Reinert, Criminal Law, Spring 2013

THEORIES OF PUNISHMENT
1) Utilitarian looking at the future, unconcerned with past conduct a. Lock up those who are more likely to commit crimes b. Calibrate punishment to the benefit of society 2) Retributivist punish for whats been done, regardless of what will happen in the future a. no sense in just locking up people who might commit crimes b. Calibrate punishment to the proportion of the time committed

FUNDAMENTALS OF JUST PUNISHMENT

Must prove: o Actus Reus/ Voluntary act Prohibited conduct + choice Choice can be = act or omission where legal duty exists o Mens rea (state of mind) particular conduct or particular result, or particular circumstance in statute for each thing with which D is charged Offense approach, elements approach, strict liability, etc. o Causation Even if prosecution has satisfied all of these things, D cant be punished if doing so would violate legality concerns o Judge-made law o Laws that are too vague to provide adequate notice for people o Retroactive punishment

ACTUS REAS
Proctor v. State (Oklahoma) Proctor kept a building with intent and for purpose of unlawfully selling, bartering, giving away alcohol o Proctor says hes being punished for intent/thought, not an act Court must have some act beyond mere intent o Difficult to prove that someone had a specific thought o We want some autonomy people should be able to have their thoughts

OMISSIONS
Jones v. United States MPC 2.01(3) situations where omission can be prosecuted o Must be under some legal duty, not just moral obligation

o Duty to perform the omitted act is otherwise imposed by law Court Situations where theres a breach of legal duty: o Where statute imposes a duty to care for another o Certain status relationship to another o Contractual duty to care for another o Voluntarily assuming care of another and so secluded the other as to prevent others from helping We like NOTICE when something we fail to do results in punishable injury/damage o Especially since were punishing the conduct of not acting

POSSESSION
United States v. Maldonado Possession and intent to distribute cocaine Possession required (1) power to control the drugs; (2) intent to use that power o Possession upon leaving the room, but not while he was in the room This was constructive possession power/intention to exercise control, or dominion and control, over an object not in ones actual possession MPC 2.01(4) possession o we see certain acts as more harmful/indicative of criminality based on the persons state of mind

U.S. v. Jenkins theory of constructive possession where drugs found on coffee table in acquaintances apartment in close proximity to D

VOLUNTARINESS
MPC 2.01 requirement of voluntary act People v. Newton (NY) o Guy punished for having a gun on a plane he took off outside the U.S. and didnt expect to land in N.Y. the plane landed b/c of his actions, though (being rowdy) the act needs to be voluntary Newtons act wasnt o NY Penal Law 265.05(2) any person whos in possession of a firearm thats loaded, or who has a firearm and ammunition that can be used to discharge the firearm = guilty of class D felony Martin v. State (Alabama) Involuntarily went outside when cops took D out there People v. Decina o D knew of his condition (suffered from psychomotor epilepsy) acts arent voluntary o utilitarian dont want to punish ppl if they dont know theyll have a seizure o on the other hand(see next case)

People v. Grant (Illinois) o If he knew that he was susceptible to automatic conduct due to drinking, its irrelevant that the action is involuntary (knowing of the condition ahead involuntary isnt an excuse) People v. Huey Newton didnt know about the shock condition when shot, which caused him to shoot a cop Sleepwalking murder (p. 138-139) depends on the jury/circumstances/evidence

STATUS CRIMES
Robinson v. California (U.S. Supreme Court) o No punishment for being addicted to drugs (status = addict) o Addiction = illness cruel/unusual punishment to subject addicts to crim law Addicts who arent arrested for doing drugs Powell v. Texas prosecuted for getting drunk, not just for being a chronic alcoholic o Getting drunk is an act can be punished for it. o Being an alcoholic = like being an addict unfair to punish for this Pottinger v. City of Miami is being homeless a status? Johnson v. State (FL) is there an act of delivering drugs when mom takes them while in labor? No o Undermines policy to keep families together

LEGALITY notice and intent (insure against arbitrary enforcement)

Statutes should be understandable to the normal person They should be crafted so as not to delegate basic policy matters to policemen, judges, jury, etc. o Dont want to give a lot of leeway as to how theyre applied In general, judicial interpretation of statutes should be biased in favor of the accused (rule of lenity) Justifications o Prevents arbitrary and vindictive use of the law o Enhances individual autonomy by reducing the risk that your lawful conduct will be punished retroactively Fair notice o If you have fair notice, it gives you an opportunity of choice to conform your conduct of the law o If you have the ability to choose, then those who choose to be unlawful deserve to be punished o Utilitarian perspective we worry about over-deterrence if we dont know whats lawful/unlawful Well worry about being punished retroactively if we dont have notice

State v. Egan (p. 151) o Was the statute to vague and indefinite to sufficiently inform D of a charge against him? o FL statute says English common law rules sometimes apply just bc its old doesnt mean its not still good law the statute clearly says what the rule of law is Rogers v. Tennessee (p. 155) Tennessee law o year and a day rule guy stabs a person who dies 15 months later due process issues apply it or dont apply it? Fair warning issues Can result from vague statutory language, and unforeseeable and retroactive judicial expansion of statutory language that appears narrow and precise on its face Since the year and a day rule wasnt part of TN criminal code, its use = abolished Keeler v. Superior Court (p. 160) CA o No notice of being held liable for killing fetus, since it wasnt considered a human being then

SPECIFICITY
Chicago v. Morales (p. 163) Illinois case, up at U.S. Sup. Ct. o statute about loitering is too vague to be enforced (doesnt give notice about what loitering entails) Might encompass ppl not engaged in apparent conduct Might encompass ppl engaged in unlawful conduct Might not give notice that youve complied with the warning to disperse Too much discretion to officers in terms of who they go after for loitering, etc. o Can have vague statutes that can have limiting construction so as to narrow the scope

THE GUILTY MIND

Choice, voluntariness, awareness of how ones actions might be criminal o Choice alone isnt sufficient o Also need act, causation, and culpability The greater that a D is aware of the consequences of his actions, the more permissible it is to punish him o Hes not culpable unless hes aware of the actions/intent o General requirement of fault/mens rea (culpability) state of mind that is necessary for a particular conduct/other elements of a crime Strict liability o Substantive strict liability liability without moral fault o Pure strict liability no element of the statute requires a state of mind o Impure strict liability liability without any culpable mental state with respect to at least one element

o Why have strict liability? Deterrence Easier to prosecute these cases Minor penalties o Why not have strict liability? Wont achieve deterrence someone already taking reasonable precautions wont take more if they know theyll be liable either way Over-deterrence restrict people from engaging in productive activities We should have some idea of fault Cant rebut the inference of negligence or knowledge or intent Legislative intent doesnt make sense to read scienter requirement into statute if violating the statute creates the harms, thats what matters Nature of the neglect maybe a negligent std, not strict liability Person accused is usually in a good position to avoid violation by exercising due care 2 different kinds of presumptions o Common law crimes some kind of criminal intent should be required o Public welfare crimes criminal intent isnt required People v. Dillard (p. 178) CA o statute about carrying a loaded firearm no mention of knowing in the statute Just says every person who carries a loaded firearm on his person or in a vehicle while in any public place or on any streetsis guilty of a misdemeanor No implied state of mind dont need a guilty state of mind to violate the statute United States v. Balint (p. 181) o No intent required if it would obstruct the purpose of the statute o Presumption of scienter requirement (intent/knowledge requirement) Morissette v. United States (p. 184) o D knew he was on govt prop and knew he was taking govt prop, but thought it was abandoned (so he didnt have intent to convert anything of value) Court read a state of mind requirement into the statute United States v. Wulff (p. 186) o statute against buying products made with certain birds doesnt require guilty knowledge. D says this violates due process. Can only read scienter into a silent statute where a crime = borrowed from common law Under MBTA, crime unknown to common law with significant punishment, Cong must require prosecution to prove D acted with some degree of scienter U.S. v. Dotterweich (p. 191) o Regulatory crime for selling mislabeled drugs

negligence standard, b/c we cant expect D to go check every label already affixed

