Criminal Law I INTRODUCTION TO THE CLASS A PRASHAD: Common Perspective 1 Poor are coddled facts dont bear this

s out 2 People work harder for less money 3 Gap between rich and poor has grown 4 Poor supplement income in extra-legal ways 5 Corporate incentives and economic conditions contribute to this difficulty B RUTH & REITZ: Criminal Justice System 1 Evolution from the institutions of the 19th century a Everything began small and uncontrolled, then became really big and was hyper controlled by the government, and now its shifting again toward more privatization 2 Constant belief that crime is more out of control than it actually is (except for 1950s-1970s when homicides were very high) 3 Foucault-ian discipline a Technology tends to submit people to its will b Controls are used to manage people C JAMES WILSON (who is now not really followed) 1 Criminals make choices to commit crimes and are accountable for their actions 2 People that commit crimes are largely wicked a Acknowledges that some are not, but proceeds in his argument as if all are 3 Rehabilitation does not work 4 Liberal perspective was blind to victims feelings and rights 5 Attempted to argue that there was no correlation between poverty and the crime rate, also that handouts to the poor increase the crime rate 6 Ignored social conditions that caused crime to rise: a Poor schooling, family breakdown, etc. D GARLAND 1 2 ways of controlling people: a Formal controls (police, etc) b Informal controls (Foucault discipline), run by more private companies (i) May be better at controlling crime, and theyre much cheaper 2 Criminal law is a field without a theory 3 We get used to the way things are and dont see a need for a change in the criminal justice system 4 Urges us to listen to people who dont have someone speaking for them 5 Decline of the rehabilitative ideal, reemergence of just deserts ideals through punitive statements 6 Criminals are seen as predatory, brilliant and wicked 7 Return of the victim with at twist: a Is now a zero sum gain: any niceness given to either side (victim or criminal) must been given to the other side, otherwise it seems unfair 8 Crime control is politicized rather than left to experts 9 The philosophy is that criminals act because they can because there are no social controls preventing them from acting

E SOCIOLOGICAL IMPLICATIONS 1 Who/where you are can depend on if you are charged with a crime 2 Effects in the legal system, job market, and welfare system are all intertwined 3 Fear of crime going up, even as crime rate goes down F CONTEXT 1 Law comes out of context not necessarily from what is logical 2 State v. Manncan a slave be battered by a master no, b/c she can have no other will than the masters will a Came out of what was socially acceptable at the time, not out of law b Today- racism de facto? (i) Have different penalties based on races and areas even if it is not sanctioned by law (ii) When a person from a poorer neighborhood commits a crime his punishment is often more severe than if the same crime is committed in suburbia G PURPOSES OF PUNISHMENT 1 Utilitarianism a Greatest good for the greatest number b If punishment is meant to achieve the optimal level of crime control, it should deter harmful conduct w/o imposing more harm than it prevents c All conduct is harmful that doesnt maximize utility or achieve the greatest social benefit for the least possible cost d Punishment beneficial only to the extent the conduct involved is harmful and punishment can significantly reduce it e Justifications (i) Justify offenses necessary to prevent greater evil (ii) Duty to retreat instead of kill assailant, use of force proportionate to attack f Excuses (i) Excuse wrongful conduct that is difficult to deter (ii) High cost to actor of abstaining from conduct, actors incapacity to discern or act in own best interest 2 Deterrence a Prevent people from committing crime b Specific deterrence (i) Deter particular individual from committing crime c General deterrence (i) Send message to everyone that committing crime is bad (rationale for death penalty) 3 Retribution a Only legitimate reason to punish is that punishment is deserved b/c of responsibility for wrongdoing (i) Wrong conduct violates others rights b Justifications (i) Force justified in defense of any right, defender has no duty to retreat, defense must be necessary to protect right c Excuse 2

(i) Excuse those who cannot be blamed for offense, only excuse offense necessary to thwart attack on another II ELEMENTS OF THE OFFENSE A Act (actus reus) B State of mind (mens rea) C Causal relationship b/w the result and the actus reus/mens rea 1 Surrounding circumstances D Proctor v. State: D in error convicted of keeping a place w/intent and for the purpose of unlawfully selling, bartering, and giving away alcohol a Not an overt illegal act, cannot convict someone of a crime for just their intent to do something, need some kind of overt act III THE CRIMINAL ACT A In general, includes some or all of the following conditions for a just punishment 1 Past, voluntary, wrongful conduct (not just thoughts) specified in advance by statute B VOLUNTARINESS 1 Not responsible under criminal law for involuntary act 2 MPC involuntary acts (have been codified from CL) a Sleep walking b Reflexes c Actions under hypnosis d Automatism (i) Bodily movement that otherwise isnt product of effort or determination of actor, either conscious or habitual 3 Status crimes not voluntary acts, cannot be convicted of being a status (i) Being an addict Robinson: arrested and convicted after police encountered him, observed track marks, and heard him admit to occasional use of narcotics 1. Drug addiction equated w/mental illness, status, so not illegal Powell: D convicted of being drunk in public, argued defense of alcoholism 1. Not convicted here of being an alcoholic, but for being drunk in public 2. Actual conviction was for an act of being drunk in public, can be an alcoholic just need to do it away from the public arena (ii) Conduct and status are close calls Pottinger: homelessness is a status and cannot be punished 1. Homelessness requires certain acts to be done in public, difficult to separate them 4 People v. Newton: D carried firearm on international flight from Bahamas to Luxembourg, plane stopped in NY, charged w/possession of firearm, a NY State Law a Not criminally liable b/c stopping in NY not his voluntary act 5 Martin v. State: drunk, arrested in home, taken onto highway by police, charged w/being drunk in public place 3

a Being drunk in a public place wasnt his voluntary act, was dragged outside after being arrested, not his choice to be taken out 6 People v. Grant: D struck police officer during fight at a bar a D couldnt control his bodily actions b/c was epileptic, actions not a product of his own effort or determination b But seizure was brought on by drinking, which was a voluntary action, so makes automatism an invalid defense 7 If insane, still have physical control over actions, so placed in mental facility a Doesnt take away liability, just punished differently 8 If involuntary, like seizure, not liable, cant be convicted, unless have knowledge that voluntary act like drinking will induce the involuntary action 9 WI intoxication standard (939.42) a Intoxicated or drugged condition of the actor is a defense only if such condition (i) Is involuntarily produced and renders the actor incapable of distinguishing b/w right and wrong in regard to the alleged criminal act at the time the act is committed, or (ii) Negatives the existence of a state of mind essential to the crime (not recklessness) C OMISSIONS 1 No common law duty to prevent harm to another, even if other may lose his life in the absence of assistance, except in cases where there is a duty to act 2 Common Law duties to act a Duty imposed by statute b Special relationship (i) Husband/wife, master/apprentice, etc. c Assumed contractual duty (i) Lifeguard, babysitter, etc. d Voluntary assistance (i) D has a duty to continue to provide aid if a subsequent omission would put V in worse position than if D had not initiated assistance e Creation of the risk f Jones v. US: guardian left in charge of a baby, baby died due to malnutrition (i) The situations listed above are when someone can be held criminally liable for omission g Can be charged w/homicide for common law omission if can prove other elements 3 MPC duties to act a Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: (i) The omission is expressly made sufficient by the law defining the offense; or (ii) A duty to perform the omitted act is otherwise imposed by law 4 WI duties to act (940.34) a Duty to act if (i) Know a crime is being committed (ii) Victim is exposed to bodily harm 4

