Test for Determining Mens Rea: 1. Determine the material elements of an offense a. Conduct- the act itself b. Attendant Circumstances- necessary condition i. The girl is under 16, the building is a dwelling, etc. c. Result i. Death, injury, etc. 2. Determine what type of mens rea is determined for each material element MPC 2.02(3): If the statute is SILENT as to the mens rea requirement, purpose, knowledge, or recklessness is required MPC 2.02(4): if it is UNCLEAR which material element the mens rea requirement is describing, assume it describes all material elements unless explicitly specified otherwise 1. Malice Maliciouslydoes not mean general wickedness, but some specific foresight of consequence (intent or recklessness) Regina v. Cunningham (UK 1957)- stole a part off a gas meter, endangering the life of this mother-inlaw sleeping in the apartment above. Conviction reversed because found on general wickedness instruction instead of actual mens rea determination. Jury would have to find acted with at least recklessness regarding the result of the crime No proof that was aware of the possible result (mens is then at most negligence) ELEMENTS: o Administering (conduct) o A noxious thing (attendant circumstances) o Resulting in harm/life endangerment (result) MENS REA REQUIRED: maliciously are not liable for consequences of their criminal actions that were not probable or foreseeable Regina v. Faulkner- sailor sneaks into bottom of ship to steal rum, lights a match, accidentally burns the ship down. Conviction reversed because statute required the act to be intentional and willful, and was convicted under broad mens rea theory (guilty because accident occurred while committing a felony) 2. Negligence Negligent conduct constitutes a deviation from the standard of care that a reasonable person would have observed in the actors situation. Criminal negligence generally must be a gross deviation from the standard of reasonable care- involving a substantial and unjustifiable risk of causing social harm. MPC 2.02(2)(d): negligence must constitute a gross deviation from the standard of care that a reasonable person would observe in the actors situation (Santillanes) Common law (old rule): criminal negligence requires only a deviation from the reasonable person standard, like in civil negligence (Hazelwood) Policy: Criminal negligence is punished because of deterrence, retribution Justifications generally rest on retribution (hard to deter behavior the actor is not aware of) Common law - ordinary negligence is sufficient

State v. Hazelwood (AK 1997)- Exxon-Valdez captain appeals conviction for spilling oil on the basis that an ordinary negligence standard is not sufficient for criminal liability. Statute does not specify, but ordinary negligence is sufficient (civil standard) MPC standard- gross negligence required for criminal liability Santillanes v. New Mexico (NM 1993)- accidentally cut nephew in the neck with a knife, convicted of child abuse. Statute specified negligence and jury was instructed on ordinary negligence. Reversed. Because of grave consequences of criminal conviction, gross negligence is necessary Parallel to civil law- gross negligence reqd for recovery of punitive damages III. Homicide A. Intentional Killings Common law Murder o 1st Degree Murder (willful, deliberate, premeditated) DEATH Felony murder (arson, rape, robbery, burglary) o 2nd Degree Murder (intentional but not planned) 10 yrs- Life o depraved heart murder o Mens rea: Intent to kill ( premeditation) Intention to inflict serious bodily injury (some jurisdictions) Extreme recklessness Felony murder (non-statutorily indicated crimes) o Gives jury more power (can decide the limits of sentencing) Manslaughter (PA model) o Voluntary (partial excuse) Heat of passion Adequate provocation No cooling time o Involuntary- risk-taking that is below super-recklessness standard Requires reckless or gross negligence mens rea MPC 210.2- Murder Only one category of murder Mens rea required: o Purpose o Knowledge o Recklessness with extreme indifference to the value of human life Assumed in the commission of certain felonies (rebuttable presumption) MPC 210.6- leaves discretion to the court to apply mitigating factors in sentencing More favorable for prosecutors- lower burden to reach a conviction MPC 210.3- Manslaughter Homicide that would be murder (bc of requisite purpose), but that is committed o Recklessly, in conscious disregard of substantial and unjustified risk, or o by acting under extreme emotional disturbance for which there is reasonable explanation or excuse MPC 210.4- Negligent Homicide Must prove s gross negligence Subjective standard for manslaughter, objective standard for negligent homicide

1. Premeditation and Deliberation PROBLEM: Premeditation does not always identify the worst crimes, so 1st/2nd degree distinction may not serve its purpose of distinguishing between worst/less worse crimes Anderson- young girl brutally murdered and sexually abused, not 1st degree murder bc not premeditated. Premeditation cannot be restricted to a certain time period (PA) Commonwealth v. Carroll (PA 1963)- appeals conviction of 1st degree murder of his wife, shot her in the back of the head while she was sleeping. Contends should be convicted of 2nd degree murder bc not premeditated- court upholds 1st degree murder conviction. Willful- definitely (shot her in the head) Deliberate- yes (weighed pros/cons, she abused their kids) Premeditated? o Claims he didnt think about it until he grabbed the gun o Court found this was sufficient amount of time for premeditation o PROBLEM if seconds are sufficient, blurs lines between first/second degree There is a difference between willful, deliberate, premeditated (1st degree murder) and intent to killthere must be time between the inception of intent and the murder to constitute premeditation State v. Guthrie (WV 1995)- appeals conviction of 1st degree murder for stabbing co-worker in the neck after provocation- conviction overturned, remanded. 1st degree murder must require more than intent to kill because otherwise there is no distinction between 1st/2nd degree murders (all murders are intentional) There must be some prior design for a 1st degree murder conviction- greater length of time required than the Carroll standard 2. Provocation Distinguishing factor between murder and manslaughter. Originally developed to mitigate capital punishment (when all unjustifiable homicides were so punished) Common law/majority Circumstances when provocation defense generally allowed Limited list: extreme assault/battery, unlawful arrest, injury or serious abuse of relative, sudden discovery of spouses adultery. Words are never sufficient provocation. No cooling-off period allowed between provocation and homicidal response Modern provocation theory Need not fit into common-law categories, anything can be provocation that would (and did) reasonably produce heat of passion Jury determines adequacy of provocation, if length of cooling time appropriate MPC 210.3(1)(b) must act under the influence of extreme mental/emotional disturbance for which there is reasonable explanation/excuse (excuse as to EED, not as to the homicide) Reasonableness of explanation/excuse determined from the viewpoint of a reasonable person in the s situation under the circumstances as believes them to be cooling time requirement (acknowledges possibility of cumulative effect of provocation) Leaves ambiguity to allow relevant factors (i.e., blindness or extreme grief) but does not allow factors that would be contrary to the laws normative person (racist, misogynist, etc.) Gives more power to the jury (prosecutors prefer limited list if the circumstance not present)

Allows for more relaxed treatment of men who commit violent crimes against women (jury brings implicit misogynistic biases to the jury box)

Two theories behind provocation defense: Partial justification- the victim did something wrong, making the wrongness of less wrong o Problematic because provocation involves muddled moral situations (adultery) o Even if victim were guilty, not guilty of a deadly act (otherwise, self-defense) o Sends a message that some lives are worth less Partial excuse- less responsible for actions when in a heat of passion o Does this excuse reactionary behavior? o Feminist criticism- common when men kills their wives o Could be used to excuse the death of anyone (innocent bystander) if -focused Mere words are generally not viewed as adequate provocation- reasonable person standard applies (majority view- limited list) Girouard v. State (MD 1991)- wife verbally provokes husband, he stabs her 19 times. claims he was entitled to voluntary manslaughter instruction because of adequate provocation. Court found that a reasonable person would not be provoked by words alone to stab someone 19 times. Some courts have allowed words that reveal a provocation circumstance as provocation Sticks to the limited list partial justification (evaluates victims blameworthiness) o More power to judges (in the list, or not) A jury should evaluate whether a circumstance justifies adequate provocation using a reasonable person standard, regardless of common-law categories (minority view- words could be sufficient) Maher v. People (MI 1862)- shoots man allegedly having an affair with his wife. Evidence regarding the alleged affair should have been presented to the jury for an evaluation of provocation. Reasonable person standard partial excuse (allows multiple situations) o More power to juries (how would a reasonable person react) Dissent: not admissible, adequate provocation must occur in the sight of the , cant be overheard. Reasonableness of explanation/excuse determined from the viewpoint of a reasonable person in the s situation under the circumstances as believes them to be (MPC standard) People v. Cassassa- murdered woman who he felt had romantically spurned him, claims extreme emotional disturbance as mitigating factor justifying reduction to manslaughter. Not a good case under common law- too much cooling time, inadequate provocation MPC extreme emotional disturbance? Even keeping in mind the circumstances as the believed them to be, s strong reaction was not reasonable in those circumstances B. Unintended Killings 1. Criminal Negligence Common law involuntary manslaughter Mens rea of recklessness or (gross) negligence MPC 210.3 Manslaughter o Mens rea of recklessness gross deviation from the standard of care + awareness Negligent homicide