United States v. Park (p. 191) o Accused of shipping contaminated food strict liability offense given the nature of being a corporate agent but there are offenses so this is not true strict liability Lambert v. California (p. 193) o D didnt register as a convicted felon conviction overturned No knowledge requirement in the statute D is punished for just being in the city (status, not an act)

Categories of culpability
Regina v. Faulkner (p. 198) o Intent to steal rum, and in the process, the ship sets on fire and is destroyed. Matters that D was engaging in something illegal

4 CATEGORIES OF FAULT (MPC 2.02)

o Purpose o Knowledge o Recklessness would the reasonable person who perceived the risk have acted anyway? o Negligence would the reasonable person have perceived the risk? MPC 2.02(7) knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it doesnt exist. MPC 2.02(5) any statute requiring negligence is proven by a showing of purposefulness, knowledge, or recklessness MPC 2.02(4) prescribed culpability requirement applies to all material elements o When one culpability is written for commission of an offense, without distinguishing b/w the material elements, that provision applies to all of the elements of an offense, unless theres a clear contrary purpose People v. Ryan (knowingly and unlawfully possess625 milligrams of a hallucinogen) MPC 2.02(3) culpability requires unless otherwise provided o Where culpability for an element isnt written, its established if D acts purposely, knowingly, or recklessly with respect to that element

MISTAKE OF FACT
Negates some state of mind thats specified from some element of a crime Regina v. Prince (p. 213)

o statute that its unlawful to take an unmarried girl under age 16 for the possession of her father and against his will Court assumes a knowledge requirement Jury says it wasnt unreasonable to think girl was over 16 (turns out she was 14) Court says the statute punishes the abduction the girls age = irrelevant If you know youre committing a misdemeanor, its irrelevant that you made a mistake of fact still be guilty of the greater offense People v. Ryan (p. 219) o Penal Law 15.15(1) and MPC 2.02(4) when only one term of culpability = in statute, its presumed to apply to every element of the offense unless an intent to limit its app clearly appears

MISTAKE OF LAW
As defense in criminal prosecution As key to argument that prosecution failed to prove an essential element o E.g. thinking the law allowed you to kill someone whos been excommunicated doesnt negate any element of the offense People v. Bray (p. 231) o If D didnt know he committed a prior felony, how could he knowingly have violated the present statute? United States v. Baker (p. 235) o D knew his conduct was unlawful (as opposed to Bray), but didnt know it was a crime, not a civil violation But we want to create incentive for people to be familiar with the law Ignorance of the law isnt an excuse, bc everyone would claim it Otherwise it might make prosecutors burden of proof to difficult to prove Hopkins v. State (p. 236) o D was told before putting up signs that it would be okay, although he knew the law said otherwise. So he was wrong both ways no mistake of fact or law Advice of counsel, even though followed in good faith, doesnt excuse a person for violating the law, and isnt a defense Cheek v. United States (p. 237) o D believed it wasnt lawful to enforce income tax laws, and was told so by lawyers at a panel he had a good faith belief for not paying taxes. D wasnt just going on lawyers advice not to pay taxes D believed taxes = unconstitutional, and he didnt have to pay them bc theyre unlawful Good faith belief can negate state of mind

MISTAKE OF LAW AS AN EXCUSE

Commonwealth v. Twitchell (p. 242) o Parents say they relied on General Law in not administering medical treatment for their sick kid who died. But did the people they relied on have authority to be relied on? o Defense if D reasonably relied on an official statement of the law, later determined to be wrong, contained in an official interpretation of the public official who is charged by law with the responsibility for the interpretation or enforcement of the law defining the offense

CAPACITY FOR MENS REA

Specific intent vs. general intent o Specific intent = crime like burglary you enter a dwelling with intent to commit a crime there Purpose/knowledge o General intent intentionally placing someone in fear of imminent harm Recklessness/negligence Hendershott v. People (p. 247) Colorado o D I lacked requisite culpability of knowingly or recklessly essential to the crime, due to brain dysfunction Or D could claim not guilty by way of insanity if he convinces the jury of this, hes acquitted, but hes subject to civil commitment that might be longer than simply serving the prison sentence for the crime committed MPC 4.02(1) evidence that D suffered from mental disease/defect to prove that D lacked the requisite state of mind for an offense o Concern that Ds will always introduce this evidence instead of the insanity defense But Ds might still make the insanity defense if they dont think the jury would buy the evidence rebutting the state of mind element Perhaps the cost of winning by insanity defense are less than just being guilty of a crime D might have the capacity of forming the requisite state of mind, but hes actually insane, so hed still use the insanity defense United States v. Bright (p. 250) o D wants to say she had stolen checks to cash bc she was convinced to cash them bc she = nave She had dependent, childlike character and needed to believe she could trust me o Issue with allowing/prohibiting expert evidence to rebut a state of mind Concern over slippery slope Concern about jury having discretion to make fine judgments about when someones state of mind has gone from knowledge to recklessness, particularly in cases involving expert testimony

Voluntary intoxication MPC 2.08

State v. Cameron (p. 252) New Jersey o voluntary intoxication = defense for a purposeful/knowledge state of mind requirement MPC 2.08(2) doesnt defend against recklessness it was reckless to get to that pt of intoxication Moral blameworthiness Montana v. Egelhoff (p. 256) o Majority excluding evidence relevant to mental elements of an offense violates due process by presuming mens rea o Concurrence Montana law allows a conviction on proof that: D caused the death of another with actual knowledge/purpose D killed under circumstances that would otherwise establish knowledge or purpose but for Ds voluntary intoxication

CAUSATION
Relationship b/w the voluntary act and social harm that crim law is trying to prevent Usually an issue where were dealing with crimes that come to some sort of result Retributivist perspective punishment as proportional to the wrongdoer o Draw a line b/w guilty and non-guilty D

But-for causation
Necessary conditions or acts but for which the harmful result wouldnt have occurred o Exception often made for simultaneous sufficient conditions Regina v. Martin Dyos (p. 262) simultaneous sufficient conditions o 2 wounds either one couldve caused the decedents death o We dont know which injury came first o Could only be guilty if D = natural and probable cause of death of decedent But bc there was another injury, we dont know if this injury caused the death, or if that other injury caused the death o Concurrent causes both are sufficient to cause the death, but NOT BOTH are necessary Hypo p. 266 H goes on desert trek. A intends to kill H, puts poison into Hs canteen. G also wants to kill H, punctures Hs canteen. H dies of thirst. o Either D deprived H of the chance of survival Both contributed to Hs death, but whos liable for it? R. v. Benge (p. 269) o Benge and his group were hired to fix RR lines. Benge messed up days for the train arrival schedule, so they were working on tracks where a train was heading. Customary to send a signal

man to warn trains just in case usually stood 1000 ft away, but he only stood 540 ft. Engine driver wasnt paying attention, saw the signal too late to stop, many injured. o Court didnt accept excuse that others (signal man and driver) were negligent and contributed to the accident if they said the same thing, who would be liable? Primary cause of accident = Benges wrongful taking up of the rails Benges negligence = necessary, but not sufficient to cause injury Other guys negligence was sufficient to cause accident, but not necessary Key pt but for Ds voluntary acts, would the SOCIAL HARM have occurred WHEN and AS it did? but for cause can help tell us who was not criminally liable o Mens rea + prox. cause help figure out who was liable Violent acts o Hubbard v. Commonwealth (p. 272) D was arrested for being drunk. Jailor/decedent and deputy tried to grab D. D fell to floor, fought with deputy. Jailor/decedent kept hold of D, then had someone else replace him. Jailor got out of courthouse when he had a heart attack, died 30 min later. D never hit decedent (no physical injury) Court where cause of death wasnt due to a blow/injury (direct cause), or some hostile demonstration/overt act directed toward decedent (prox. cause), theres no crim liability unless the serious harm = probable and natural consequence of an indirect, unlawful act of D D knew he had a heart prob, yet undertook a task that would excite him o Liability requires but for and proximate cause Where theres overt physical act, there must be some circumstances under which that physical act applies even when youre not assaulting the victim Where theres an indirect cause, and that has to be the natural/probable consequence, we have to examine foreseeability We have to figure out remoteness in cause to see if its resultant harm = too speculative E.g. someone resisting arrest wont think someones going to die by virtue of resistance o Result has to be foreseeable for prox. cause Depending on how foreseeable the harmful result is, the more we look @ foreseeability in relation to causation