(iii) Actions include calling the police and providing assistance (iv) Also CL duties (statutory duty, special relationship, assumed contractual duty, voluntary assistance, creation of the risk) Omission to act would be the crime, and the duty to act would be the rule to interpret the crime b No need to comply if (i) Too dangerous (ii) Interfere w/duties owed to others (iii) Assistance already being provided D POSSESSION (as a voluntary act) 1 Statutes require proof that D knowingly procured the property, thus a voluntary act a Not necessary that D own the object in order to possess it b Defense of mistaking 1 object for another will not work 2 CL a Constructive possession (i) Knows the location of the contraband Willful blindness may be equal to knowledge (ii) Has ability to control the contraband (iii) Has intent to exercise control over the contraband Proved by an objective test 3 MPC a If the possessor either knowingly obtained the object or knew he was in control of it for a sufficient period to have been able to terminate possession 4 WI a When D has the object in an area over which he exercises control and D intends to exercise control over the object (drugs in trunk of car) 5 US v. Maldonado: drugs in possession if left unattended in closet that might have belonged to someone else who might have been the intended recipient? a Were secured in Ds room, so D has sufficient power to control the drugs and an intention to exercise that power, and of course knew the location of the drugs 6 Bembenek case: marijuana cigarette found in house of a felon a Mere proximity to contraband not enough to be constructive possession b But her lipstick was found on it, so she was in constructive possession of it 7 Duration a Required length of possession depends on whats being possessed (i) Gun possession for felon different from drug possession (ii) D can shoot gun quickly and easily once in hands, evidence showing that felon held gun is itself a factor indicating he had ability to exercise control 8 Dominion and control over images a Need to prove possession, find out who uses the computer, look for patterns, etc. E LEGALITY & SPECIFICITY 5

1 Person should not be punished unless the conduct at issue was defined as criminal before it took place a CL (i) Criminal statutes must be understandable to reasonable citizens, crafted so as not to delegate basic policy matters to judges/juries, judicial interpretation of ambiguous statutes should be biased in favor of accused (ambiguities in statutes favor the defendantrule of lenity) b Rogers v. Tennessee: D stabbed man in heart, caused cardiac arrest, V didnt die until 15 months later (i) Convicted and affirmed b/c CL year and a day rule not in effect anymore (ii) But, if something wasnt against the law before the passing of this law, cant prosecute someone for committing the act before the law was passed Abolition of the rule would have to be unexpected and unforeseeable c Keeler v. Superior Court: D convicted, but overturned, for intentionally killing a fetus by beating his ex-wife, pregnant by another man, which was mature enough to be viable (i) Question about meaning of human being in the statute Doesnt include viable fetus, its a disconnect in the law, break between fetus and human is viable, which isnt covered by law, so what he did to the fetus was not illegal 2 Law can be vague and standard-less, so cts attempt to make it more specific a Chicago v. Morales: ordinance to attempt to reduce loitering not specific enough to be kept as law (i) Fails to provide the kind of notice that will enable people to understand what conduct it prohibits (ii) May authorize arbitrary and discriminatory enforcement F DUE PROCESS 1 Ex post facto a Cant have something against the law that wasnt against the law when D committed the crime, cant make it worse than when D committed it, like raising misdemeanor to felony 2 Liberty, dignity, and privacy are protected a Not violated unless a law abiding person would still have to guess as to the meaning of the statute after conducting research into the meaning of the law 3 Lawrence v. Texas: two men convicted of sodomy a Parties were as adults to engage in private conduct in the exercise of their liberty under the due process clause 4 Lambert v. California: D convicted of not registering as a felon in CA a Due process clause protects D who was not aware of a duty to register as a felon b She would have no reason to know that she had a duty to do that 5 US v. Hutzell: D convicted of possessing a firearm after had been convicted of DV 6

a No defense thru due process on weapons possession charge where D was previously convicted of domestic battery (i) Even if didnt have notice on it beforehand IV THE GUILTY MIND MENS REA A STRICT LIABILITY 1 No mens rea requirement 2 Retributive limits on criminal law restrict punishment to those who are morally blameworthy 3 Most applicable to public welfare statutes a No intent needed 4 Types a Substantive: liability w/o moral fault b Pure: w/o culpable mental state for any objective element c Impure: w/o culpable mental state for at least 1 objective element 5 MPC a No SL at all, crime must have culpability b Exception to this rule is sex w/a minor (i) Only strict liability crime under MPC 6 Disfavored by courts a Morisette: junk dealer sold bomb casings for profit that he found on USAF land (i) Court reads a culpability requirement into the offense (ii) All elements of the offense include the knowledge requirement (iii) So not guilty b/c didnt know they still belonged to USAF 7 Vicarious strict liability a Even where statute construed to legitimately impose strict liability as a matter of law, legal system can covertly require some level of blameworthiness b US v. Dotterweich: CEO of pharmaceutical co charged w/ misdemeanor of selling misbranded and adulterated drugs (i) When undertake to sell drugs/food to the public, should be aware of whats being sold (ii) For public good, knowledge element not part of law (iii) Everything is your responsibility when youre in charge, must take affirmative duties to protect the public from contaminated food c White collar crime as a way to hold people accountable who weve never seen as criminal before (i) Belief that crime happens in lower levels of society, but there are corporation crimes (ii) Way to deal with that is SL 8 People v. Dillard: loaded gun on bike in public a Offender should know whether the gun is loaded, doesnt matter that he didnt know here b Where society has an interest in placing the burden on the offender B COMMON LAW CATEGORIES OF CULPABILITY 1 Specific intent a Involving a particular mental state provided in the definition of the offense 7