Mens rea of gross negligence substantial/unjustifiable risk + no awareness MPC recklessness definition: Substantial/unjustifiable risk Conscious disregard of the risk o Wanton/reckless conduct can be found in an affirmative act, or in an omission if requisite duty is present, and if the act/omission is likely to result in substantial harm Commonwealth v. Welanksy (MA 1944)- fire at nightclub, manager not present and did not light the match that started the fire, but set up the inadequate fire safety. Convicted of involuntary manslaughter. Conviction based on wanton and reckless conduct Actually a low probability that the fire would start (9 years with no fire), but high probability that the harm would be serious if a fire did start Objective standard- would a reasonable person in s situation have known his acts were risky? People v. Hall (CO 2000)- ski resort employee/trained racer collides with another skier and kills him, charged with felony reckless manslaughter (MPC). Because a jury could find that s behavior involved conscious disregard of a substantial and unjustifiable risk, indictment stood. At pre-trial hearing, dismissed because not 51% percent likely his conduct would result in death MPC does not support strict numerical requirement (only substantial) On remand, convicted of negligent homicide only (unaware of risk of death) An objective standard of reasonableness is used to determine reasonable standard of care State v. Williams (WA 1971)- parents convicted of involuntary manslaughter for failing to provide infant with medical care when he had a toothache. Convicted under ordinary negligence (not gross) WA state no longer imposes manslaughter liability for ordinary negligence Different result under MPC (actors situation) if you believe s fear of the welfare department 2. Reckless Murder Murder is differentiated from manslaughter based on the presence of malice by the . An act of gross recklessness that reasonably should have predicted to result in death is sufficient showing of malice. Commonwealth v. Malone- teenager shoots and kills his friend (thought bullet was in a different chamber), convicted of 2nd degree murder. appeals for reduction to involuntary manslaughter. Conviction upheld because had the requisite malice in gross recklessness Example of depraved heart murder Extreme recklessness (murder) and recklessness (involuntary manslaughter) difference: o Probability of the harm o Gravity of the expected harm o Willingness of the participants o Motivation 3. Felony Murder the broad conception of mens rea strikes back Common law felony murder can be convicted of murder if o Commits a felony o Death occurs during the felony First Degree Felony Murder: underlying crimes of robbery, burglary, rape, arson, kidnapping

Second Degree Felony Murder: other felonies Limitations on the felony murder doctrine o Causation King v. Commonwealth o Inherently dangerous felony requirement Abstract test- whether the crime by its very nature cannot be committed without creating a substantial risk that someone will be killed Manufacturing methamphetamines- inherently dangerous Theft (People v. Philips), false imprisonment, not inherently dangerous because can be committed without endangering life Fact-specific to the circumstances of the case- as the crime was committed in this instance, did it create a substantial risk that someone will be killed The answer to this is almost always yes- obviously a death occurred People v. Stewart- child abuse o Merger doctrine Felonious assault/battery cannot serve as the basis for FM (People v. Ireland) Since most murders involve assault, otherwise would eviscerate law of homicide A felony does not merge if the assaultive conduct involves independent felonious purpose People v. Burton- armed robbery merge Kidnapping does not merge o in furtherance of the felony State v. Canola Unlawful act doctrine (common law) A misdemeanor that results in death can lead to an involuntary manslaughter conviction, without proof of recklessness or negligence. MPC 210.2(1)(b)- rebuttable presumption Would abolish the felony murder rule, because of the mismatch between mens rea required by the offense and the s mens rea, and replace it with a rebuttable presumption. If the actor is committing a felony that then results in death, there is a rebuttable presumption that the requisite recklessness existed for the potential murder conviction. Recklessness/indifference presumed if the actor is committing/about to commit/committed Robbery, rape, arson, burglary, kidnapping, felonious escape Policy behind felony murder Deterrence o Of underlying crime o Of dangerous acts during the commission of a crime Problematic because Not much evidence that deterrence is effective o Not possible to deter negligent conduct ( awareness) Punishes same actions/mens rea disproportionately (luck) Any act that is known to endanger life/likely cause death, done for the purposes of committing a felony, and resulting in death, is murder Regina v. Sern- father takes out insurance policy on disabled son and house, burns the house down. Mens rea? Recklessness or gross negligence- similar to MPC Objective standard for conduct known to be dangerous Negligence is required to avoid strict liability murder (act must be known to be dangerous)

Less strict interpretation of felony murder rule (requires intent to commit a felony, and that the act be known to be dangerous/likely to cause death)

The felony murder doctrine is not limited to deaths that are foreseeable, but applies to any death that is proximately caused by the felonious action of the . People v. Stamp- in an armed robbery, victim dies of a heart attack while being told to lie on the floor and wait. was convicted of first-degree murder. Strict interpretation of the felony murder rule (requires only intent to commit a felony) Strict liability (no mens rea required) Causation is still necessary o Hypo: if the victim died in his sleep while the robbery was being committed, guilty First Limitation: Causation The underlying crime must be the but-for cause and the proximate cause of the resulting death for the felony murder doctrine to apply King v. Commonwealth- flying a plane to distribute drugs, plane crashes in bad weather and passenger dies. Pilot charged with felony murder, underlying crime being drug distribution. Not convicted of felony murder because drug crime unrelated to crash Proximate cause was bad weather Maybe different result if they had been flying dangerously low to avoid detection Second Limitation: Inherently Dangerous Felony The underlying felony must be an inherently dangerous felony in the abstract for the felony murder doctrine to apply, not based on the particular actions of (minority rule) People v. Philips- doctor encouraged parents not to move childs cancerous eye, child died six months later. Prosecutor pursued felony murder charges, underlying crime of grand theft. Grand theft is not an inherently dangerous felony in the abstract, so felony murder was later convicted of murder on extreme recklessness theory MPC? o Wouldnt fit under rebuttable presumption (not in enumerated list of crimes) o Could be charged with murder, extreme recklessness (same as common law) The inherent dangerousness of the underlying felony should be examined based on the facts and circumstances of the particular case, and not be limited by the statutory definition (majority rule) People v. Stewart- mother went on a crack binge and neglected to feed or care for her baby, who died. Convicted of second-degree felony murder, underlying crime wrongfully permitting child to suffer. Conviction upheld because the court allowed an examination of the specific facts of the case Somewhat circular- of course the committed crime is inherently dangerous as committed because someone died A low degree of foreseeability is necessary to make an offense inherently dangerous Hines v. State- accidentally shoots his friend while hunting, convicted of felony murder for underlying crime of being a convicted felon in possession of a weapon. Conviction upheld based on evaluation of inherent dangerousness of the specific circumstances (not the broader statutory definition) had been drinking while hunting, at dusk- low degree of foreseeability Dissent: facts establish negligence, but not a high probability of death, punishment is disproportionate to the crime committed Split to be inherently dangerous, must it be foreseeable that that harm will occur, or highly likely?

Third Limitation: Merger Rule If a felony and homicide occur as the result of a single course of conduct with a single purpose, the felony merges with the homicide and cannot be the predicate for felony murder (in fact included in homicide) People v. Ireland- husband kills wife, convicted of second-degree felony murder because killed her in the process of committing assault with a deadly weapon. Conviction overturned. Assault cannot be underlying felony murder crime bc assault inherent within murder (every murder involves assault- use of force against another) A felony can be the predicate crime for felony murder and does not merge if it has an independent felonious purpose aside from causing harm to another People v. Burton- convicted of first-degree felony murder, underlying crime of armed robbery. Appeals based on Ireland- armed robbery includes assault, which cannot be predicate crime Conviction upheld- independent purpose of armed robbery is taking something Armed robbery is the classic predicate crime for felony murder The court looks to legislative purpose to evaluate whether a crime can be the underlying crime for felony murder People v. Hansen- drug dealer shoots into a house for intimidation purposes, commits felony of discharging a firearm at an unoccupied building. claims independent purpose, so no FM. Court says independent purpose rule makes no sense because you end up punishing unintended crimes worse than crimes that were intended Looks to legislative purpose in not eviscerating the law of homicide Since many homicides do not involve this specific offense (shooting at empty house), does not merge If the underlying felony is assaultive in nature (involving the threat of immediate violent injury, analyzed in the abstract), it merges and cannot be the predicate crime for felony murder People v. Sarun Chun- shoots at a car, charged with negligently discharge of a firearm <(1) discharging a firearm (2) causing risk of death/injury (3) maliciously/willfully> Hansen approach not appropriate because many homicides involve this crime Because underlying crime was assaultive in nature, merges conviction overturned Does not define which felonious are assaultive, but those that involve the threat of immediate, violent injury, to be analyzed in the abstract Ex. of child abuse- if felony murder were allowed, based on specific circumstances, non-violent abusers would be treated worse than violent abusers Fourth Limitation: Killings not in furtherance of the Felony Proximate cause- a felon is liable for any death that is the proximate result of the felony, whether directly caused by the felon, a co-felon, or a third party (minority rule) People v. Hernandez (NY 1993)- felony murder conviction upheld against several armed robbers for death of policeman fatally shot by fellow officer in the course of gun battle with the robbers. Proximate cause liability valued because of stronger deterrence for underlying crime (liable for any death that occurs- more motivation to take due care, or not commit the crime at all) Agency theory- the felony murder doctrine applies when the act is committed by , or by co-felon acting in furtherance of common purpose. N/A when the act that caused the death is not attributable to or a co-felon. (majority rule) State v. Canola- when robbing a jewelry store, co-felon and owner exchange gunfire, and both die. convicted of felony murder in the death of the co-felon and the store owner. Conviction for the death of the store owner upheld (no question)