Proximate cause
Commonwealth v. Rhodes (p. 275) MA o D set the fire that Cpt. Trainer responded to. While on the roof, Trainer collapsed. Med. Examiner said combination of factors precipitated the complication that caused his death.

o Court Ds conduct must be the efficient cause (i.e. cause that necessarily sets in operation the factors which caused the death of Trainer) MPC 2.03 causal relationship b/w conduct and result o (3) deals w/ recklessness/negligent causing as element of an offense (b) as long as the result isnt TOO remote or accidental Hypos (p. 277) o Baby dying of dehydration on hot day bc mom couldnt make it back to the car bc she was clubbed in the back of the head while returning to her car from ATM, leaving her unconscious. Always TOO accidental in relation to addl harm Always intervening causes which intervening causes matter? o Driving drunk, D hits a fire hydrant on a cold night, causing a flood that freezes. Later, another driver skids on the icy road and is killed in the crash. More remote youre being reckless driving drunk, but that didnt pose a risk to someone Distinguish b/w CAUSATION requirements and MENS REA requirements Black letter rule for prox. cause o Direct causes are ALWAYS proximate causes See Hubbard

INTERVENING CAUSES
Commonwealth v. Root (p. 281) PA - illegal drag race on rural 3-lane highway, decedent tried to pass D in opposing traffics lane, was killed - D prosecuted for involuntary manslaughter requires reckless conduct o Cause? Maybe but-for in this case, but not direct cause Decedent chose to drive in opposing traffic maybe = intervening cause of death But maybe it was part of the foreseeable chain of events in drag racing But decedent had a autonomous choice Distinguish b/w drag racing and Russian roulette choice/control vs. chance State v. Wassil (heroin delivery) (p. 286) CT - Court Ds delivery of heroin to decedent = prox cause of the death o Decedents act of injecting himself wasnt an intervening cause United States v. Hamilton (p. 287) - D beat the crap out of decedent. Doctors put tubes in decedent to keep airways clear, and restrained him bc he was violent. Doctors removed the restraints to change decedents clothes. Decedent had a convulsion, pulled out the tubes, died an hour later. o Gross neg breaks the chain of causation, but ordinary medical negligence doesnt Gross negligence approaches crim conduct in itself Stephenson v. State (p. 293) Indiana - D abducted a woman, attempted to rape her. She took poison, he found out, offered to take her to hospital, but she refused. She got sick while he took her home, D didnt listen. She got med treatment,

but died 10 days later due to shock, loss of food/rest, the poison, lack of early treatment, and the abduction/events. o Decedents acts arent voluntary bc shes distracted and mentally irresponsible Requirements = autonomous choice that is voluntary; o Decedent must be acting responsibly in order for the decedents actions not to qualify as intervening In Rex v. Valade woman jumped from a window to avoid D D was held guilty of murder

People v. Kevorkian (p. 297) no liability for D Michigan - Foreseeable result, result was intended, but-for cause - D provided victims with tools to kill themselves, and then they killed themselves freely chose to die o Distinguish from People v. Duffy D gave victim the gun and encouraged him to blow his head off victim wasnt aware (was drunk) Victims in Kevorkian = aware of the situation - Irresponsible victim + D providing the means of death = D can be liable for murder

CAUSATION BY OMISSION
People v. Beardsley (p. 302) D having an affair with decedent. She took morphine (unknown to D) he found them, but it was too late. He laid her in a bed downstairs to hide her shes later found dead there. Ds convicted of manslaughter Relationship duty to prevent the risk to decedent? o D invited decedent over, saw her take the pills, and he hid her instead of taking her for help Joint enterprise theory o Decedent had been in this situation before she assumed the risks when she began the weekend w/ D. Even if risk is foreseeable, if the victim assumed the risk voluntarily, its unfair to hold D liable for it What if the victim and D had been married? If we held D liable, thatd be inconsistent with intervening human actor rule (victim was a responsible actor who committed suicide). On the other hand, if the duty overrides that intervening human agency, then were saying the duty substitutes as the direct cause of the death (although the choice to commit suicide was the direct cause). On the other hand, Ds omission is considered a legally sanctionable action (b/c of his duty)

THINGS TO CONSIDER WITH OMISSION 1) 2) 3) 4) Source of duty Scope of duty Relationship to intervening human actor problem Timing of act/omission and the culpable mental state

HOMICIDE MPC Article 210

Grading of offenses turns on culpability of the actor Homicide = murder, negligent homicide, manslaughter Common law murder killing of one person with malice aforethought o Malice aforethought = Intent to kill Ways of showing malice @ common law o Intent to inflict grievous bodily injury on another, but you ended up killing o If you could show that D had reckless disregard for value of human life o Felony murder doctrine PP. 311-323 for states homicide statutes

Intentional murder (2nd degree) unplanned/impulsive (U.S. v. Watson)

Francis v. Franklin (p. 325) - D tried to escape, ended up killing the guy whose car keys he tried to steal (shot him through the door) o Court intentional murder isnt strict liability; prosecution must prove intent Intent cant be proven based on the evidence of the act

Premeditated murder (1st degree) calculated/planned (United States v. Watson)

Requirements for murder premeditation and deliberation Premeditation thought before acting, and reaching a decision o U.S. v. Watson (p. 330) waited for officer to arrive, sat at table with head in hands o Sometimes considered quantitatively (amt of time spent considering whether to kill) Deliberation giving a 2nd thought, mulling it over in your mind, reflecting on the decision o Waited to shoot the officer, stood over the officer before firing o Sometimes considered qualitatively (how much you really considered killing) But we leave room for impulse killings o Punish premeditated murder more than impulsive murder, though Deterrence deter the person who considers these things and does it anyway Incapacitation although the person who cant control himself might be more dangerous, were more scared of the person who would consider the killing Moral we should kill the person who killed in cold blood more than the one who killed impulsively; but the person whos suddenly inspired to kill is also morally blameworthy Mrs. Healy killed her husband by suffocating him he was living in pain, didnt want to go to a hospital or old age home o Circumstantial evidence of premeditation/deliberation, but maybe it was impulsive Commonwealth v. Gould o Sane enough to kill, but not sane enough to premeditate/deliberate? Some courts no time is too short to premeditate and decide to kill

Most courts you need some appreciable amount of time

Voluntary manslaughter MPC 210.3 (manslaughter)

3 questions 1) What constitutes legal provocation? a. Provocation must be adequate objective test (reasonable person standard) i. Physical attack, except where decedent was legally entitled to use force ii. Mutual contact iii. Threat of physical attack iv. Witnessing adultery v. WORDS ALONE arent adequate provocation, except in some circumstances b. D must actually have been provoked subjective test (so if you have above-avg. restraint, youll be held to a higher standard) 2) How immediate must the provocation be with respect to the killing? a. Cool-down period 3) How flexible are we in defining what a reasonable person is?