b Requires proof that the actors conscious object, or purpose, is to cause the social harm set out in the definition of the offense c Includes a purpose or knowledge to do some future act, or to achieve some further consequence beyond the conduct or result that constitutes the actus reus of the offense (i) Burglary is specific intent: 1) break into building (act) 2) intent to steal (mind-intent) d Special purpose for committing actus reus (i) Hindering prosecution: 1) providing false information to law enforcement (act) 2) w/purpose to hinder apprehension of D (mindpurpose) e Awareness of special circumstances (i) Receiving stolen property: 1) receiving property 2) knowing (or believing) it is stolen (mind-circumstances) f Often purpose and knowledge levels of MPCs culpability definitions, not reckless or negligent 2 General intent a Actor can be convicted upon proof of any lesser state of mind, such as when he causes the harm recklessly/negligently b General focus on the conduct c Doesnt matter why youre committing the crime (i) Knowingly destroying a fire alarm 3 Regina v. Faulkner: theft of rum, lit match, started whole ship on fire a Had intent to steal the rum, but not to start the fire, so not guilty for that b Just b/c guilty of 1 crime doesnt mean guilty of every crime that might be causally related C MPC CATEGORIES OF CULPABILITY 1 Specified by statutes 2 Circumstances = everything around the situation outside of conduct 3 Result = what happens 4 Conduct = narrow acts of the actor 5 Purpose a Conduct: conscious object to engage in conduct that will cause the result b Circumstances: aware of circumstances or hope they exist c D aims and fires gun at V 6 Knowing a Conduct: aware his conduct is practically certain to cause the result b Circumstances: aware circumstances exist c Willful blindness = knowingly (i) Knowledge is established if he is aware of a high probability of the attendant circumstances existence, unless he actually believes that it does not exist (ii) Cant just decide to be oblivious to an obvious fact of some kind of crime occurring, aware of high probability a material fact exists d D shoots into crowd, kills V 7 Reckless a Conduct: consciously disregards substantial and unjustifiable risk that a material element of the crime will result from his conduct 8

b Circumstances: consciously disregards substantial and unjustified risk that circumstances exist or will exist c Substantial and unjustifiable = gross deviation from reasonable standard of care d Intoxication not a defense e D drunk and fires randomly at windows killing V inside 8 Negligent a Conduct: should be aware of substantial and unjustified risk that material element will result from conduct b Circumstances: should be aware of substantial and unjustified risk that elements exist c D pushes gun off table to make room, gun goes off, killing V 9 If statute is silent on a culpability requirement, default to recklessness 10 Only strict liability crime is rape of minor D WI CATEGORIES OF CULPABILITY 1 Criminal intent (highest level) a Intentionally or knowingly/believe used in statutes language b Conduct: purpose to do conduct c Result: purpose to cause result or is aware result is almost certain d Circumstances: knows circumstances required in statute exist 2 Aggravated recklessness/Depraved mind (objective test) a Reckless behavior w/ utter disregard for human life b Usually involves deadly instrument c Used in 1st Degree Reckless Homicide, Reckless Injury, Recklessly Endangering Safety only 3 Criminal recklessness (subjective test) a Conduct: creates an unreasonable and unjustified risk of death or bodily injury and is subjectively aware of this risk b Result: highly likely to occur c Intoxication not a defense 4 Criminal negligence (objective test) a Ordinary negligence to HIGH degree b Actor should realize conduct creates substantial and unjustifiable risk of death or bodily injury 5 No default to recklessness 6 Assume strict liability if no mental element set forth in statute E MISTAKE as a defense to criminal liability 1 Determine required mental state of crime, then determine whether mistake negates it 2 Mistake of fact (I thought it was sugar, not cocaine) a Mistake is a defense if it negates the mental state required to establish any element of the offense. b Exception (i) Not available if the actor would be guilty of another offense had the circumstances been as he supposed mistake defense will reduce the degree of the offense to that which D believed he was committing c CL (i) Specific intent Any reasonable or unreasonable mistake (objective or subjective) 9

Negates the specific intent required for the crime (all essential elements of crime) Not necessarily the act, may be the 2nd part of the statute, the mental element (ii) General intent Any reasonable mistake (objective standard) Shows D didnt have the culpable mental state Cannot be unreasonable b/c it still shows a culpable mental state Moral wrong doctrine/evil will 1. May have made a reasonable mistake, but moral consequences negate the possibility of the defense Willfully 1. D had knowledge of a duty, unless they willfully ignored that duty they didnt break the law (Cheek v. US) D stopped filing tax returns b/c was indoctrinated by a group of anti-tax people and sincerely believed that tax laws were unconstitutional Knew about the laws, but chose not to follow them, willfully didnt file his tax return and didnt pay income taxes d MPC (i) If no mens rea is stated, then D is guilty if he acts recklessly, knowingly, or purposefully to each element, regardless of mistake (ii) If D was negligent regarding the risk of which he was mistaken, D not guilty Unless it was a negligent crime MPC Purposeful Knowing Reckless (aware of risk) Negligent (unaware of risk) Strict liability CL Specific intent General intent Type of mistake Any mistake Any mistake Negligent/faultless (reasonable) mistake Faultless (reasonable) mistake N/A

e WI (Jury Instruction 770Mistake, 939.43) Honest mistake of fact is exculpatory if it negates the mens rea requirement No mistake defense to negligence 3 Mistake of law a Generally, ignorance of the law is no excuse b Lack mental state b/c unaware of duty, so D hasnt committed all elements of crime c Intended actions, meets elements of crime, but says didnt know it was against the law, not a defense d Exceptions 10

(i) CL & MPC Fair notice: if no fair notice of law, and knowledge of law is not presumed, there is a violation of due process 1. Lambert: failure of a felon to register b/c she didnt know she had to under the law 2. MPC D doesnt know about the law, law not published/otherwise available Reasonable reliance: if rely on official statement of the law where D made a bona fide effort to conform to the law 1. Official statements Statute later declared invalid Judicial decision later declared error Official, but erroneous, interpretation of law from official in charge of administering, enforcing, or interpreting law (must be officially relayed; not a quick statement 2. Advice from personal attorney doesnt generally count 3. Except Long v. State: Ignorance and consultation with personal attorney not available in every state, but here D actively sought legal advice and followed thru with that legal advice Ignorance of law negating mens rea 1. Mistake of law related to non-governing law (meaning criminal law) can be a defense to a specific intent crime if it negates the specific intent mens rea 2. Getting divorce in Delaware and remarried in MD, but MD still recognizes 1st marriage, may not be guilty of bigamy getting married w/intent to marry 2+ women (mistake about divorce law) 3. But MPC cannot be mistake of what the criminal law says (ii) WI Honest mistake of law, but not criminal law, is a defense if it negates the mens rea requirement Mistake must be reasonable D asks DA in open manner and relies on it, thats a defense V CAUSATION A ELEMENTS OF ACTUS REUS, act must cause social harm 1 Applies to result crimes, like homicide, arson, etc. 2 MPC and CL the same until proximate cause B COMMON LAW 1 But-for causation a Cause necessary for result, but insufficient by itself for conviction b But for Ds conduct, the harm wouldnt have occurred (i) Violent acts cause v. condition Condition: normal events (V has a heart condition) Cause: abnormal, unlawful act by D; and the natural and probable consequences of Ds actions Hubbard: not guilty for guards heart attack in jail brawl b/c there was a preexisting condition in V, and D didnt even touch V 11