Conviction for death of co-felon overturned o Agency theory- act of causing death not committed by , or by co-felon in furtherance of their common purpose Preserves the link between blameworthiness and homicide (actus reus) o Other tests are proximate cause- responsible for any death that was the proximate cause of the felony Court declines to use this approach because too expansive of FM doctrine o Idea of justifiable killing- no liability for death of co-felon because justifiable Agency theory maintains the link between blameworthiness and the homicide IV. Mens Rea Revisited: Mistake and Strict Liability

A. Mistake of Fact Common law Mistake of fact is a full defense unless the act committed was wicked in the broad sense (moral wrong principle) under the facts as believed them to be, the act would be a lesser crime, sufficient to convict of the crime actually committed (lesser crime principle) Many jurisdictions use the MPC modern conception (mens rea must match), but crimes involving minors, sexual behavior, and drug offenses often stick to moral wrong/lesser crime view Mistake of fact does not negate criminal responsibility for strict-liability offenses Because statutory rape is a strict liability offense (in most jurisdictions), mistake of fact as to the victims age is not exculpatory (no matter how reasonable the mistake is) MPC 2.04(1)(a) Full defense if the mistake of fact negatives the requisite mens rea If no mens rea specified, apply 2.02(3) at least recklessness 2.04(2) If the facts as believed them to be constitute a lesser crime, convict of lesser crime Subjective standard- seeks to keep match between s mens rea/mens rea reqd by offense Moral wrong doctrine a person who knowingly performs a morally wrong act assumes the risk that the attendant factual circumstances are not as they reasonably appear to be. Triggered when s conduct would be immoral had the situation been as he supposed it to be. If a was doing an act that was morally wrong, mistake of fact is not a valid defense. Regina v. Prince (England 1875)- takes a 14 year-old girl from her parents, victim had said she was 18 and he reasonably believed she was. Convicted of (1) taking a girl (2) unmarried (3) under 16 (4) against her parents will. Conviction upheld under broad theory of mens rea- was acting wickedly by taking a young girl away from her parents, so mistake of fact does not negative the mens rea Problematic bc the judge is creating a new crime (not illegal to take someone 16 or over) Under MPC, would not be guilty o Statute silent as to mens rea, so apply minimum standard of recklessness per 2.04(1) o did not act recklessly (maybe negligently), so requisite mens rea not present Dissent- (lesser crime analysis) if would have been committing a crime under the facts as the believed them to be, guilty. If would not have been committing a crime, not guilty. Reasonable mistake as to the victims age is not a defense for sexual crimes involving children under 14 People v. Olsen (CA SC 1984)- s had sexual contact with a 13 year old who they believed to be 16, claim mistake of fact as a defense. Conviction upheld bc of special concerns regarding minors. People v. Hernandez- mistake of fact full defense to crime of statutory rape where reasonably believed partner to be 18, but not extended to especially young children

Consistent with MPC because there is a mens rea match (strict liability crime no mens rea)

B. Strict Liability True strict liability- did not know, or have reason know that anything about his conduct was wrong, as distinct from cases where is ignorant about one element but has mens rea for other elements. Common law Allows strict liability regulatory offenses for malum prohibitum crimes Main rationale is deterrence- these offenses are so dangerous to public welfare, we want to hold people to a standard that is even above reasonableness o Rationale could go the other way- since these crimes are not malum in se/ instinctively evil, should have a higher mens rea requirement MPC 2.05 There can be no strict liability offenses- no criminal punishment in the absence of negligence Any strict liability offense cannot be criminal, but only a violation with a legal consequence that is no greater than a fine Rationale: we cannot call someone culpable without some sort of mens rea state Supports the view of criminal law as secularized religion For public policy reasons, the state can create strict liability regulatory offenses with mens rea required United States v. Balint (S.C. 1922)- s sold derivatives of opium/coca without the appropriate order form, in violation of the Narcotics Act of 1914. Appeal bc did not know about necessity of order form. Rationale: proof of/lack of knowledge difficult to prove State is valuing the interests of society over the interests of an individual seller United States v. Dotterweich (1943)- convicted of violating Fed. Food, Drug, Cosmetic Act by shipping misbranded products in interstate commerce. Strict liability. Conviction upheld. Seller in a better position to mitigate harms than buyers are Purpose of protecting health of consumers in modern industrial society Crimes involving larceny cannot be among the public welfare offenses that carry strict liability as to certain elements Morissette v. United States- convicted of knowingly converting government property for turning (abandoned) shell casings from govt property into scrap metal <(1) knowingly (2) converts (3) things of value (4) of the US> Conviction overturned. knowingly converted, but didnt know the property was of value, or of the US Statute silent as to mens rea MPC 2.02(3) would impute recklessness to other elements Only appropriate to create a strict liability offense if regulatory offense, with small penalties, low stigmatization, or a recently developed crime Without explicit indication that mens rea is not required, the dispensation of the mens rea requirement based on public policy cannot be applied to any statute whose violation would result in felony conviction. Staples v. United States (S.C. 1994)- convicted of (1) possession (2) unregistered (3) firearm. Did not know gun was firearm because someone filed down the trigger, allowing it to shoot more than one shot. Conviction overturned. Recently created crime, owner in best position to avoid it with reasonable care (strict liability) But severe penalty (10 yrs prison), stigmatization (felony conviction) lean the other way Gun ownership is common, court declines to dispense with mens rea in a category that could criminalize a broad range of substantially innocent conduct.

Required mens rea must apply to all of the material elements of an offense US v. X-Citement Video (S.C. 1994)- convicted of <(1) knowingly (2) distributing (3) visual depiction (4) sexually explicit conduct (5) use of a minor>. claims did not know minors involved. Court held that mens rea must apply to all material elements, conviction overturned Because acts not a crime unless minors depicted, knowledge needed as to the element that makes the conduct criminal C. Mistake of Fact and Rape ELEMENTS: 1) Intercourse 2) By force/fraud 3) In the absence of consent Historic problems Raises sensitive gender issues (typically male on female) Criminal law has done a poor job of protecting women o Former legality of marital rape o Allowed sexual history of the victim as evidence Debate about what constitutes force Traditional common law view: physical force of the actor, defined by victims resistance Criticism: physical resistance is not always the only way of indicating lack of consent Debate about what constitutes lack of consent Internal state or external manifestations? Traditional common law view: intent or recklessness to violate consent necessary (negligence not sufficient) Common Law Three defenses/views under common law Honest belief = full defense (Morgan) o Minority view (UK, Alaska) Reasonable and honest belief = full defense (Sherry) o This is the majority view o Does not apply modern conception of mens rea if unreasonable and honest belief is not a defense (though it would be if it were negligence) o Negligence as to consent, intent/recklessness as to other elements o In a way, applying some sort of policy issue (protection of women so lack of perfect matching okay), or broad conception of mens rea (sex is bad) Strict liability o MA and PA o Most protective of victims but uses non-blameworthy individuals as means to an end MPC 2.04(1)(a) honest belief = full defense Only reasonable and honest belief is a full defense to the crime of rape (majority view) Commonwealth v. Sherry- nurse raped by four doctors, took her from a party to someones house. Appeal conviction bc they believed the victim was consenting, claim honest belief as full defense. Court upholds conviction- even though no mens rea match, purpose of protecting women Objective view- negligence is sufficient mens rea, even though not indicated in the statute No social utility in forming a rule around the subjective view of the perpetrator cannot be convicted of rape if he honestly believed the victim consented, even if the belief was unreasonable (minority view)