Legal provocation
People v. Walker (p. 340) o Objective standard (legal provocation) After he used self-defense (throwing brick) he didnt need to do anything more, but did Reasonable person would be tempted to kill but the reasonable person wouldnt act on that temptation = partial excuse (provocation moved him toward killing, but didnt justify the killing) o W/ partial excuse/partial justification, we focus on victims actions in provoking the killing Some crimes = difficult to judge or deter (recognize human weakness from utilitarian and retributivist perspectives People v. Berry (p. 358) o Verbal provocation can be sufficient need to understand Ds feelings when determining whether words provoked him Leaving your spouse isnt provocation o Behavior of a resisting victim cant provide provocation (e.g. screaming in resistance) Cumulative provocation o Ex Parte Fraley (p. 346) original provocation = killing of son, and seeing decedent = renewed provocation, carrying over the original conduct by decedent (the original provocation) o State v. Gounagias (p. 349) provocative event must occur right before the killing Provocation can occur over a long pd of time, provided theres no cooling pd Burden of proof for provocation o If provocation = affirmative defense D proves it by preponderance of the evidence

o If provocation = partial justification D bears burden of production, and prosecution must disprove it beyond a reasonable doubt Adultery as provocation o Rowland v. State (p. 350) Mississippi provocation defense = deterrent against other conduct We dont want people committing adultery if husband kills wife accidentally when trying to kill her affair, hes not punished as severely o Price v. State (p. 352) TX No need to witness the adultery just have to know its transpiring o State v. Yanz (p. 357) CT provocation = would the reasonable person be tempted to kill? so this has to accommodate reasonable mistakes of fact Immediacy of the provocation in relation to killing o Cool-down period the entire altercation lasted 6 minutes not enough time to cool down and think about the choice to kill Objective test would a reasonable person have had time to cool off? Subjective test did D cool off?

Defining the reasonable person

People v. Berry o Reasonable man of a certain age/race/class, etc.? Objective test heat of passion must be such that would naturally be aroused in minds of reasonable ppl under such circumstances o Passion can = fear, anger, etc., BUT NOT REVENGE Stereotypes of men being more violent than women o So when women act violently, well expect them to have a much higher level of self-control than men wont allow provocation defense as easily Director of Public Prosecutions v. Camplin o we take age and gender into account Maybe also moral beliefs, religion, etc. MPC tries to distinguish between moral/political beliefs from objective categories o But certain special sensitivities of certain groups might be admitted in the objective standard People v. Wu (p. 369) cultural evidence to mitigate deliberation, and give evid. for provocation o Unconsciousness instruction D claims she was unconscious when she killed her son after hearing about the other gf and how the son was abused o Cultural background instruction

Excuse it explains Ds act of wrongdoing was cause by something other than bad character reasonable ppl in Ds cultural background would understand Ds emotional response She was looking more to kill herself than to kill her son Indicates source of stress/explains emotional response (not idiosyncratic beliefs or revenge) Indicates things about premeditation/deliberation she mightve planned her own suicide, but only killed her son right after hearing of the gf, abuse, etc. Culture where dishonor can only be avenged by revenge Harder for cultural evid to mitigate deliberation Could send it to jury to cast doubt on premedit/deliberation, or as evid of passion felt that drove D to kill Maybe no time is enough for cooling off b/c of cultural background o MPC 210.3(1)(b) manslaughter = homicide thatd otherwise be murder, but is committed under the influence of extreme mental/emotional disturbance No specific provocative act required just reasonable explan. for being extremely disturbed If theres provocative act requirement, decedent neednt commit it Even if decedent provoked the incident, words could be sufficient for EED defense No rigid cooling off rule Subjective element D must be extremely disturbed Objective element reasonable excuse for Ds extreme disturbance Question isnt whether it was reasonable for disturbance to lead to killing Considered from viewpoint of person in actors situation under circumstances as he believes them to be Dont consider idiosyncratic moral value too narrow for MPC excuse o NY once theres EED finding, D always entitled to instruction regarding manslaughter

UNINTENTIONAL HOMICIDE
Ordinary negligence = negligent homicide Recklessness w/out extreme indifference to human life = involuntary manslaughter Recklessness w/ extreme indifference to human life = reckless murder

INVOLUNTARY MANSLAUGHTER
MPC 210.4 negligent homicide = 3rd degree felony Commonwealth v. Welansky (building fire case, exists blocked off) p. 381 o willful, wanton, reckless neglect

Intentionally omitting fulfillment of duty of care D knew he had a duty to take reasonable care to make premises safe for invitees, but didnt do so o Negligent, but not reckless D knew potential grave danger in not fulfilling Boston building code requirement, but still didnt take action o Grave danger = high probability of substantial harm If risk X gravity of harm = slightly higher than benefit negligence If risk X gravity of harm = much higher than benefit recklessness

Commonwealth v. Levesque (p. 287) o When dealing with omission in involuntary homicide motive = major concern Benefit of not calling authorities vs. risk of not calling the authorities o D accidentally set building on fire, but then they went shopping had chances to call authorities but didnt not calling the authorities despite knowing great danger = reckless Professor leaving baby in the car o Reasonable person wouldve known risk of leaving baby in car for 5 hours (objective std = reckless) Even if he subjectively didnt know the risk o This gross negligence = culpable sometimes But its sometimes caused by habitual behavior, not absent-mindedness Undermines idea of deterrence actors werent acting voluntarily Undermines retributive view of punishing negligence State v. Williams (p. 390) o Parents dont take child to doctor, child has tooth infection, dies 2 weeks later o WA statute requires ordinary or simple negligence if reasonable person wouldve been aware of the risk that the baby would die, then the parents are guilty o i.e. prosecution must show that a reasonable person wouldve sought medical care o benefit of not taking action avoid having child taken away from them (35% chance that American Indian families lose their children, and this happened to Ds cousin) o Causation question By the time D shouldve known to see a doctor, it wouldve been too late Maybe reasonable person wouldve called doctor, but wouldnt have expected death o Gross/criminal negligence standard Was the risk substantial? Was the risk justifiable? Should D have been aware of risk? (How culpable was Ds failure to perceive risk?) MPC 2.02(2)(d) consider nature/purpose of Ds conduct and circumstances known to D Use of cultural evidence of whats reasonable for D to have perceived Mere diff in intelligence isnt part of actors situation Unusual characteristics (e.g. blind, deaf, etc.) are included in actors situation Gross/criminal negligence

o Shooting @ cans on stumps, didnt check if anyone was on path behind stumps, shoots biker Low substantiality of risk evidence that theres rarely anyone back there Only negl. if cost of precaution is less than cost of harm discounted by probability o Driving home on country road @ night, you rarely see cars there. You come to intersection w/ stop sign, look to see lights. If there arent you drive on without stopping. Car is coming w/ no lights, you hit it, and driver dies. Other driver contributed to his death D took precautions by looking for lights Assumption that we only prosecute low-level crimes based on non-intentional culpability o Okay to prosecute for negligent behavior when harm is really great, though Mental states help ID culpability/fault o E.g. youre a terrorist, you build an unarmed bomb, accomplice takes it in car, it explodes when accomplice hits a bump in the road, and kills people. Youre not negligent in building the bomb, but youre a terrorist youre culpable

RECKLESS MURDER
Mayes v. People (p. 400) o Drunk D threw beer glass @ wife who was holding oil lamp, explodes, shes burned badly and later dies o No intent to kill or cause serious bodily harm o Abandoned and malignant heart evil must be manifested in a risk to others Common law intent to inflict serious bodily harm = enough for murder if death occurs o D acted with no regard for wifes life, and the act = unlawful/dangerous o Unjustifiable risk unprovoked, no redeeming social purpose MPC 210.2(1)(b) reckless murder requires extreme indifference to value of human life o Nature of risk = more important than likelihood of the risk Commonwealth v. Malone (p. 404) o Boys playing with gun, D shoots 3 times, bullet fires o D claims the gun couldnt have fired unless it misfired or there was an unknown chambered bullet Maybe its not as reckless, but theres no social value for it BUT its like building the unarmed bomb that goes off still culpable b/c these acts are dangerous, regardless of the probability of harm Berry v. Superior Court (p. 406) o D bought trained fighting dog, furthered the dogs training, left fence open when he knew little kids were next door and hed warned them about the dog dog mauled boy o Probability of the risk = contextual o Conscious disregard of risk D trained the dog, left the dog in open area w/ open fence next door to kids o Justifiable risk?