(ii) Concurrent sufficient causes Issues arise when more than 1 party can be the but for cause Dyos: brick in the head brawl: no but for causation can be proven b/c cant be sure from which impact the death occurred Substantial factor test: Ds conduct must be a substantial factor in producing death (iii) Multiple causes D1 intentionally shoots V in the stomach, and V would have died from that wound w/in 1 hour. Simultaneously and independently, D2 intentionally shoots V in the stomach, and V would have died from that w/in an hour too. But, b/c of the two, V dies w/in 5 minutes. 1. Both actors are actual causes of Vs death 2. Must decide whether, but for Ds voluntary act, the harm would have occurred when it did 2 Proximate cause legal cause a Foreseeability (i) Negligent acts criminal only if D should have seen what was done would cause given result b Direct cause (i) No question about what the cause of death was, direct cause is proximate cause (ii) No event of causal significance intervened b/w Ds conduct and the social harm (iii) Root car racing case: D not directly responsible for the death of the decedent, decedent chose to swerve his car into the other lane to pass D c Intervening events (i) If D starts a chain of events that leads to Vs death, D is cause of death despite intervening actions (ii) Hamilton: V pulls out tubes in hospital, there b/c of Ds actions, V dies If a person strikes another and inflicts a blow that may not be mortal in and of itself but starts a chain of causation that leads to Vs death, then D guilty, even if V contributes to his own death or hastens it by failing to take proper treatment (iii) If intervening act is independent of Ds conduct (not foreseeable), breaks the chain If factor would have come into play in absence of actors conduct, D not responsible for an independent intervening cause unless occurrence was foreseeable to reasonable person in Ds situation Must be superseding cause of result to relieve D of liability But Wassil: D bought drugs for himself and V, V died b/c of overdose injecting drugs not an intervening event relieving D of liability when D provided the drugs (iv) If dependent on Ds criminal conduct (if foreseeable), chain not broken Occurs in response to Ds earlier action 12

Generally, D responsible for dependent intervening cause unless act was unforeseeable Stephenson: KKK D abducted V, V took poison due to the situation she was in, died eventually b/c of it, evidence was sufficient to find that D rendered V mentally irresponsible by his actions, her actions were foreseeable, so D guilty of her death (v) Medical mistreatment/refusal to accept medical aid Refusal of V to receive life saving care is no defense if Ds action would otherwise not cause death 1. Where V is a Jehovahs witness and cannot have a blood transfusion due to religious beliefs, D held liable for Vs death even tho the injury wouldnt have been fatal w/the transfusion Negligent medical treatment 1. General negligence not an intervening factor 2. Gross negligence can be, lowering charge against D d Temporal gap (i) Too much time may make causation difficult e Take V as we find him (i) If have head as easily crushable as an eggshell, and D pushes V into wall cracking the skull and causing death, can be found guilty (ii) Must have required mens rea f Duties omissions (i) Where there is a legal duty that is omitted and omission is the immediate cause of death, D may be liable (ii) Not often (iii) Beardsley: mistress dies after taking morphine due to his behavior, he doesnt help her No duty to his mistress C MPC 1 Actual cause a 2.03: When conduct is but for cause (i) If purpose or knowing: D aware that result substantially more probable to happen by his conduct Not too remote/accidental (ii) If reckless/negligent: D aware that act may cause risk that they are, or should be, aware of (iii) When SL, the result must be a probable consequence 2 Proximate cause doesnt exist a But for cause as exclusive means of causation b Whether the actor caused the prohibited result with the level of culpability required by definition of offense (i) Doesnt matter if D was proximate cause, just whether D caused the result w/the appropriate mens rea c Causation not established unless actual result (including the way in which it occurred) is a probable consequence of the actors conduct (foreseeability issue) 3 Apply statute and requisite mens rea to facts of case, breakdown elements and go thru each one D WI 13

1 Substantial Factor Test used to determine proximate causation a Ds act must be substantial factor in causing result (i) Can be more than one substantial factor b * Hint for EXAM: Consider that WI may adopt MPC or CL provisions, so include them in your analysis!* E TRANSFERRED INTENT 1 MPC and WI: transferred intent works VI BURDENS OF PROOF A Burden of production 1 Either party must produce at least some prima facie evidence in order to compel the fact finder to consider a claim/charge 2 D may have to show at least some kind of evidence of possible provocation or whatever, then P has to disprove it B Persuasion 1 Duty to persuade fact-finder that totality of evidence presented warrants accepting/rejecting claim C Presumptions 1 Winship: requires prosecution to prove every element BARD 2 Mulaney: statute was wrong b/c didnt require prosecution to prove all elements a P has duty to prove BARD elements of a killing, but presumption included that relieved P from proving all elements, which violated Winship 3 Patterson: P still had to prove all elements of crime, just moved what was wrong in Mulaney to affirmative defense of EED, which D then had to prove 4 Mandatory presumptions are always what pose the problem a If takes away prosecutors need to prove something, = unconstitutional b If make it an affirmative defense, not unconstitutional VII HOMICIDE A Introduction/in general 1 Human life a Beginning (i) CL originally didnt recognize fetuses as human beings (ii) In some jurisdictions, has been broadened to include fetus as human being b End (i) CL originally thought it was complete stoppage of circulatory and respiratory systems (ii) Today, broadened to brain death 2 Year and a day rule a CL originally provided that D may not be prosecuted for criminal homicide unless V dies w/in a year and a day of the act inflicting the fatal injury b Today, rules not accepted in most jurisdictions 3 Intent to kill a Natural/probable consequences rule 14

(i) When probable (foreseeable) consequence of Ds conduct is that another person will die, the jury can infer the requisite specific intent b Deadly weapon rule (i) When D uses a deadly weapon directed at a vital part of the human body, intention to kill may properly be inferred (ii) More focused natural/probable consequences rule B COMMON LAW 1 Focuses on the actor 2 Murder a Killing a person w/malice aforethought (i) Purpose to cause death; or Watson: D shoots cop in chest while straddling on top of him and grabbing cops gun, cop had begged for his life, or at least for D to stop 1. Premeditated murder (premeditation and/or intent) can occur in an instant and can be inferred from the circumstances (ii) Intent to inflict serious bodily harm; or (iii) Extreme recklessness w/respect to anothers life (depraved heart) Conscious disregard of a substantial and unjustifiable risk to human life Can be raised to be murder if have exceptional level of recklessness (Mays v. The People) 1. When an action, unlawful in itself, is done w/deliberation and w/intention of mischief or great bodily harm, or of mischief indiscriminately, and death ensue, against or beside the original intention of the party, it will be murder 2. D acts solely from general malicious recklessness, disregarding any and all consequences, sufficient that he manifested a reckless, murderous disposition 3 Manslaughter a Voluntary manslaughter (i) Intentional but w/o malice Heat of passion, adequate provocation, D didnt stop to think about what he was doing Walker: D cuts Vs throat after V had threatened them with a knife for not gambling with him 1. Killing in excited, irrational state is manslaughter b Involuntary manslaughter (i) Homicide committed in negligent manner (ii) Unintentional killing, but with some culpability (iii) Williams: failure to exercise the ordinary caution necessary to make out the defense of excusable homicide, guilty of ordinary negligence b/c of failure to use ordinary caution c Subjective and objective (i) Knowing the facts that would cause a reasonable man to know the danger is equivalent to knowing the danger C MPC 1 Murder 15