Defender of Public Prosecutions v. Morgan (House of Lords 1976)- four Air Force friends rape one friends wife, claim that it was consensual (unreasonable belief). Subjective view- honest belief negatives the requisite mens rea (intent/recklessness) o MPC supports this interpretation (statute silent as to mens rea) In spite of the ruling, conviction upheld (appeals court did not think belief was honest) Reasonableness is a factor that can be used to evaluate honesty D. Mistake of Law Common law mistake of law is generally not a valid defense, with a few exceptions Mistake of law is a valid defense if a party reasonably relies on an official statement of the law, later determined to be erroneous (reasonable reliance) o Ex- mistake of law if probation officer assured convicted felon okay to possess a weapon, but not if Department of Fisheries official told her the same thing Collateral mistake of law is a valid defense (Regina v. Smith- not unaware that illegal to destroy anothers property, but mistaken about property not belonging to another) o Except in jurisdictions that embrace the broad concept of mens rea (Woods) Constitutional defense available in limited circumstances when a person is unaware of an enacted and published criminal statute Lambert elements- punished on omission, duty imposed on the basis of status, malum prohibitum offense Riley v. OH- entrapment by estoppel MPC 2.02(9) There is no mens rea requirement for the illegality of an offense unless explicitly specified MPC 2.04(1) No defense unless o 2.04(1)(a)- collateral mistake of law (Smith) o 2.04(1)(b)- established as a defense by law (Cheek- tax crimes) o 2.04(3)(a)- right to notice (law must be published) o 2.04(3)(b)- based on official statement of the law ( personal interpretation- Marrero) Direct mistake of law- you dont know something is a crime (Lambert) Collateral mistake of law- doesnt know what he is doing, even though he knows the law (Smith- rents an apartment, smashes the wall panels. Charged with destroying property belonging to another. If you asked Smith, would know that destruction of anothers property was a crime, but didnt know he was destroying anothers property- mistake about law of property). Negatives material element regarding belonging to another Generally, mistake of law is not a valid defense under common law. People v. Marrero (NY 1987)- convicted of unlicensed possession of loaded pistol. claims he believed himself exempt as a peace officer (corrections officer) under the NY statute, appeals conviction. Corrections officers are not exempt under the statute- conviction upheld NY Penal Law 15.20 allows mistaken belief if based on official statement, based on MPC 2.04(3)(b) allowing mistaken belief if based on official statement that is later overruled NY Law does not require law to be later overruled for mistake to be a valid defense, but court goes with higher standard POLICY: want to prevent people from misreading statutes to their own advantage He knew there was a crime of unlawful possession- but for our purposes, strict liability crime. Collateral mistake of law (mistake of fact) would not have gotten him off the hook because there was no mens rea required as to the material element of peace officer- leaving him only an official statement argument.

Mistake regarding a material element of a crime that involves a legal concept (collateral mistake of law) is a valid defense Regina v. Smith (QB 1974)- convicted for violation of criminal damage act (intentionally/destroys/ property/of another) for removing floorboards he had installed in his rental apartment. appeals conviction for lack of mens rea for material element of belonging to another. Mistake involves legal concept of property- conviction overturned Collateral mistake of law valid defense in jurisdictions that embrace the broad concept of mens rea State v. Woods (VT 1935)- married a man in NV who divorced his wife the same day of their marriage. Marriage invalid under VT law, prosecuted under Blanket Act (intentionally/in bed/someone elses spouse). Jury instruction on valid defense denied because of broad mens rea- broadly blameworthy Had this been a jurisdiction that applied modern conception of mens rea, and had the offense required knowledge/recklessness collateral mistake of law defense (negatives the mens rea of knowledge/recklessness) But for collateral mistake of law, treated as if mistakes of fact within broader conception of mens rea, if you say mistake of fact doesnt matter b/c doing something morally wrong, then same reasoning applies to collateral mistake of law Even if strict liability, broad mens rea conception could lead to conviction Ex- man thinks he is married to a woman, leaves town for a new town (no one knows he is married). Goes and marries someone else. Mistake of law is a valid defense when specifically established by law (willful requirement indicates that knowledge of the law requires) Cheek v. US (S.C. 1991)- convicted of willfully/attempting to evade/any tax. claims two mistakes of law- honest belief that income was not taxable, and honest belief that taxes are unconstitutional. Remand. Willfully meant that some awareness of illegality required (to protect confused taxpayers) If has a good-faith misunderstanding of the duty at issue, you cannot prove he was aware of the duty and willfully violated it, regardless of the reasonableness of s belief. Honest belief that taxes are unconstitutional is not a valid defense because it does not reflect good faith misunderstanding, but instead an intention to understand. Mistake of law can be a limited defense under constitutional law Riley v. OH (1959)- McCarthy era, s told they had the right to remain silent to avoid self-incrimination, then were charged with contempt of court. Court found their conviction to be a violation of due process. Entrapment by estoppel- convicted for conduct government officials told them was legal Mistake of law can be a defense if the law in question was not made known to the public (exception based on due process notions) Lambert v. California (S.C. 1957)- convicted for being a convicted felon/in LA/>5 days/w/o registering. claims mistake of law because she was unaware of the statute. Conviction overturned- due process requires that individual shave notice of the law o The law was probably published, but not made available to at time of conviction Wholly passive crime- registration requirement just for being present in city limits Courts have not extended this to many other contexts (limited scope of the decision) o State v. Bryant- sex offender failed to register in another state, mistake of law defense because had to register in his own state so on notice of duty to register V. Causation

When the intervening conduct of a 3rd party, the victim, or a natural force is sufficiently out of the ordinary to excuse the criminal liability of the initial actor A wrongful act must be the. Factual (but-for) cause of the harm Proximate (sufficiently close) cause of the harm Common law But-for causation, AND Proximate cause, determined by o Foreseeability Appreciable increase of results probability No intervening cause Type of risk o Subsequent Human Action Intent Recklessness MPC 2.03 But-for causation, AND Additional requirements (intentionally avoids proximate cause language o Focus on s mens rea- causation is found if the result is within the scope of the actors purpose or knowledge of the risk o If not, there is no causation unless 2.03(2)(a)- actual result differs only in that a different person or property is injured, or the injury is more serious or extensive than contemplated Transferred intent- intent to harm one person can be transferred to the person actually harmed 2.02(2)(b)- same type of harm as contemplated, and the resulting harm is not too remote or accidental MPC 210.5- special causation prohibition for causing another to commit suicide- criminal liability only if caused by force, duress, or deception. A. Foreseeability and Coincidence Actors should be held liable if their criminal act appreciably increased the results probability. People v. Acosta (CA 1991)- stole a car, provoking a police chase by car and helicopter. Negligent helicopter crash resulted in 3 deaths, convicted of second-degree murder (reckless)- appeals conviction. Court finds proximate cause bc reasonably foreseeable s actions would provoke helicopter chase, foreseeable that chasers would act recklessly in the heat of a chase Conviction overturned bc requisite malice not present (did not consciously disregard the risktherefore, cannot be convicted under extreme recklessness murder) Dissent: accident outside the zone of foreseeable danger, intervening cause in pilots negligence. Actors should be liable if the type of risk of the harm that occurred was foreseeable. Actors should be liable if the harm that resulted was a reasonably foreseeable result of their act. People v. Arzon (NY 1978)- intentionally set fire to fifth floor of building. When fireman come to put it out, prevented from escaping by another unrelated fire on the third floor, and one dies. convicted of second-degree and felony murder- convictions upheld. Foreseeable that the lives of the fireman would be endangered in response to the arson s actions made the deceased vulnerable to the other cause (2nd floor fire)

Actors are liable only if the specific triggering cause of the harm was reasonably foreseeable, not if they just set up a dangerous situation. People v. Warner-Lamber Co. (NY 1980)- explosion at factory, company knew that concentration of chemicals created risk of explosion but did not eliminate the hazard, cause of fire unknown. Indicted for manslaughter, criminally negligent homicide- indictment dismissed. Because the triggering cause was not foreseeable, s not held liable. Compare with Arzon- difft result due to different level of culpability in initial act (setting a fire vs. running a factory), commission (setting a fire) vs. omission (failing to eliminate risk) B. Subsequent Human Action Human will breaks the causal chain of proximate cause. Encouraging suicide is not within the crime of homicide (killing another person) People v. Campbell (MI 1983)- drinking with his friend, who had slept with his wife. gave his friend a loaded gun and encouraged him to kill himself, which he did. Conviction overturned. only hoped the victim would kill himself, which is not the required degree of mens rea Suicide, by its definition, excludes the possibility of a homicide conviction If the participates in the final, overt act that causes death, and doesnt just provide the means of death, the can be convicted of homicide. People v. Kevorkian (MI 1994)- provided two women with machines that would kill them, did all of the set up but each women did the final action that caused their death. Murder charges dismissed. had the requisite mens rea, but not the actus reus HYPO could have been convicted if a victim was mentally ill to the point where her actions were not voluntary (no intervening human will to break the chain of causation) If had been negligently unaware of victims mental illness, could be charged with involuntary manslaughter MPC 210.5(1)- crime of causing another to take their own life by means of force, duress, or deception, (2) punishes assisted suicide at the same level as manslaughter C. Recklessly Risking the Result A reckless subsequent human action can also break the causal chain and relieve the initial criminal actor of liability Commonwealth v. Root (PA 1961)- and deceased were drag racing, at decedents invitation- deceased drove into oncoming traffic and was killed. Conviction for involuntary manslaughter overturned. s actions were the but-for and proximate cause of the death However, court wants to avoid using tort reasoning for criminal liability because of more severe consequences of a criminal conviction Dissent decedents actions were a natural response to the stimulus of drag-racing, therefore involuntary and do not break the chain of causation COMPARE WITH Proximate cause is an appropriate way to evaluate criminal liability State v. McFadden (IA 1982)- and friend were drag racing, friend dies along with innocent bystander. convicted of involuntary manslaughter for death of bystander and friend. Conviction upheld. Just because decedents reckless action was also the proximate cause of his death does not mean that cannot be held liable (his action was also the proximate cause) McFadden rejects the Root analysis o Paternalism (state can interfere with human will) v. liberalism (humans as autonomous)