D left the dog in open area w/ open fence and kids next door, and the dog was trained just to fight Not like D was protecting his home overriding interest

FELONY MURDER
Causing death in course of felony o Proximate cause problem Reckless/negligent homicide Ds recklessness/neg must cause death Death must be of a foreseeable kind Intent to cause felony doesnt imply intent/awareness of death Intervening actor e.g. armed robbery = inherently dangerous b/c it involves arms o Felony murder = any rule reducing culpability w/ respect to death required for a particular grade of murder (usually 1st degree) when its committed in course of certain felonies Limiting/expanding felony murder o Change what counts as predicate felony for felony-murder doctrine Enumerate particular felonies or only predicate it on violent felonies Enumerate predicate felonies necessary for 1st degree murder Enumerate those predicates for 2nd degree murder o Aggravate liability (e.g. manslaughter 1st degree murder, 2d degree murder 1st degree murder) o Require gross recklessness with respect to death as outcome Or require negligence or ordinary recklessness

- LIMITATIONS ON FELONY MURDER

o CAUSAL LINKS Could say felon has to be the killer, victim must be a non-participant in the felony, etc. People v. Hickman (p. 427) D burgles, cop chases D but loses track of him sees someone else running with a gun, orders him to stop but he doesnt cop fires gun, kills the other guy whos also a cop Ill. elements of felony murder killing person without lawful justification = murder if D was also attempting to commit forcible felony other than voluntary manslaughter during the act that caused the death o He whose act causes, directly/indirectly, the death of an innocent victim = guilty of felony murder Victim = non-participant, and was killed by another officer (not one of the Ds) People v. Morris (p. 429) if co-felon is killed, then D (other felon) cant be held liable under felony-murder rule People v. Washington (p. 430) Ds robbed gas station, one robber pointed gun @ manager, who shot and killed the robber. Manager went outside, saw another unarmed guy, shot him

CA elements of felony murder all murder committed in perpetration/attempt to perpetrate robbery = murder in 1st degree (felon must be the one who commits the murder) o Punishing for victims responses doesnt really deter felonies Although D might have control over victims responses Means of response might differ Ability of victims to defend themselves People v. Cabaltero (p. 431) accomplice 1 kills accomplice 2, and accomplice 3 held liable Felony murder encompasses killings done to innocent victims or co-felons o Accidental or intentional o Must be done during commission of felony (doesnt necessarily have to help the felony succeed, though)

o COMPLETED FELONY (break in causal chain) People v. Gladman (p.432) D armed robbed a deli, runs away, cops block off the area, D hides in bowling alley parking lot, cop finds him, he shoots cop 15 min passed from robbery to shooting Factors for jurys consideration o How far away was the felony committed o How much time passed o Did felon have fruits of crime on him? o Were police in close pursuit? o Did D achieve pt of temporary safety? Watson (D stole car, hid in apt, head in hands, stood over cop, shot him) o Didnt have possession of the car o Small time interval, though o Point of temp safety? Losing the police altogether VS police dont really know where he is exactly, but know his general location (e.g. apt building) State v. Colenburg (p. 435) felony-murder rule applied D got stolen car, tampered with VIN = felony hit/killed child with car 7 months later Court still driving car w/out owners consent = felony-murder People v. Cavitt (p. 436) 2 Ds rob 3rd accomplices stepmother, hog-tie accomplices step-mom w/ sheet, then tie up accomplice to make it look like shes not involved. Step-mom dies. Ds say accomplice wanted to kill step-mom (had her own agenda) Ds say theyd escaped/reached pt of safety We dont care why a person kills a victim

o Purpose of felony murder = eliminate inquiries of intent to kill

o FELONY MUST BE INHERENTLY DANGEROUS

People v. Patterson (p. 440) Supplying cocaine for someone else, they die of acute cocaine intoxication o Look @ the crime in the abstract is it dangerous? Inherently dangerous: Poisoning drink/food Burning a car Kidnapping Sale of heroine Possession of gun by ex-felon Possession of a concealable weapon by an alien

o Merger doctrine (independent felonious purpose) State v. Shock (p. 442) D beat boy victim, boy later died. Found that boy died of bodily injuries homicide, committed in attempt to perpetrateother felony, shall be deemed 1st degree murder o D says other felony = collateral felony element thats distinct from murder Court felony of abuse isnt so distinct from elements of homicide as to not be considered an ingredient of homicide

- RATIONALE FOR FELONY MURDER RULE

o Retributivist existence of indep felony est that D acted with sort of mens rea thatd ordinarily est murder liability (e.g. gross recklessness/extreme indiff to human life) Felony = stand-in for elements of murder But some felonies can be committed without gross recklessness/extreme indiff Deter ppl from committing felonies themselves Or make ppl committing felonies act more carefully State v. Martin (p. 413) o D was kicked out of party, started fire in stairwell while leaving, building caught fire, girl dies o Assuming theres arson NJ statute = strict liability w/ respect to death Another statute strict liability offenses where the element is a result (death), we look for result (death) being probable consequence o MPC rebuttable presumption of recklessness when homicide occurs o Result must not be too remote, accidental in occurrence, or dependent on anothers volitional act to have a just bearing on actors liability or gravity of his offense People v. Stamp (p. 425) o Ds armed w/ gun/blackjack when committing armed robbery. After Ds leave, owner dies of heart attack

 Ds charged/convicted of 1st degree murder o They were committing a violent felony, and as a result of the felony, the owner died People v. Brackett (p. 427) o Woman raped, stops eating b/c of her depressing due to the rape docs give her feeding tube, she chokes on it b/c of breathing difficulties from the rape

RAPE
MPC 213.1(1) RAPE o Doesnt apply to marital rape, same-sex rape o Only men can be guilty of rape o Whether or not victim = voluntary social companion of actor o No explicit mens rea o No explicit requirement of non-consent Resistance o Brown v. State Common-law utmost requirement Victim didnt try to free her hands, just asked D to let her go, no mark of struggle Rape = easy accusation; if woman really tried to resists, thered be indication on the guy o People v. Dorsey (D stopped elevator while he/victim were on it, in between floors, told her to perform sexual favors for him) reasonable resistance Did the victim resist (force used) or Did D use sufficient amount of threats that caused sufficient degree in victim of fear of death, serious bodily injury, kidnap, etc. Type reasonably expected of a person in victims situation o Consider subjective factors in an objective requirement of resistance E.g. height/weight differences o State v. Powell (woman voluntarily got into Ds car, he took her to secluded area, told her to have sex with him or hed hurt/kill her) Dorsey logic if victim is threatened with force, might excuse lack of attempts to resist o People v. Warren (D took woman off her bike, carried her into woods, told her to do sexual acts) Open woods maybe D couldve escaped (she didnt try to flee) Force o People v. Barnes Elements of rape in CA sex with someone, not your spouse, where its accomplished against a persons will by means of force or fear of immediate and unlawful bodily injury on the person or another No resistance requirement