a D purposefully or knowingly takes a life w/o mitigating circumstances (i) Actor must subjectively intend death or know death is almost certain to result from his actions b Extreme recklessness (i) Showing extreme indifference (ii) Depraved heart 2 Manslaughter a Recklessly kill another b P, K, Extreme Recklessness, homicide mitigated by extreme emotional disturbance based on reasonable excuse (i) Objective: reasonable person standard (ii) Subjective: reasonableness of the explanation or excuse is determined from the viewpoint of a person in the actors situation, under those circumstances as he believes them to be c Similar to heat of passion in CL, but no limit on what is provocation, just need to negate mens rea d Levesque: where ones actions create a life-threatening risk to another, theres a duty to take reasonable steps to alleviate the risk 3 Negligent homicide a Similar to involuntary manslaughter in CL (i) Welansky: grave danger to others must have been apparent when blocked/locked the fire doors, D chose to run the risk of danger instead of altering his conduct to attempt to avoid the act or omission that caused the harm (ii) Should have been aware of the risk D WI 1 1st degree intentional homicide a Causes death of another with intent to kill that person or another (i) Mental purpose to take the life of another human being (ii) Or was practically certain his conduct would cause death Directly or indirectly from the facts Consider statements or conduct (iii) w/o adequate provocation Something D reasonably believed the intended V had done Complete loss of self-control in an ordinary person Mitigated to 2nd degree if has adequate provocation (iv) Intent can be formed in an instant, judged by the objective standard What a person of ordinary intelligence and prudence would have believed in the position of D under the circumstances existing at the time of the alleged offense nd 2 2 degree intentional homicide a Causes the death of another w/the intent to kill that person or another b No showing that there was not adequate provocation c 1st degree mitigated to this if one of the following is present (i) Adequate provocation (ii) Unnecessary defensive force (iii) Prevention of felony (iv) Unreasonable belief force necessary to stop felony 16

(v) Coercion, necessity 3 1 degree reckless homicide a Recklessly causes the death of another under circumstances showing utter disregard for human life b Causes the death of another under any of the following circumstances (i) Makes, distributes, delivers illegal drugs that another uses and dies (ii) Delivery doesnt have to be direct nd 4 2 degree reckless homicide a Recklessly causes the death of another E LIMITATIONS on felony murder rules 1 IL v. Hickman: Where D sets in motion the chain of events leading to death, hold D responsible for the killing 2 CA v. Washington: killing committed by 3d person not attributable to robber a Not enough that killing is just a risk, need to show intent to robber himself 3 WI v. Oimen: if have intent for predicate offense, then felony murder is SL offense and need not be foreseeable 4 Gladman: asportation issue a Flight/escape from scene 15 minutes later is unclear, might now work as felony murder b Continuation of asportation phase, so felony still continuing F FELONY MURDER 1 CL a Guilty of murder if D kills during commission or attempted commission of a felony (i) Usually felonies dangerous to human life (arson, robbery, rape, burglary) (ii) Usually does not apply if an adversary to the crime, rather than a felon, personally commits the homicidal act (iii) When felon kills innocent person, co-felons also responsible for the shooting (iv) Felons attempt to commit a forcible felony sets in motion a chain of events which were or should have been in his contemplation when the motion was initiated, felon should be held responsible for any death which results from the sequence b Intent to commit felony transferred to death of V c Strict liability offense, so may serve as deterrent against violent crime d Martin: need a homicidal intent along with the commission of the felony (i) Ct should instruct the jury that D, whether a sole actor or an accomplice, is liable for felony murder only if the death is not too remote, accidental in its occurrence, or too dependent on another's volitional act to have a just bearing on D's culpability 2 MPC a Not proponent of SL offenses, so not real felony murder rule here (i) Extreme recklessness can be presumed in the commission, attempt to, or flight from commission of a felony (ii) Murder for any death, even complete accident occurring in course of commission or flight from a felony
st

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(iii) Accomplices to felony as accomplices to murder 3 WI (940.03) a Cause the death of another while committing or attempting to commit armed robbery, armed burglary, arson, 1st deg. sex. assault, etc. (i) Still uses WI proximate cause substantial factor test b Includes flight from felony c Applies to accomplices if participating in felony and when V shoots cofelons d Oimen: V shot a co-felon as O was driving off w/o others in the getaway car (i) Strict liability offense, doesnt require any mental element except to the predicate offense (ii) Need not be foreseeable G VEHICULAR HOMICIDE 1 Less severe than involuntary manslaughter or negligent homicide for those who accidentally kill while operating a vehicle (MPC 210.4) H MURDEROUS ANIMALS 1 Life endangered conduct only done w/awareness that conduct is contrary to laws of society 2 Sufficient to prove could reasonably foresee the animals could attack/injure someone 3 CL Could be intent to do serious bodily injury to substitute for intent to kill, but w/MPC there must be intent to kill I ASSISTED SUICIDE 1 Active participation in final overt act is murder 2 Just participating in events leading up to it is assisted suicide VIII PROVOCATION A CL PROVOCATION 1 Elements a Acted in heat of passion b Adequate provocation c Actor didnt have reasonable opportunity to cool off d Causal connection b/w first 3 2 Mitigates murder to voluntary manslaughter (not exoneration) 3 Objective a Cause a reasonable man to lose control b Fraley: 9 mos after incident, D shoots V and kills him (i) A reasonable person would have cooled off in 9 months 4 Subjective a Actor acts in heat of passion (i) Rage, fear, strong emotion obscuring reason b D did lose control 5 Need subjective and objective prong to prove it existed 6 Rowland: D walked in on wife with V adulterer, fired gun at adulterer and killed wife a Adultery = adequate provocation 7 Cumulative a Some cts rule that no cumulative provocation exists 18