Different levels of autonomy- in McFadden, driver lost control of vehicle and swerved into traffic, while in Root decedent deliberately swerved into oncoming vehicle

The less decisions that are made by the subsequent actor, the less likely that the causal chain is broken Commonwealth v. Atencio (MA 1963)- s and deceased were playing Russian Roulette, s each pulled the trigger on themselves with no result and then deceased had the bullet. Convicted of manslaughter. s appeal on the basis that decedents voluntary participation is supervening act Court upholds conviction- found to have acted in concerted action/cooperation No skill involved (like in drag racing)- based on percentages, harm would occur In this case, criminal liability broad than tort liability (recovery would be barred under tort law) HYPOS: Causation under the MPC Someone else drinks poisoned whiskey than the intended victim o GUILTY but-for cause, transferred intent Shoots to kill, misses and hits tire, car crashes into wall and kills intended victim o GUILTY but-for cause, same type of harm, not too remote/accidental Shoots to kill and misses, car turns north and hit by drag racer, killing victim o NOT GUILTY too remote/accidental, autonomous action of drag racer intervenes o Criminally responsible for attempted murder but not the death Kevorkian providing women with death machines o GUILTY but-for cause, within the actors purpose/knowledge o 210.5 specifically excludes liability for assisted suicide Acosta under the MPC o Depends on evaluation of the helicopter crash- foreseeable? Or too remote? Root under the MPC o Prosecution- harm within the risk of drag racing GUILTY o Defense- actor did not create the risk, the deceased did NOT GUILTY o Intervening human will can make the result remote in relation to s action Atencio under the MPC o GUILTY but-for cause, within the actors purpose/knowledge of the risk Arzon under the MPC o Harm within the risk created by setting the fire GUILTY o 2nd fire not foreseeable, too remote NOT GUILTY VI. Attempt Attempt is an incomplete crime because of a lack of a material element required in the offense, not because of a lack of mens rea. Why punish attempt? Retribution a moral wrong has been committed Deterrence society doesnt want to these crimes to be committed Should the punishment be different for an attempt than for a completed offense? Common law yes, different sentence appropriate because no harm has occurred MPC perspective no, because this is just a matter of luck Support the same sentencing for attempt, except in cases of life imprisonment/death penalty o Purposes of these sentences is deterrence, no deterrence value added by punishing inchoate crimes Problematic because From an objectivist standpoint- need to make sure we are punishing crimes that occur in the

objective world, and not just thoughts From a retribution standpoint- there is no harm that needs to be amended/corrected Parity rule whatever mens rea is sufficient for the completed crime, sufficient for attempt This could lead to over-criminalization Speeding could be attempted involuntary manslaughter Could use this and allow prosecutorial discretion as limiting factor o Prosecutors arent that trustworthy, unfortunately Linguistic argument: attempt implies intent MPC 5.01(1)(b) Minimum mens rea for conduct is purpose Minimum mens rea for result is purpose/belief o Belief allowed because it could be wrong or right- as long as person believes the result will be brought about, even if it were a wrong belief Common law Sentence o Different for completed crimes and attempted crimes Mens Rea o Conduct intent o Result intent o Attendant Circumstances unclear o Parity mens rea of completed crime sufficient for attempt Actus Reus o Proximity test attempt until within dangerous proximity of committing the crime- looks at what is left to be done o Equivocality test act must show in unequivocal terms that intends to commit the offense MPC 5.01 Sentence o The same sentence except for the most serious offenses (life imprisonment/death) Mens Rea o Conduct purpose o Result purpose/belief o Attendant circumstances same mens rea as completed offense Actus Reus o Substantial step Strongly corroborative- looks at what has already been done List of Situations o 5.01(4)- complete defense available in renunciation of purpose A. Mens Rea Crimes of attempt require a mens rea of purpose, even if the completed offense has a lower mens rea requirement Smallwood v. State (MA 1996)- appeals three counts of assault with intent to kill for engaging in unprotected sex while HIV positive. Convictions overturned. Knowledge of HIV positive status is not sufficient to establish the requisite intent to kill Magnitude of the risk is smaller than in cases of shooting a loaded gun at someone In similar cases, convictions upheld when intent to kill was expressed (Ill give you AIDS!)

If a victim had died of AIDS, could be convicted of reckless/negligent manslaughter

Statutory rape hypothetical about to have sex with 17 year-old who he reasonably believes is 20, stopped before act begun. has requisite purpose as to engaging in the conduct, but not as to attendant circumstance If strict liability offense as to age- mens rea match, guilty of attempt (MPC) If attempt requires a higher mens rea as to attendant circumstances- guilty because purpose Common law is unclear on the requisite mens rea for attempt as to attendant circumstances B. Actus Reus King v. Barker- rejects the Eagleton test ( must have taken the last he was able to take in his criminal plan to constitute criminal intent, not just preparation). Regina v. White- first poisoning in a serious of poisonings to result in death were sufficient for criminal intent. Proximity test A must be in dangerous proximity to completing the crime to be guilty of attempt People v. Rizzo (NY 1927)- s were driving around looking for a bank teller to rob, had not found him yet when they were stopped and arrested by the police. Convictions for attempt overturned. The acts of s were too far removed from the commission of the crime to constitute attempt Must be committing acts that tend to effect the commission under NY law Equivocality test Attempt requires an actus reus of that shows in unequivocal terms that intends to commit the offense McQuirter v. State (AL 1953)- black waited outside and appeared to follow a white woman, convicted of attempt to commit assault with attempt to rape. Conviction upheld (!) Police claim admitted to the crime, but under equivocality test, still no conviction because actus reus did not unequivocally indicate intent Looks to acts and not confessions because historically inherently coercive environment, reliance on plea bargaining can provoke confessions that implicate others Uses a third-person perspective to evaluate if an act would constitute attempt o Proximity could be a better test if you had a racist jury MPC substantial step test (5.01(2)) if the actions of constitute substantial steps towards the commission of a crime, the is guilty of attempt United States v. Jackson (2nd Cir. 1977)- planned armed robbery of a bank. Went one time, too many people. Went back a second time, arrested outside of the bank with instruments for robbery in car. Shifts the focus from what is left to be done to what has already been done Lower test than equivocality- admits total context, more factors, subjective analysis because substantial step is evaluated in comparison to mens rea Conduct evaluated to see if it indicates firmness of intent MPC 5.04(1) Moves the point of proximity farther back from the crime, but allows defense of abandonment Abandonment must occur under circumstances manifesting voluntary and complete renunciation of the criminal purpose C. Impossibility MPC 5.01(1) is guilty of attempt if, acting with the mens rea otherwise required for the commission of the crime if he:

(a) Purposely engages in conduct which would constitute a crime if the attendant circumstances were as believed them to be Does not allow room for legal impossibility defense because of emphasis on mens rea Factual impossibility defense when extraneous circumstances unknown to the actor/beyond his control prevent consummation of the intended crime. Pickpocket cases State v. Mitchell- shoots into a room where he incorrectly believes victim to be sleeping Legal impossibility defense available where the intended acts, even if completed, would not amount to a crime, or where (1) the motive, desire, and expectation is to perform an act in violation of the law; (2) there is intention to perform a physical act; (3) there is a performance of the intended physical act; and (4) the consequences resulting from the intended act do not amount to a crime. State v. Jaffe- tries to buy stolen goods that are no longer stolen State v. Guffey- shoots a stuffed deer out of season, believing it to be a real deer State v. Taylor- tries to bribe someone he incorrectly believes is a juror State v. Berrigan- smuggles letters from prison, falsely believing the warden doesnt know True legal impossibility/mistake of law believing you are committing a crime that is not a crime. has consensual sex with a 17 year-old, believing it is a crime because shes under 18 Actually a crime only if shes under 16 Mistake of law, but the opposite way (believing act to be a crime when it is not) Inherent impossibility when an act is totally impossible Abbot tries to kill Costello by putting pins in a voodoo doll MPC 5.05(2)if the particular conduct is so inherently unlikely to result in the commission of a crime that neither the conduct nor the actor present a public danger If the completion of the immediately contemplated act would not constitute a crime, then legal impossibility defense applies People v. Jaffe (NY 1906)- tried to purchase what he thought was stolen cloth; however, the cloth had been returned to its owners and was no longer stolen. Convicted of attempt to receive stolen property. Conviction overturned because of legal impossibility (minority position) From an objective perspective, nothing wrong was occurring ($ exchanged for goods only) Factual impossibility is not a defense- pickpocketing (criminal act) vs. buying cloth (commercial) If the completion of the immediately contemplated act would constitute a crime if the facts were as the believed them to be, the can be convicted of attempt. People v. Dlugash (NY YR??)- shot at already-shot victim, believing him to be dead. No way of knowing if he was dead or not. convicted of murder, modified to lesser included offense of attempt. Murder conviction could not stand bc didnt cause the death of another beyond reasonable doubt You could characterize this as legal impossibility (shooting at a stuffed deer) or factual impossibility (shooting into an empty room) No defense because factual impossibility- crime because circumstances outside actors control, objectively troubling from a 3rd party perspective. VII. ACCOMPLICE LIABILITY Under what circumstances can someone be held criminally liable for the acts of another person? Definitions Principal in the first degree perpetrator of the crime Principal in the second degree present at the scene of the crime, aiding and abetting the crime to be committed

Accessory before the fact procured, counseled, or commanded another to commit the crime Accessory after the fact knowing a felony has been committed, receiving, relieves, comforts, or assists the felon Same punishment for accomplices as principles, except in cases of accessory after the fact (and leniency in sentencing is available) Common law Mens rea o Conduct offense intent (purpose) to aid/encourage the conduct (Hicks, Gladstone) with two exceptions Luparello- liable for natural and probable consequences of crime Minority of jurisdictions allow both purpose and knowledge as acceptable mens rea states for intent to aid/encourage o Result parity (same mens rea as principle) (McVay, Russell) o Attendant circumstances open to discussion (intent or parity) Actus Reus o Aiding or encouraging the conduct No causation or crucial contribution required (Wilcox, Tally) Must be actual aid/encouragement (Tally) Attempted/completed crime necessary Objectivist viewpoint- no cause for concern if crime not yet begun Renunciation defense MPC With the purpose of promoting or facilitating the commission of the offense, he (i) solicits another to commit the offense, or (ii) aids or agrees to attempt to aid the person in the offense, or (iii) having a legal duty to prevent the commission of the offense, fails to do so. Mens rea o Conduct offense purpose required (2.06(3)(a)) o Result offense parity (same mens rea as required by the crime) (2.06(4)) o Attendant circumstances silent (leaves to courts- intent or parity) Actus Reus o Aiding or encouraging the conduct No causation/substantial contribution required No actual aid/encouragement necessary No attempted commission or completion necessary (5.01(3)) Would not be guilty of complicity, but as principle in attempt to aid Renunciation is a defense if involvement is renounced, and Deprive fellow actors of effectiveness, or Promptly warn law enforcement A. Mens Rea must have the intent that his aiding/abetting will bring about the desired result to be held liable as an accomplice Hicks v. United States (S.C. 1983)- was overheard stating take off your hat and die like a man and laughing when his friend shot the deceased, appeals murder conviction as an accomplice. claims he was scared the shooter would also kill him, no intent to aid Conviction overturned- he intended to say the words he said, but did not intend that they would bring about the death of the victim Variations o goes to watch shooter kill victim- guilty, mens rea, actus reus o shouts encouragement during shooting- guilty, mens rea & actus reus

o o

silently resolves to help shooter succeed- guilty, mens rea but actus reus tells shooter he will help him- guilty, mens rea & actus reus

To be convicted of aiding and abetting, must have some nexus to the person who commits the criminal act or investment in the success of the crime State v. Gladstone (WA 1970)- undercover agent tried to purchase pot from , directed him to a different person and gave him an address but did not communicate with second seller. Conviction for aiding and abetting the sale of marijuana overturned. Charged with aiding and abetting the sale, not the purchase (which he arguably did) o State v. McKeown- guilty when communicated with seller, present at sale o State v. Wilson- guilty when shared residence, encouraging comments during sale This decision holds that intent means only purpose (not purpose or knowledge- like MPC) Substantive Crimes of Facilitation Hypo- gas station attendant gives gas to a car on its way to rob a bank, after overhearing their plan. Generally, no duty to act (by calling the police or trying to stop them) Society does not want to over-criminalize commercial transactions But knowledge should be sufficient when someone knows and provides special aid Posners solution- make knowledge sufficient for aiding serious offenses, and require purpose for less serious offenses o This has been adopted re: terrorism When the crime ultimately realized is distinct from the crime the accomplice intended to support, the accomplice is criminally liable if the crime naturally, probably, and foreseeably was put in motion by their actions. People v. Luparello (CA ####)- asked his friends to get information on his ex-lovers location from a friend of her new husband, they then killed the friend. Convicted of murder as accomplice. Conviction upheld- see murder as a foreseeable consequence of encouraging the assault Intent of principal and accomplice need not be identical as long as result foreseeable Under MPC- no conviction because there is no natural/probable consequence doctrine To be a foreseeable consequence, an event must naturally follow in the ordinary course of events, and not just be conceivably possible Roy v. United States (DC 1995)- undercover agent tried to buy a gun from . told him to come back with $, then referred him to Ross, who then robbed the undercover agent. Convicted of armed robbery. Conviction overturned- armed robbery foreseeable consequence of sale of unlicensed gun Conviction for attempted sale possible- intended sale to happen Narrows Luparello doctrine For result offenses, the mens rea that is sufficient for the principal is sufficient for the accomplice (parity regarding result) State v. McVay (RI 1926)- instructed steamer ship employees to overheat a boiler, which then exploded, causing deaths. Principals convicted of involuntary manslaughter, indicted as accomplice. argues that he cannot be an accomplice to an inherently inadvertent crime However, conviction upheld because mens rea match (gross negligence/recklessness) Community of purpose can be found when s intentionally engage in mutual combat, even if their ultimate purpose/goals differ (killing one another) People v. Russell (NY 1998)- innocent victim dies in gun battle between 3 s. No way of knowing whose bullet killed him- all 3 s convicted of murder (extreme recklessness).

Each actor had the necessary mens rea (recklessly engaged in conduct that endangered life) Each actor intentionally aided whoever fired the fatal shot by their own participation

B. Actus Reus There is no causation requirement for a conviction for aiding and abetting Wilcox v. Jeffery (UK 1951)- journalist attended a jazz concert where the musician was performing illegally on a tourist visa. Convicted of aiding and abetting the concert. Aiding and abetting in buying a ticket, and then writing about the concert Most US jurisdictions would find not guilty- only acted with knowledge, not intent/purpose Why is this conviction troubling to us? o We dont agree with the criminalization of the underlying act o We think there should be a higher standard for aiding administrative vs. traditional crimes o Conviction for knowledge only, not purpose, may be troubling Assistance to a crime need not be the but-for cause of the crime; it is sufficient if the assistance facilitates and act that would have taken place anyway. State v. Tally (AL 1894)- wanted a man killed because he had seduced his sister-in-law, sent telegram to the town where the victim was asking the telegraph operator to not deliver the warning telegram sent by the victims friend. Warning telegram was not delivered, victim killed. Convicted as accomplice. Actual aid is required- denied victim slight chance of being saved by warning telegram VIII. Conspiracy Common Law Agreement to commit a crime or an unlawful act sufficient MPC 5.03(1) A person is guilty of conspiracy to commit a crime if, with the purpose of promoting or facilitating its commission, he a. Agrees with another person(s) that one or more of them will commit the crime, attempt to commit the crime, or solicit someone to commit the crime. b. Agrees to aid another person(s) in the planning or commission of the crime, or in the attempt or solicitation to commit the crime. Conspiracy merges with any completed offenses, but does not merge as to additional offenses not yet committed or attempted Unilateral conception- if you think you are committing conspiracy, that is enough (even if the supposed co-conspirator is an undercover agent) Agreement must be to commit a crime, as opposed to an unlawful act (e.g. tort defamation) Conspiracy differs from attempt in that Attempt always merges with completed crime, conspiracy does not Attempt is not a separate crime, but a theory under which someone can be convicted of crime committed; conspiracy is an independent crime Conspiracy allows police intervention at a much earlier point than permitted under attempt A preparatory act that would not be criminal under attempt (researching poisons) can be evidence of conspiracy if preceded by an agreement to kill (agreement to kill + research = conspiracy to kill) Rationale behind conspiracy doctrine Broad deterrence of criminal acts- can hold individuals liable for crimes that they would not have attempted Prosecutor can choose venue- can prosecute anywhere where any act in furtherance of the

conspiracy occurred Can try actors together- imputing the culpability of one member to the entire group Greater power of criminal groups than of individuals (more resources) The most dangerous crimes in our society (genocide, terrorism, mafia) can only be committed by groups