 Not gender-specific Only applies to extra-marital sex Resistance Evidence of woman who freeze when being raped Vs. evidence of resistance deterring rape Court matter of personal autonomy woman decides how and whether or not to resist Evid of force D said hed let her leave D showed his muscles to show her he could throw her around D reared back as if to hit her Victim refused to take off clothes twice D said shed see his bad side if she didnt do it Evid of non-consent Refusal to take clothes off, communicated desire to leave, rebuffed D physically o People v. Jansson Proving force is equiv to proving non-consent Consent: Internal attitudinal person may subjectively want sex or not, but fail to manifest those wishes in some expressive way person seeking sex could mistake the other persons desire to have it or not External expressive verbal or other external permission given by parties (no permission if its not given/shown) o Regardless of persons state of mind whos giving/not giving consent What happens if someone is silent? o Voluntariness issues are you consenting voluntarily? o Permission can be withdrawn anytime before the sex o State v. Smith (woman goes home with D from a bar. He paid for dinner, assumes he gets sex. Tells her she can do it the easy/hard way. She relents. They have sex. She calls police after) If youre forced to have sex, then its without consent Prosecution must prove beyond reasonable doubt that, based on victims manifestations, there wasnt consent Would a reasonable person in Ds shoes have believed that the victims conduct under all the circumstances indicated her consent? o In the Interest of M.T.S. (D lived in same home as 15 y/o victim. Victim said D joked about going to her room one night, he did that. She went back to bed, but awoke and found him inside her. D claims theyd joked around and kissed before, she was awake when the sex began, and then she later got upset). Trial court said victim wasnt sleeping, but she didnt provide consent for sex. 2d degree assault sexual penetration with another person w/ use of physical force or coercion Physical force o State any act of sexual touching thats involuntary

o D force used to overcome lack of consent Consent negates force o Force = any unauthorized touching o Prosecution must prove non-consent beyond reasonable doubt Mens rea = negligence what reasonable person should perceived based on victims acts under the circumstances Utmost resistance reasonable resistance (Dorsey) force/consent, instead of resistance (Barnes) manifesting consent before D can freely engage in sex VS. prosecution must prove manifesting of nonconsent (Smith & M.T.S.) MENS REA o Negligence as state of mind for consent o Commonwealth v. Fischer 2 freshmen 1st incident, rough sex (consensual); 2nd incident o D says 1st time indicated there was consent for rough sex 2nd time o Victim got into the room, D locked the door, pushed her onto bed, straddled her, held her down, engaged in sexual activities Mistake of fact isnt a defense (acc. to court before) Forcible compulsion = physical, intellectual, moral, or psychological force Intellectual/moral force requires examining Ds belief of victims consent but maybe we wont give mistake of fact defense if physical force = used o People v. Mayberry (D seen harassing a woman when shes going into a store. Theyre seen walking around together. She didnt think anyone would help her, so she went to his apt, had sex. Victim didnt try to flee, get help, etc. reasonable for D to have mistake of fact o Evidentiary reforms adopted to reduce burden of prosecuting rape cases Most eliminated corroboration and prompt complaint rules Rape-shield laws to address concerns that evid of complainants sexual history helps to determine whether or not shes telling the truth, etc. MARITAL RAPE o People v. Liberta (D is legally separated from his wife, but he finds a way to rape her and make their child watch) D isnt considered married to victim b/c he was separated no marital rape exemption Unconstitutional to treat rape differently basd on whether victim = man or woman, too

JUSTIFICATION AND EXCUSES

Justification no wrongful act occurred; wed want D to behave the way he behaved under the circumstances o E.g. someone in bar attacks you with knife, you fight back and kill him Your actions cant be resisted You can be assisted by others (they wouldnt be committing a crime)

Your resistance is a universally valid rule of action Excuse wrongfulness of the conduct is mitigated in some way o E.g. insane person attacks you, and you resist insanity = excuse Insane person cant be assisted in attacking you We dont want everyone acting that way Procedural differences o Burden of proof Justification govt has burden of proof on self-defense Beyond a reasonable doubt D just has to come forward with enough evidence to allow jury to conclude the prosecution hasnt met its burden Excuse not part of attendant circumstances or part of elements of the offense, so its not implied in writing a statute Not prosecutions burden to prove that D didnt appreciate the wrongfulness of his actions o We generally assume that D appreciated the wrongfulness of the actions o People v. La Voie (D accused of murder, but he claims self-defense) D actual belief of danger of receiving great bodily harm or being killed (subjective std) Even if D was mistake, he had a reasonable belief (objective std) Its okay to kill an aggressor, but maybe not multiple aggressors Here, D wasnt culpable at all Other jurisdictions, if he made a mistake abt the danger to him, reduction to manslaughter D was mistaken, but it was a reasonable mistake, so hes not as culpable Imminence of the danger/threat o MPC Self-defense you can use force if its necessary to protect yourself from unlawful force cant use force if you provoked the force being used against you, though or if you can avoid the necessity of using force by retreating o NO duty to retreat @ business or at home Unless youre the initial aggressor Can use deadly force if theres a danger of death, serious bodily injury, kidnapping, or sexual intercourse compelled by force/threat Cant use deadly force to protect prop (though some states allow it) o People v. Gleghorn (D = original aggressor he instigated after Fairall broke the landlords stuff) D says he was found guilty of simple assault, so Fairall was justified in defending with force, but not deadly force Since Fairall used deadly force, D shouldve been able to defend w/ deadly force Problem with Fairalls actions (after D started hitting the ceiling) Proportionality of the response/defense (shooting arrows at D) o But D couldve incapacitated Fairall and stopped D kept beating him

- SELF DEFENSE

Mistake maybe Fairall was mistaken of the imminent death, but D doesnt have the right to resist with deadly force o State v. Leidholm (battered spouse case, D killed her husband while he was asleep) Test for justification Subjective part good faith and honestly believed Objective part and had a reasonable ground that it was necessary Jury places itself in Ds shoes as much as possible Imminence Husband was asleep? o But b/c of battered spouse syndrome (BSS), she mightve felt shed be abused again once he awoke learned helplessness feeling like she couldnt escape issue with evidence of BSS jury might always find that wifes killing = okay bc shes been abused and we dont approve of these relationships Duty to retreat No duty to retreat in your own house, unless youre initial aggressor or cooccupant o Maybe D couldve fled instead of killing husband o But BSS she felt like she couldnt escape (learned helplessness) o Battered spouse syndrome Ways in which testimony can be useful Can provide credibility to Ds story past experience of abuse, explains why there was no retreat, why the threat of harm was imminent, why it seemed reasonable to believe deadly force was necessary But it poses problems Jury will see victim as a bad person, because of the past battering, and excuse the killing bc theres a moral judgment passed on the victim Jury will equate psychic harm of being battered with the serious injury or death thats sufficient to justify use of deadly force If you admit evidence of BSS, how can you get the jury to use the evidence for appropriate purposes? Can instruct them to use it for appropriate manners, not inappropriate purposes Even if theres no instruction on it, itll be admitted as relevant evidence o Should this only be admissible in cases of battered spouses? o People v. Goetz (guy who shot 4 black guys on the NY subway) reasonable self defender Take into account physical attributes, knowledge D had of the victim, any prior experience that would explain Ds belief of victims harmful intentions o D had prior exp of being robbed Here, victims didnt threaten him w/ a weapon, though Victims were strangers no past exp with them, specifically o D shot 2 guys who didnt even talk to him Ds motive = revenge, not self-defense