b Is cumulative effect, so cooling time wont start until last provocative event 8 Theories of mitigation to manslaughter a Partial justification (i) Excessive reaction to a plausible reason for force (ii) Not justified, but not murder b Partial excuse (i) Recognition that D was so enraged at time that his actions were not as voluntary B MPC PROVOCATION (210.3) 1 Extreme emotional disturbance a D must show that EED existed, prosecution has to persuade that didnt exist b Determined as reasonable from actors point of view c Viewpoint of a person in the actors situation under the circumstances as he believes them to be (i) Account for age, sex, physical disability, etc. d Just needs to negate mens rea, no limit on what is provocation (i) Specific provocative act not required to trigger the EED defense, need not involve an injury, affront, or other provocative act perpetrated upon D by decedent (ii) Doesnt have to be something V did e No cooling off time 2 Mitigates murder to manslaughter 3 Berry: D strangles V after she taunts him for weeks about her other lover in Israel a This constitutes extreme emotional disturbance, D should be convicted of manslaughter b Long course of provocation reached its final culmination in the apartment when V began screaming, D was in heat of passion under an uncontrollable rage C WI PROVOCATION ( 939.44) 1 Adequate = must cause complete loss of self control in ordinary person under the circumstances 2 Provocation = something which D reasonably believes intended V has done which causes D to lack self control completely at the time of causing death 3 Only mitigates 1st degree homicide to 2nd degree homicide 4 D has to raise the provocation defense, some evidence to support that circumstance, burden on prosecution to disprove the provocation IX USE OF DEFENSIVE FORCE A COMMON LAW 1 Justification v. excuse a Justification (i) Complete defense, D did no wrong Must be reasonable belief about need for deadly force Focus on circumstances and actions Subjective and objective elements, what actor was thinking and what a reasonable person would have been thinking 19

b Excuse (i) D not responsible for crime committed (ii) Focus on actor, like insanity or incompetence (iii) Can be a complete defense 2 Self defense a Justification b Elements (i) Imminent attack (ii) Response necessary and proportional (iii) Goal is to thwart attack c La Voie: D reasonably in fear for safety may use deadly self defense d Gleghorn: aggressor rule: original aggressor cannot claim self-defense unless remove and inform e Leidholm: battered spouse, may be defense based on subjective belief f Goetz: subjective and objective belief, if unreasonable, may mitigate murder to manslaughter g Duty to retreat (i) If can safely retreat, then use of force isnt necessary (ii) Not required to retreat from home/place of business (iii) Only exists in some jurisdictions 3 Law enforcement a Garner: cannot use deadly force to stop misdemeanor suspect from fleeing, especially if have no indication that D has a gun 4 Defense of others a Must be family, marriage, employment b Only amount of force the aggressor used B MPC 1 D held to mental state a Subjective belief, what D thought was true, that force is immediately necessary 2 D must attempt to retreat 3 Aggressor rule applies C WI 1 D may use reasonable force when: a Reasonably believe unlawful attack b Necessary and proportional response (i) Deadly only if threat of imminent death/injury 2 D required to attempt to retreat 3 Aggressor rule applies 4 Defense of others a Can defend anyone (goes along w/WIs duty to act) b Only amount of force the aggressor used X INSANITY A CLASH OF LEGAL/MEDICAL PROFESSIONALS 1 Blame vs. healing 2 3 ways of looking at mental problems a Disease (i) Brain chemistry 20

E F

b Dimension (i) Axes and characteristics that put us on those axes c Psychological explanation (i) Determinist viewpoint, like Freud, old-school psych stuff (ii) Ignores blame MPC 1 ALI test a D must suffer mental disease or defect that renders D (i) Unable to appreciate right from wrong; OR (ii) Unable to conform conduct to the law 2 Burden on the state to disprove insanity BARD FEDERAL LAW 1 Modified ALI test a D must suffer mental disease or defect that renders D unable to appreciate right from wrong b Not concerned with whether D was able to conform his conduct to the law 2 Burden on D to prove not guilty by reason of insanity by clear and convincing evidence WI (971.15) 1 ALI test w/shifted burden a Bifurcated, guilt then insanity phases b D must suffer mental disease or defect that renders D (i) Unable to appreciate right from wrong; OR (ii) Unable to conform conduct to the law 2 Burden on D to prove not guilty by reason of insanity by preponderance of the evidence COMPETENCY TO STAND TRIAL 1 Focuses on Ds ability to assist in his own defense 2 He must be competent to stand trial in order to be tried for criminal conduct Jeffrey Dahmer found sane, couldnt prove that he was insane 1 P claims a D doesnt suffer from mental disease b If he does have one, should have been able to conform his behavior to that required by law (i) Showed control, planning, knew what he was doing was wrong by the way he did it 2 D claims a Mental disease of paraphilia of necrophilia (i) Sexual obsession, love of death (ii) Completely compliant partner b Couldnt conform his behavior to that required by law, couldnt help himself 3 Evidence a Eliminated evidence of the murders (i) Selection of Vs Street hustlers/gay prostitutes Had been kicked out of their own homes, had nowhere to go and no one to watch out for them 21

 Had no one with them, were alone at the bars (ii) Getting rid of bodies Carve them up, triple bagged in garbage bags, put in dumpster right before it was collected, otherwise animals would come, or would soak them in acid and flush it down the toilet Preserved some body parts by boiling them in preserving fluid (iii) Making it difficult to trace him when he went home Only left at end of evening with them Didnt use his own name, didnt talk to many people Took cabs and had them drop him off 4-5 blocks away from his home b Could only do what he did when he was drunk c Waited until he got them back to his place (i) Tried to do things in bathhouse or hotel, but was too messy, people would have suspected something XI ATTEMPT A CL 1 Specific intent crime, even if the target offense is a general intent crime 2 Conduct a Proximity test (i) Attempt does not arise unless an actor has it w/in her power to complete the crime almost immediately (ii) Look at how close Ds conduct is to completing the crime Must go beyond preparation Requires overt act Where D shoots at someone and the gun doesnt work or D misses b Abandonment traditionally not a defense (i) Today, applies only if D voluntarily and completely renounces criminal purpose Voluntary = when result of repentance or a genuine change of heart 1. Not voluntary if D motivated by circumstance that might increase the likelihood of arrest or unsuccessful consummation of the offense Complete: not if the actor merely postpones the criminal endeavor until a better opportunity presents itself 3 Circumstances a Legal impossibility as a defense (i) Circumstances must make it legally impossible to commit the offense b Booth: cannot attempt to receive stolen property if property is not actually stolen c Hybrid legal impossibility (i) Ds goal is illegal, but commission of the offense is impossible due to a factual mistake regarding the legal status of some attendant circumstance that constitutes an element of the charged offense 4 Mens rea 22