A. Conspiracy as a Form of Accessorial Liability An overt act of a conspirator can be attributed to an co-conspirator as long as the act was reasonably foreseeable/natural consequence and committed in furtherance of the conspiracy. Pinkerton v. United States (S.C. 1946)- convicted of conspiracy to violate tax code, crimes committed by s brother while was in jail bc brothers acts were committed in furtherance of the conspiracy. Could not be convicted as accompliceo actus reus of aiding ( participation in committing the offense, encouragement would be too vague bc didnt encourage him to commit the specific offenses) o mens rea (no purpose or even knowledge about the specific offenses) Criminal intent is established by the formation of the conspiracy Conspirator is liable for all foreseeable/natural/probably consequences of the conspiracy A co-conspirator may be held liable for substantive criminal acts that are not in furtherance of the conspiracy if they are reasonably foreseeable as the necessary or natural consequences of the conspiracy. States v. Bridges (NJ 1993)- recruited friends to help him win a fight at a party, friends opened fire on the crowd and killed people. convicted of conspiracy to commit aggravated assault, murder. Based on objective standard of reasonable foreseeability- in this case, reasonably foreseeable that death could occur after bringing loaded weapons into a hostile situation Felony murder doctrine applicable because crime of assault would merge with murder Murder was not actually in furtherance of agreement to engage in a fist fight- court says not necessary, only needs to be reasonably foreseeable In the absence of the requirement that the criminal act be in furtherance of the conspiracy, the degree of contribution by the conspirator shall be a limiting factor on criminal liability. United States v. Alvarez (11th Cir. 1985)- s convicted of 2nd degree murder for shooting of federal agents in drug bust, each played a role in drug hand-off but not directly in the murders. Because the s were major participants (armed lookout, introduced agent to leader of the group, motel manager who allowed trade) and had knowledge, liability is appropriate Like Bridges, criminal act need not be in furtherance of conspiracy, only reasonably foreseeable B. Actus Reus and Mens Rea Actus Reus of conspiracy requires Existence of an agreement between the parties An overt act (in some jurisdictions) Mens rea- is knowledge sufficient? Common law- knowledge is sufficient for serious crimes, sufficient for less serious crimes MPC- purpose required for all crimes, even serious ones Unlawful conspiracy can be proved without simultaneous action or agreement by the co-conspirators. Interstate Circuit, Inc. v. United States (S.C. 1939)- movie theater chains and film distributors agreed to limit distribution in violation of Sherman Anti-Trust Act; no evidence that formal agreement ever reached but each theater agreed individually with implied knowledge that others did the same.

Not plausible that individual theaters would have agreed to limit distribution without knowledge that the other theaters were doing the same (otherwise would hurt their business substantially) Sufficient that parties knew concerted action was contemplated, and agreed to the action Courts have allowed prosecutors to prove agreements through circumstantial evidence because of the likelihood that no evidence of explicit agreement will be found

Positive knowledge of the supplier that his products/services are being used for criminal purposes does not alone establish intent of the supplier to participate, if the criminal activity is a misdemeanor People v. Lauria (CA 1967)- ran telephone service, had knowledge that several customers were prostitutes. Convicted of conspiracy to commit prostitution, conviction overturned Conspiracy can be found when the supplier knows of the buyers intended illegal use, and intends to further the illegal act by the sale Intent can be inferred if the seller has a stake in the venture, if there is no legitimate use for the goods/service, or if the volume of sales for illegal use is grossly disproportionate to legal sales In this case, only knowledge and no intent, not serious crime conviction overturned IX. Justification and Excuse Applies when further considerations may negate culpability, even when all of the material elements of an offense have been met (self-defense, insanity) A. Self-Defense Self-defense is a justification 1. Reasonableness Common Law 1. Reasonable belief 2. Necessary use of force 3. To repel an immediate/imminent use of unlawful force 4. Force used by was not excessive MPC 3.04 1. Honest belief is a full defense to any offense requiring purpose or knowledge a. 3.09(2) if the belief was reckless/negligent, no defense available for crimes with the reckless/negligent mens rea requirements (extreme recklessness murder, negligent homicide) 2. Immediately necessary to use force for defense a. Refers to the necessity of the force used by , not immediacy of the harm b. Allows self-defense justification for situations slightly in the future 3. Against unlawful force 4. No excessive force a. 3.04(2)(b)-deadly force only allowed when believes such force is necessary to protect himself against death, serious bodily harm, kidnapping, or forced sexual intercourse. United States v. Peterson (DC 1973)- lays out the main common-law elements of a self-defense justification. The right to self-defense arises only when necessity begins, and ends when necessity ends. Hypos Punching someone when they curse at you self-defense because no imminent threat of unlawful force. Mere words dont constitute aggression (predominant common-law position).

Limited exceptions- words that threaten to commit battery, or words that try to provoke physical conflict to incite the assault (not accepted by all courts). Costello comes at Abbot with upraised fists, Abbot punches him in the mouth self-defense because imminent threat of violence, proportionate response. Costello punches Abbot in the mouth, then leaves. Abbot then runs after him and attacks him self-defense because threat no longer imminent. After Costello punches Abbot, he seems like he will punch him again, and Abbot hits him with a crowbar and kills him self-defense because use of excessive force. General rule- cannot use deadly force against anything but deadly force. Costello says hes going to go home and get a gun- as he turns to leave, Abbot stabs him self-defense because threat is not immediate (applicable unless the gun were actually in reach) During argument, Costello threatens to kill Abbot. Costello reaches into his pocket for a bulge. Abbot shoots him- but the bulge was actually Kleenex self-defense allowed if reasonable to believe that there was a gun there. Reasonable belief, not knowledge. o

The reasonableness of the evaluation of the need for deadly force should be an objective evaluationbased on a reasonable person in the s situation. People v. Goetz (NY 1986)- approached on the subway by four black males, opens fire on them with unlicensed handgun and cripples one. had been mugged before. Indictment for assault, attempted murder dismissed by the lower court on a fully subjective standard, reinstated by higher court. Not entirely objective- allows evaluation of circumstances of (physical attributes of perceived assailants, relevant knowledge, prior experience of ) A completely subjective standard would allow acquittal of anyone who claimed reasonable belief Under MPC, if negligent belief, would have defense against murder charge but not against negligent homicide. No defense under common law (belief not reasonable) 2. Battered Women and Imminent Danger Evidence on battered womens syndrome is helpful because Gives credibility to the womens testimony o Helps jurors understand why women are not able to leave their situation Identify a battered womans special ability to predict when violence is imminent Evidence on battered womens syndrome should be admissible to help establish s credibility. State v. Kelly (NJ 1984)- had been severely abused by her husband for several years, after he attacked her in public she stabbed him with scissors while he was running at her. Expert testimony on battered womens syndrome had been barred at trial, convicted of reckless manslaughter. Remanded, holding that expert testimony on battered womens syndrome admissible Testimony would help establish credibility of s reasonable belief of imminent danger For a self-defense justification, the threat of danger must be temporally imminent, and cannot be expanded based on the unique circumstances of battered women (majority position) State v. Norman (NC 1989)- killed her husband while he was sleeping after years of severe abuse, after failure of legal and social services system to aid her. Convicted of voluntary manslaughter. Court upheld denial of self-defense instructions because husband was not imminently going to harm her while he was sleeping, had other means of preventing further abuse Possibility of imperfect self-defense (belief in imminent danger) irrelevant because would only reduce conviction to voluntary manslaughter, of which was convicted.