REVENGE isnt sufficient provocation o We dont incorp idiosyncratic moral values in provocation o We dont want to sanction racist ideas o MPC 3.04(1) no objective belief D just has to belief that such force is immediately necessary for purposes of self-defense But theres still reasonableness requirement if subjective belief = unreasonable, D can be liable for lesser degree crimes, just not highest degree crimes o NY if belief = unreasonable, its not a defense o People v. Abbott (D who spent most of his life in prison killed guy in alley mistaken belief that the guy was going to fight him) Reasonable person with prison background Different understanding of interactions with ppl Insanity excuse cant conform my behavior to what society says is right/wrong Stems from time spent in prison Retributivist tough to see how much responsibility D has, as opposed to our responsibility Utilitarian tough to see how we could deter him (hed just go back to prison, furthering his issues of acting within societal norms) o Tennessee v. Garner Police use of deadly force if theres a mistaken belief, as long as there was a basis to think that the person posed a threat, it doesnt matter if theyre mistaken. Just need reasonable ground for believing the person posed a threat, then the police can use deadly force to stop that person o People v. Ceballos (D installed trap gun to shoot anyone trying to break into his house, shot a kid) Statute allows deadly force to prevent a felony plain reading encompasses burglary Common-law cant use deadly force where theres no threat of death o Normative judgments we dont want ppl setting up trap guns to ward off intruders Use of force for defense of property o non-deadly force can be used to protect prop if its reasonable to do so, and it must be proportional non-deadly force must first request that aggressor desist before using non-deadly force o deadly force most states never permitted solely to defend prop, even if its the only means of defending property if you try to use non-deadly force, and they respond with deadly force, then you can use deadly force if circumstances of persons attempt to dispossess you of your prop create a fear in you of great bodily harm/death, you can use deadly force robbery inherently involves risk/reasonable fear of great bodily harm/death other crimes look @ character/manner of commission in that particular instance if someones trying to dispossess you of your house, can use deadly force MPC 3.06(3)(d)(1)

Some states okay to use deadly force if necessary to terminate a felonious/unlawful entry

- NECESSITY
o 6 conditions Clear and imminent danger Direct causal relationship b/w Ds actions and averting the harm No effective legal way to avert the harm Harm that D will cause must be less serious than the harm sought to be averted Judge/jury decide if D made the right choice Judged by harm thats reasonably foreseeable @ the time, not what actually occurs Lawmakers must not have taken the choice off the table through legislation D must come to the situation with clean hands o 3 other conditions sometimes in play Limited to emergencies created by natural, not human, forces Some courts never apply necessity to homicide Limited only to protection of persons/property, as opposed to protecting econ/reputational interests o The Queen v. Dudley & Stephens (4 sailors stranded in the ocean, small amt of food runs out, 2 decide to kill the 17 y/o boy to spare the others who are married/have families, but all 3 other guys eat the boy. Another ship picks them up days later) Special verdict they wouldve died but for eating the boy Likely the boy wouldve died before the others 5-judge panel they couldnt have known when they killed the boy that another boat might not have come along in the meantime, and the killing wouldve been for naught What actually happens = irrelevant @ the time they acted, there was risk that theyd killed for nothing Under MPC Nothing explicit against killing of necessity o But its hard to think of something worse in character than killing No imminence requirement Only requires necessary belief but if reckless/negligent about the belief, D could be liable for a crime requiring reckless/negligent mens rea (not knowledge/purposeful, though) o Homicide is never a necessity (acc to common law) o Mountain climber hypo 2 climbers, one falls over cliff, theyre attached, gu y at the top cuts the rope to save his own life Utilitarian youre saving 1 life, versus losing 2 Retributivist Guy who originally fell is more directly connected poses more threat for 1st climber Circumstances dont require victim to do something wrong to pose a threat to D D just needs to be justified in cutting the rope

- DURESS
o Excuse, not justification

o Involves response to human threat, not natural danger o May have a proportionality requirement dont want conduct thats too dangerous No balancing of lesser evil Can claim duress even if the crime you commit = less serious than the one youre trying to avert o If you place yourself in danger recklessly/negligently, might be denied duress excuse o Need to have no reasonable opportunity to escape from source of duress o Imminent and continuous threat o Duress youre committing an offense in furtherance of another crime No excuse in killing an innocent purpose, even if theres imminent threat o State v. Crawford (D says his son/mom were threatened if he didnt do Batemans work to pay back debts to Bateman) Multiple opportunities to get away threat of future injury doesnt est imminence Imminent threat Must be continuous no opportunity to escape o Myers threat ceases to be imminent once the threat is out of contact w/ D Concerned about scope of this defense the broader the duress defense is, the more ppl will use them when committing crimes o United States v. Contento-Pachon (D told to swallow cocaine and bring to U.S., son/wife threatened) No opp to escape D believed police wouldnt have helped him Would the reasonable Colombian person have thought there was no opp to escape? D didnt put himself in the bad position (unlike in Crawford) Thought he was doing a driving job, then found out about smuggling drugs o Williams v. State (guys wanted to steal drugs from Williams boss, so they threatened him and made him show them where the drug stash was) Williams got himself involved in the mess made himself a target when he got involved with Eubanks, the drug boss/dealer o Duress as utilitarian Someone under duress cant be deterred, so youre not doing anything by punishing them for crimes committed under duress Although maybe we could increase punishment severity for duress crimes to give even greater incentive against committing the crime than the duress

- INSANITY
o MNaghten (cognitive test)

Insanity you dont know the conduct youre performing is morally right/wrong bc of mental disease or defect o Distinguish from someone with idiosyncratic moral values OR you dont know the nature of the act (e.g. you shoot a gun, but think youre picking flowers) MNaghten D took precautions, knew the act was wrong irrelevant that he cant control himself Legal wrongs vs. moral wrong Colorado inability to know moral right from wrong (applying MNaghten) o But MNaghten itself didnt specify whether its moral or legal right/wrong Most cases, mental disease/defect impairs ability to tell moral OR legal right/wrong o Exception = deific decree (e.g. Serravo) o People v. Serravo Guy thought G-d came to him, told him to build a sports complex, but he had to sever his marriage, which required stabbing his wife in the back Incapable of distinguishing right from wrong includes case where a person appreciates that his conduct is criminal, but bc of mental disease/defect, believes it to be morally right Right from wrong = moral right/wrong o Not legal right/wrong we presume ppl know the law, and dont require the prosecution to establish this General ignorance of the law isnt a defense Deific decree exception G-d speaking to you VS Satan speaking to you o G-d = morally okay o Satan = evil = morally wrong Prevents us from asking whether the act was morally right/wrong, since a deity is commanding the act Irresistible impulse test (volitional test) Some types of insanity prevent you from restraining yourself, even if you know what youre doing is wrong o Will has been involuntarily so completely destroyed that his actions are beyond his control o Smith v. State (guy who shot victim while trying to escape army base) D had Ganzer Syndrome (lying about his insanity) Hes schizophrenic, but his actions indicate a reasonable plan where he considered his actions everything he did was for his goal On the other hand he was under a delusion of a plan to escape the army base the reasonable actions were brought about by a delusional goal o MPC Article 4, 4.01 lack of substantial capacity & appreciate Must show D lacks substantial capacity to appreciate the criminality (wrongfulness) of his conduct OR the ability to conform his conduct to requirements of the law MUST BE THE RESULT OF MENTAL DISEASE/DEFECT You dont have to know, just appreciate

Lacks substantial capacity is diff than inability to E.g. pyro hypo he appreciates the criminality, but lacks substantial capacity o Lacking substantial capacity vs. involuntariness Pyro hypo suppose no mental disease, and D was sleep walking when he sets a fire Voluntariness argument arson requires voluntary act, and D was sleep walking, so his lighting of fire wasnt voluntary Mental disease/defect could = automatism/involuntariness o Hinckley just use MNaghten cognitive test, not the volitional test Dont trust jury/court to deal with volitional inability o Appreciate under MPC D kills his friend, confesses to it. He know its illegal/wrong, but Satan commanded the death of the pure/virtuous to bring about the reign of evil, so D thought it was his satanic duty to kill his friend in order to bring about reign of evil. D = schizophrenic raises insanity defense Maybe D feels the act was right emotionally reverse presumption right = wrong, and wrong = right Knows whats morally right/wrong, but doesnt appreciate it MNaghten cognitive test no insanity (he knew what he was doing was wrong, both morally and legally) And theres no deific decree exception (Satan told him, not G-d) Under MPC appreciates test (effective/emotional motivational test) he knows whats right and wrong, but his delusion inverts the two good = bad, bad = good Could get insanity plea