a Must have 2 intentions: (i) Intent to do overt act in furtherance of a crime, and (ii) Intent to commit the actual crime b Cannot attempt felony murder (i) Attempted murder requires specific intent to kill; Ds intent to commit a felony doesnt substitute for the intent to kill (ii) Even if a person by committing a felony acts recklessly, illogical to say that D intended to kill V by being reckless (for below too) c Lyerla: cannot attempt a reckless or negligent crime (i) So no involuntary manslaughter b/c no intent to kill, cant intend to commit unintentional crime 5 Grading a Historically, attempts are misdemeanors b Today, attempt to commit felony = felony, but lesser than actual crime, often punished at 50% B MPC 1 Conduct a Substantial step test: ( 5.01) (subjective test) (i) Under the circumstances, does Ds conduct strongly corroborate the criminal intent (ii) Examples of substantial steps Lying in wait or following V Enticing V Reconnaissance of location Unlawful entry Possession of unlawful materials under the circumstances Soliciting an innocent agent to engage in crime b Limited abandonment defense allowed if its complete and voluntary (i) Renunciation of criminal purpose (ii) Not guilty if: D abandons effort to commit the crime or prevents it from being committed, and Ds conduct manifests a complete and voluntary renunciation of her criminal purpose 1. Similar to CL here 2 Circumstances a No impossibility defense (i) D guilty if she purposely engaged in conduct that would constitute a crime if the attendant circumstances were as D believes them to be b Is pure legal impossibility defense? (i) Not going to charge you w/crime if you didnt actually commit a crime 3 Mens rea a Must be Ds purpose to commit the crime (i) Although the mens rea of purpose or belief does not necessarily encompass the attendant circumstances of the crime Here, sufficient that the actor possesses the degree of culpability required to commit the target offense b Allows knowingly if considering result 23

4 Grading a Punishes attempt at same level as target offense b Except felony in 1st degree becomes attempted felony in 2d degree C WI 1 Conduct a Unequivocality/probable desistence test (b/w CLs proximity and MPCs substantial step tests) (i) Ds conduct, standing alone, unambiguously manifests the intent to commit a crime (ii) Looking at frames of a movie: the next frame is D committing the act (iii) Looking at Ds conduct, can we say that the conduct indicates BARD that D is going to commit the crime or is unlikely to desist from committing the crime (iv) If equivocal, if can go either way, then havent met the test b If shoot a gun that doesnt work, under CL not guilty, under MPC and WI b/c only reason it didnt work was b/c the gun didnt work c Abandonment (i) P must first establish that there unequivocally was an attempt (ii) Reason for abandonment cannot be an extraneous factor, not voluntary 2 Circumstances a No impossibility defense, look at Ds subjective mind b Subjectively, still goes to mind and what you wanted the circumstance to be 3 Mens rea a Intent to perform the act b Intent to commit the crime 4 Grading a 50% of punishment for target crimes b Exception: child sex crimesstatutes spell out actions and punishment for attempt XII COMPLICITY A GENERAL CONCEPT 1 Complicity is not a distinct crime, but a way to commit a crime 2 Not necessary that another person be found guilty of the offense a Can find accessories guilty when dont have perp 3 Accomplice can be guilty even if perp is excused unless the accomplice can come up w/an excuse as well a Accomplice can be liable for more serious crime than would the perp B COMMON LAW 1 Act a Must knowingly and actually assist the perp in the commission of an offense b Can be minimal assistance, as long as not just a bystander (i) Perp must know about abetting/encouraging (ii) Does not have to know about accomplices actual aid c Any aid, no matter how trivial, suffices (i) Even if aid was causally unnecessary to commit the crime 24

2 3

4 5 6

d Types (i) Physical conduct (procuring, driving getaway car) (ii) Psychological influence (advising/encouraging) (iii) Omission (if have a duty to act) Accomplice liable for natural and probable consequences of perps action in committing the offense Mens rea a Intent to assist the primary party to engage in the conduct that forms the basis of the offense; and b Mental state required for commission of the offense, provided in statutory definition c As to accomplices conduct: knowledge of perpetrators criminal purpose (i) Know what perp is going to do (ii) Know what accomplice is doing by aiding perp d As to target offense: must have purpose of committing, encouraging, or facilitation of the offense (i) Accomplice has purpose of transaction that 2d party would sell to 3d party, but did not have explicit purpose that 3d person would sell to 4th person (ii) Except from Backun ct Decided on knowledgeif I sell a gun to someone whom I know wants to commit murder, I cant wash my hands b/c I dont have purpose that murder occur e As long as accomplice acts w/the purpose of assisting perp in the conduct that constitutes the offense (and has the level of culpability required as to the prohibited result) he should be deemed an accomplice if his culpability as to the attendant circumstances would be sufficient to convict him as a principal (i) Mens rea policies regarding the substantive offense should control the accomplices situation f Liability for crimes of recklessness/negligence (i) Accomplice liability allowed as long as the accomplice has the 2 mental states described above: intent to assist perp to engage in the conduct that forms the basis for the offense and the mental state required for the commission of the substantive offense Historically, principal needed to be convicted before an accomplice a Not true anymore Punishment a Can be same as principal or for lesser offense b Accomplice can be charged w/greater offense in certain instances Defenses a Abandonment defense allowable (i) Spontaneous and unannounced w/drawal will not suffice (ii) Accomplice must communicate w/drawal to perp and make efforts to neutralize the effect of his prior assistance b P acquitted b/c actions were justified, S should also be acquitted in absence of wrongdoing by P, no crime to impute to S 25

c P acquitted b/c of excuse (insanity, duress, etc.), that wont bar conviction for S who does not have that excuse (excuses are always personal to the actor) 7 Attempt to aid a Where do nothing is not enough, must be some overt act or agreement to aid for there to be attempt to aid b In most cases, accomplice is a co-conspirator and a co-conspirator is an accomplice C MPC 1 Conduct a Aid/agree to aid/attempt to aid perp in planning/committing the offense; or (i) Perp does not need to know if the accessory gives actual aid or attempts to aid Perp does need knowledge of accessorys encouragement Un-communicated attempt to aid qualifies as complicity Liable for aiding even if accessory does not fulfill promise of agreement to aid b Solicits another to commit the crime; or c Has legal duty to prevent offense but chooses not to act 2 Mens rea a As to accomplices conduct: knowledge, know of perps criminal intent (i) For conduct elements and result elements of the crime b As to the target offense (i) Conduct elements: accomplice has purpose of promoting or facilitating the offense (ii) Result elements: whatever culpability level required for criminal liability according to elements of the crime Must act w/culpability required for result of crime, usually the same as the perps Dont elevate mental state to purpose for result crimes under MPC Participating in a crime as a feigned accomplice to entrap the perp is not complicity 3 No natural and probable consequences doctrine a Focus on actors own mental culpability b Cannot prove that accomplice intended for something that may have been foreseeable or not down the road 4 Perp need not be convicted/charged w/same crime a Accessory can be held liable w/an innocent/insane perp b/c only need subjective mens rea of accessory 5 Victim cannot be accomplice 6 Abandonment defense exists a Must first neutralize his assistance, give timely warning to the police of the impending offense, or attempt to prevent the commission of the crime 7 Attempt to aid a D may be convicted of a criminal attempt although a crime was neither committed nor attempted by another if: 26