State v. Schroeder (NB 1978)- cellmate threatens to rape while he is sleeping, then kills cellmate in the night. Appeals court affirms denial of self-defense instructions. Does not want to legitimize use of deadly force against mere threats, harm imminent Potential defense under MPC- may have been immediately necessary for to use force to protect himself on the present occasion (that night) Inevitable harm is not the same as imminent harm Ha v. State (AK 1995)- victim of gang violence and threatened reprisals, feared that police would not help because of ethnicity and lack of English skills, preemptively killed aggressor. Self-defense instruction not allowed because harm not imminent 3. The Duty to Retreat and the Initial Aggressor Common lawtwo positions No duty to retreat (majority position) o As long as elements met (reasonable belief/necessary force/in response to imminent unlawful force/force not excessive) o Justified by Administrability reasons (difficult to determine s awareness of safe retreat) Allowing self-defense as a means of doing justice on the spot Problematic vigilante justice, deprivation of due process Supporting the rights of the victim over the rights of the aggressor American ideas about standing your ground Duty to retreat (minority position) o Follows MPC standard- duty to retreat if would use deadly force to protect himself, and if aware of completely safe option for retreat o Castle doctrine-no duty to retreat if you are attacked in your own home (follows MPC) MPC Duty to retreat in principle if needs to use deadly force No duty to retreat if only non-deadly force necessary for self-defense o Deadly force force intended or likely to cause death or severe bodily harm So deadly force because of self-defense is justified only when there is no option for a completely safe retreat, or if had no knowledge of the option for a completely safe retreat No duty to retreat if you are attacked in your own home The question of retreat only arises if the resorted to deadly force. Deadly force is not justifiable if the actor knew that he could avoid the necessity of using force with complete safety by retreating. State v. Abbott (NJ 1961)- was attacked by neighbors in his driveway, in a struggle for a hatchet injured neighbors son. Convicted of assault, appeals based on instruction on duty to retreat. Appeals court holds that entitled to stand his ground if use deadly force in response An affirmative unlawful act reasonably calculated to provoke a conflict that could result in serious harm or death is an aggression that then nullifies the right to self-defense United States v. Peterson (DC 1973)- saw victim in his backyard, yelled at him to leave. As victim was leaving, reemerged with a gun and told him not to move. Victim approached , shot him. The right to use deadly force is unavailable to the party who is the aggressor/provokes the conflict Though was not initial aggressor, he became the aggressor when he re-initiated the conflict Can the initial aggressor regain the right to self-defense? Initial aggressor

Starts a non-deadly conflict Not necessarily the first person who uses force (could simply brandish a weapon) Issue of whether a lost the right of self-defense because of initial aggressor status is a question for the jury Deadly aggressor acts are reasonably calculated to produce fatal consequences o Only regains the right to self-defense by Withdrawing from the conflict Fairly communicating this fact to the other party Non-deadly aggressor o Immediately regains the right to self-defense if the victim responds with deadly force Still liable for initial non-deadly assault o Earlier approach- does not automatically regain right to self-defense unless no safe retreat available. If retreat available and does not retreat manslaughter/imperfect self-defense o o o

B. Necessity The choice of evils Common law NY o blameless in the situation o Necessary conduct (objective standpoint) o To avoid imminent injury o Ordinary standards of intelligence and morality o To avoid clearly greater injury o No statutes second-guessing IL o blameless in the situation o Reasonable belief o That the conduct is necessary (subjective) o To avoid greater injury MPC 3.02 Belief o That the conduct is necessary o To avoid harm The harm must be greater (objectively determined) than the act committed o Evaluate not only harm that will be escaped by the actor, but harms sought to be prevented in greater society (e.g., lack of deterrence if defense allowed) No exceptions/legislative purpose that excludes the justification claimed Courts are generally unsympathetic to the necessity defense in cases of prison inmate escapes People v. Unger (IL 1977)- serving prison term, victim of sexual assault and death threats, feared that prison officials would be no help. Escaped, claimed necessity defense when caught. No duress defense because no one forced him to run away (had his own free will) Lovercamp criteria for use of necessity in prison escape situations o Prisoner is faced with specific threat of death, forcible sexual attack, or substantial bodily injury in the immediate future o No time for complaint, or a history of futile complaints o No time/opportunity to resort to the courts o No evidence of force or violence towards prison personnel or others during the escape o Immediately reports to proper authorities when in position of safety

meets all criteria except the last one, so necessity defense should have been allowed DISSENT: should not allow necessity defense outside of Lovercamp criteria because the broader availability of the defense could encourage prison escapes, disrupt discipline, cause injuries

Necessity is not a valid justification for the homeless who trespass on private property. Borough of Southward v. Williams (UK 1971)- homelessness pervasive problem in London at this time, no government help available. families squatted in empty houses, claimed necessity against trespassing Necessity allowed- if defense were allowed, all property could be inhabited by the homeless Necessity will allow encroachment on private property in cases of great and imminent danger, but the circumstances must be limited When an act is in violation of legislative purpose, a necessity defense will not be allowed Commonwealth v. Leno (MA 1993)- in violation of state law against needle distribution without a prescription, s operated needle exchange program. Claimed necessity as to fight against AIDS- denied. s failed to show that the danger they sought to avoid was clear/imminent and not speculative State statue prohibits needle distribution- courts do not want to oppose legislative intent If the negative societal impact of a s actions would outweigh the benefit to the individual, the necessity defense will not be allowed. Commonwealth v. Hutchins (MA 1991)- convicted of unlawfully growing marijuana, claimed necessity bc victim of terrible disease with no cure, smoking marijuana had produced remission. The importance to of his cultivation of marijuana would not outweigh the negative societal impact of allowing marijuana to be grown for medicinal purposes DISSENT this ignores the purpose of the necessity defense, in allowing the needs of an individual to outweigh public policy in certain situations The necessity defense is unavailable in cases of indirect civil disobedience United States v. Schoon (9th Cir. 1992)- s appeal conviction for obstructing IRS activities in act of civil disobedience re: US policies in El Salvador, claim necessity defense in that their actions were necessary to prevent violence and death caused by US policy in El Salvador. Defense denied. Potentially available if breaking an unjust law to protest it (Rosa Parks scenario) Not available when breaking a just law to protest a different law/policy Necessity hypos Courts are split on whether the necessity defense is available as to killing another human being Regina v. Dudley and Stephens (UK 1884)- s were actually raising a necessity defense. Can the necessity defense apply in cases of killing another human being? MPC yes, necessity can be a defense to killing another human being o Assigns each life an equal value of 1, so killing 1 to save 2 could be justified Common law o Necessity is not a defense to killing another human being (Dudley and Stephens) o Necessity can be a defense to killing another human being C. The Insanity Defense Insanity s mental state at the time of the commission of the crime Competency s mental state at the time he will stand trial for his crime Forbidden to try someone who is incompetent to stand trial because they cannot present a defense o Similar to being tried in absentia (not allowed in US)

MPC 4.04 no person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted, or sentenced for the commission of the offense so long as the incapacity endures. MNaghten test (majority position) Mental disease Cognitive element o Lack of knowledge Of the nature of the act committed, OR Of the wrongfulness of the act Davis test Mental disease Cognitive element volitional element Federal law Severe mental disease Inability to appreciate the nature/wrongfulness of the act No defense (minority) MPC 4.01 Elements of an insanity defense o Mental disease o Cognitive element Inability to appreciating the wrongfulness of ones conduct Not just intellectual knowledge, but some sort of emotional understanding o OR Volitional element Lack of capacity to conform ones conduct to the appropriate standard MNaghten standard: mental disease + cognitive element (lack of knowledge of act or wrongfulness) MNaghtens Case (UK 1843)- assassinated prime ministers assistant, thinking he was the prime minister, found not guilty by reason of insanity. Highly controversial acquittal. To be found not guilty by reason of insanity, a defendant must be mentally ill and lack knowledge of the nature of his act, or the wrongfulness of his act In this case, the knew he was killing someone, but did not know the killing was wrong The King v. Porter (UK 1933)- identifies primary purpose of punishment as deterrence, and deterrence is not effective if is unable to understand what he is doing State of mind at the commission of offense must be one of disease, disorder, or disturbance Excitability, passion, stupidity, impulsiveness are not sufficient The appropriate standard for the insanity defense is MNaghten +substantial lack of capacity (MPC) Blake v. United States (5th Cir. 1969)- had history of mental illness/sociopathic tendencies, robbed a bank in a very bizarre manner (not premeditated). Appeals conviction based on reasons of insanity. Davis standard mental disease + cognitive element (incapable of distinguishing between right and wrong) and volitional element (unconscious OR completely unable to control actions) MPC mental disease + cognitive element OR volitional element (lack of substantial capacity to conform his conduct to right actions) Substantial capacity test is appropriate based on current understandings of mental illness- s will was not completely destroyed, but he was substantially incapable of understanding wrongfulness o MPC test allows degrees of awareness/capacity- less harsh than Davis test

Lack of substantial capacity due to drug addiction is not an appropriate insanity defense. The law shall treat all criminal impulses as resistible. United States v. Lyons (5th Cir. 1984)- appeals conviction for possession of controlled narcotics, claims lack of substantial capacity to obey the law due to brain damage from drug addiction. Adoption of Blake standard (lack of capacity) was premature- volitional prong does not comport with current medical/scientific knowledge, cant determine if someone lacks self-control or not Reflects view that blameworthiness less important than neutralizing dangerous individuals