(i) The purpose of Ds conduct is to aid another in the commission of the offense, and (ii) Such assistance would have made her an accomplice in the commission of the crime under the complicity statute if the offense had been committed or attempted D WI 1 Conduct a Knowingly aid/abet in commission of the crime b Is ready and willing to assist and perp knows D is willing to assist 2 Mens rea a As to accomplices conduct: knowledge, know of perps criminal intent b As to target offense: knowledge for aiding/abetting, purpose for conspiracy c Difficulty is that case law says knowledge, when JI says purpose 3 Perp needs to know that accessory is aiding perp a Un-communicated attempt to aid is not being an accomplice b Attempt where do nothing is not enough, must be some overt act or agreement to aid for there to be attempt to aid 4 Natural and probable consequences of intended crime a In light of ordinary experience, the result is expected (not extraordinary nor surprising) b Probability that 1 crime will result from another is: (i) Judged by facts and circumstances known to accessory at the time the events occurred c Can find accessory guilty if accessory knew, or reasonable person in accessorys position would have known, that the crime charged was likely to result from commission of the intended crime 5 Abandonment exists in WI XIII CONSPIRACY A ELEMENTS 1 1+ conspirators must have committed a crime 2 2+ conspirators must have agreed to commit a crime 3 Parties must have intended as the object of their agreement the commission of an unlawful act a Must be a purpose standard, not enough to have knowing b Substantive crime 4 Different from aiding/abetting a Can aid/abet w/o ever having an agreement b Need agreement for conspiracy

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Complicity Act Perp knows about aid Perp knows about abet Common law Knowingly/actually assist perp No Yes MPC Aid/agree to aid/attempt to aid perp in planning/committing offense No Yes (Or solicit another or omit to act when have duty) Knowledge of perps criminal intent Conduct: Purpose of promote/facilitate Result: culpability level required according to statute Not liable WI Knowingly aid/abet in commission of crime Yes Yes

Mens rea Intent to assist perp As to Knowledge of perps criminal accomplices acts purpose As to target Purpose of offense committing/encouraging/facilit ating crime Natl/prob. conseq. Punishment Abandonment? Attempt to aid Liable

Knowledge of perps criminal intent Knowledge for aiding/abetting, purpose for conspiracy Liable

Can be same as perp, could be Can be different than perp more Yes if communicate and Yes if neutralize/prevent neutralize Must be some overt Yes if purpose to aid another act/agreement to aid in commission of offense and that assistance would have made her an accomplice in the commission of the crime under the complicity statute if the offense had been committed/attempted

Yes (probably if neutralize/prevent) Must be some overt act/agreement to aid

Attempt Conduct Abandonment? Common law Proximity testD has w/in power to complete crime almost immediately Beyond prep, overt act Traditionally, no. Now yes if voluntary/complete renunciation Yes, circumstances must make it legally impossible to commit the offense Intent to do overt act in furtherance of crime Intent to commit actual crime No attempts for felony murder/reck./neg. crimes Historically misdemeanors, now 50% MPC Substantial step testDs conduct strongly corroborates criminal intent Lying in wait, enticement, recon work Yes if complete/voluntary No. Purposely engage in conduct that constitutes a crime if the circumstances are as D believes them to be Ds purpose to commit the crime WI Unequivocality testDs conduct, standing alone, unambiguously manifests intent to commit the crime Yes if reason for it is not an extraneous factor (must be voluntary) No

Circumstances (Impossibility?) Mens rea

Intent to perform the act Intent to commit the crime

Grading

Same level as completed crime

Punished at 50%

Causation Causes needed Common law But for causew/o Ds conduct, result wouldnt have occurred, Ds conduct must be substantial factor in producing result Proximate causeno event of causal significance intervened MPC But for causeactual result and the way it occurred is a probable consequence of Ds conduct, must be foreseeable to D WI But for causeDs act must be substantial factor in causing result (can have 1+ substantial factors

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Intervening factors

Medical mistreatment

b/w Ds conduct and the result D not responsible for unforeseen (to reasonable person in Ds situation) independent intervening causes General negligence not intervening Gross negligence is intervening

May adopt this provision

May adopt this provision

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Insanity ALI test? Federal law Modifiedno concern w/whether D was able to conform conduct to the law MPC D must suffer mental disease/defect that renders D unable to appreciate right from wrong OR unable to conform Ds conduct to the law On D to prove insanity by clear On state to disprove insanity and convincing evidence BARD WI D must suffer mental disease/defect that renders D unable to appreciate right from wrong OR unable to conform Ds conduct to the law On D to prove insanity by preponderance of the evidence

Burden on whom?

Defensive force Elements Common law Imminent attack, response necessary and proportional, goal to thwart attack Yes, but not from home/business Yes MPC D held to mental state of what D thought was true about immediacy and necessity of force Yes Yes WI Reasonably believe unlawful attack, response necessary/proportional Yes Yes

Retreat? Aggressor rule? Orig. aggressor cant claim SD unless remove and inform Defense of

Must be family, marriage, 31

Can defend anyone w/amount

others?

employment relationship

of force aggressor used (goes w/WIs duties to act)

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Provocation Elements Common law 2 prongs Objective: cause a reasonable man to lose control, no opportunity to cool off Subjective: Acted in heat of passion that obscured reason, D did lose control Mitigation Other Murder to voluntary manslaughter Adultery as adequate provocation MPC Extreme emotional disturbance (EED) Subjective, viewpoint of person in Ds situation under the circumstances as D believes them to be No limit on what it is, just needs to negate the necessary mens rea Murder to manslaughter Doesnt have to be something V did D raises defense & P disproves it WI Adequatemust cause complete loss of self control in ordinary person under the circumstances Provocationsomething D reasonably believes intended V has done which causes D to lose self control completely at the time of causing death 1st degree homicide to 2nd degree Must be something V did D raises provocation defense, P disproves it

Felony murder Elements Common law Felon sets in motion a chain of events which were or should have been in his contemplation when the motion was initiated, held responsible for any death which results from the sequence MPC Extreme recklessness can be presumed in the commission of, attempt to, or flight from commission of a felony WI Cause death of another while committing, attempting to commit, or flight from felonies dangerous to human life Need not be foreseeable

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Intent

Intent to commit felony transferred to death of V Yes D not responsible

Co-felons responsible? 3rd person causes death

Intent to commit felony doesnt transfer to intent to kill, but recklessness presumed Yes

Intend to commit the crime, transfers Yes D & co-felons responsible

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