ATTEMPT
In choate crimes not crimes in and of themselves, but are part of other crimes o Must solicit, attempt, or conspire to do something Most jurisdictions punish less severely bc theyre attempts, so they havent caused harm o Although they didnt cause harm only bc something interfered with Ds actions o D is still culpable/dangerous, so we still punish MPC 5.01(1) criminal attempt o Actus reas = 2 kinds Completed attempts D did everything he needs to do to commit the crime, but failed for some reason We dont worry about actus reas, just focus on mens rea Incomplete attempts D was interrupted before he could do everything he needed to do to commit the crime Focus on both actus reas and mens rea (whether D crossed the line b/w mere prep and an actual attempt) Hypo D jumps a fence, chains himself to a tress to protest land not becoming public and used for a nature preserve

D wants to be arrested/prosecuted from criminal trespass Sheriff wont arrest D bc the land was deeded to the govt to be used for a nature preserve the week before o COMPLETED ATTEMPT MPC 5.01(1)(a) conduct that would constitute the crime if the attendant circumstances were as D believes them to be Hypo D shoots at his wife with intent to kill her. His daughter had replace the bullets with blanks, though, so the wife isnt hurt. COMPLETED ATTEMPT o MPC 5.01(1)(b) D did everything he need to do to commit the crime (pointed, shot the gun) D did what = necessary to bring about a particular result Hypo D wants to rob a bank. Security guard finds out, arrests D when D enters the building (before D even tries to rob anyone) INCOMPLETE ATTEMPT D was interrupted o MPC 5.01(1)(c) for incomplete attempts D committed a substantial step toward committing the crime o Mens rea Hypo D operates switch at RR yard. He intends to kill the engineer of an express train that always uses track 1 @ 12 noon, b/c the engineer had an affair with Ds wife. At 11:58, D switched a boxcar onto track 1. D = prosecuted for attempted murder in 1st degree. MPC 5.01(1)(b) completed attempt (D did everything he needed to do to kill) o Boxcar moving isnt an incomplete attempt, b/c D still did everything he needed to do to kill the engineer Hypo same facts, but D accidentally pulls the wrong lever. D is charged with attempted manslaughter/attempted negligent homicide. Contradiction to attempt to do something negligently o Attempt requires purpose/knowledge o Negligent/reckless implies you didnt know But you should still be punished for culpable course of conduct o D did purposefully pull a lever (just the wrong one) We punish someone for less severe crimes when they attempt to commit a crime, but require a more culpable mens rea (i.e. D knowingly/purposefully did X) o If D negligently does something (e.g. if D accidentally switched the wrong lever, and he had no intent to kill the engineer, that = negligent), we wont punish him unless something actually results from his neg./reckless conduct We care about harmful results bc: Deterrence o (ASK SOMEONE ABOUT THIS LAST PART ON 4/20) State v. Lyerla Pickup truck with 3 females inside. They kept preventing D from passing them on the highway to mess with him. When they pulled off the road, D pulled to the side

and waited for them to come back on the highway. When they passed D after coming back on, he shot at them killed 1, missed the other 2. o 2d degree murder allows conviction on recklessness But attempt = specific intent crime Requires purpose/knowledge Cant intend to do something recklessly (or negligently) o Under MPC complete attempt (pointed gun, shot it) 2d degree murder = result crime (has to result in death to be murder) MPC 5.01(1)(b) o Acquitted of 1st degree murder, so he clearly didnt have purpose of causing the death o with belief that it will cause such result implies knowledge (tough, bc he = acquitted of 1st degree) Hypo D wants to kill someone who he knows will be on a plane. He puts a bomb in the guys suitcase, but it never goes off. Guy finds it in the hotel. Ds charged with and pleads guilty to attempted murder of the guy. Prosecutor wants to charge D w/ attempted murder of passengers No purpose to kill the other passengers Maybe belief that it would result in the deaths of others o Likely that D believed others would die when the bomb exploded Were not requiring actual knowledge that D knew itd happen Especially considering the bomb didnt go off others deaths didnt happen Attendant circumstances Acting with the kind of culpability otherwise required for commission of the crime o Hypo 2 ppl meet @ club, they go to Ds home, undress, get in bed. D asks her age, shes 16 (young enough for statutory rape). D gets dressed, takes her home. Ds charged with attempted statutory rape. Incomplete act 5.01(1)(c) Took a substantial step took girl to Ds home, got undressed, got in bed BUT D had no intention of having sex w/ someone her age o Not purposeful or with knowledge Prosecution will argue statute only requires recklessness o acting w/ culpability otherwise required for commission of the crime statutory rape requires recklessness; purposefulness isnt requisite mens rea o Hypo tour group in White House. D leaves the group, heads toward living quarters. Hes arrested before getting to the stairs. Feds find letter threatening the pres on D. D admits looking for someone to deliver the threat (communicating such a threat = felony). D didnt know he was going toward living quarters, but knows he left the area open to public. Ds charged with attempted trespass (MPC 221.2(1))

No attempt b/c he wasnt intending to trespass BUT D = reckless entering that area Have to argue MPC 2.02(3) applies o knowing applies only to knowing hes not licensed/privileged; the part about being in a place where hes trespassing requires recklessness Issue Take MPC 5.01(1), apply it to MPC 221.2(1), and decide whether were abiding by MPC 2.02(3) or MPC 2.02(4) o Hypo same facts, D is charged w/ attempted communic of threat to pres Incomplete attempt hasnt taken all steps he needs to deliver it But D took substantial step left the tour, was in White House with a threatening letter Last act requirement dont apprehend D until hes about to commit the last act that would constitute a crime I.e. have to be in front of the pres, about to hand him the threatening letter People v. Murray (p. 670) o D charged with attempt to contract an incestuous marriage with his niece D made declarations that he wanted to marry her, arranged for a magistrate, eloped with his niece just needed magistrates blessing o Court D merely prepared Had to be in front of magistrate, about to take vows before he did a crime Policy concerns w/ last act o Be sure that the guy being punished actually presents a threat of social harm Social harm apprehending ppl who just have bad thoughts, but havent amounted to any negative social conduct Societal apprehension of criminal conduct o Other hand, concern about drawing the line too late Puts a burden on cops; maybe more attempts would come to fruition o Subjectivists need some indication of criminal attempt (overt act) Problem we can ID dangerousness well before the last act o Objectivists focus on actus reas (i.e. make sure the guy isnt innocent) Problem social harm could occur, based solely on actors conduct, well before the last act Other doctrines How much remains to be done before crime is to be completed: o Physical proximity overt act required for attempt must be prox to the completed crime, or directly tending toward the completion of the crime, or must amt to commencement of the consummation o Dangerous proximity the greater the gravity and probability of the offense, and the nearer the act to the crime, the stronger is the case for attempt

o Indispensable element emphasizes and indispensable aspect of the crime over which the actor hasnt yet acquired control how much has already been done in order to indicate an individuals criminality: o Probably desistance attempt if in the ordinary/natural course of events, without interruption from an outside source, itll result in the crime intended o Abnormal step step toward crime that goes beyond the pt where the normal citizen would think better of his conduct o Unequivocality test when actors conduct manifests an intent to commit a crime MPC test Act must be a substantial step toward the criminal conduct (conduct) o Conduct that removes us from thought-crime concerns (i.e. that were punishing thoughts) o Proximity (conduct must directly tend toward completion of a crime) Substantial step must strongly corroborate criminal purpose (strongly corroborative act) o Step must be connected to ultimate criminal purpose o Unequivocality (manifests an intent to commit crime) Courts considerations: o Is the act dangerously close to causing tangible harm? Wed want cops to intervene, then o Seriousness of the threat/harm More serious it is, the less it takes to show harm Evidence of Ds state of mind McQuirter v. State (p. 674) YES attempt (to rape) Ms. Allen out with her kids. They pass by D in his truck. D opened the door, said something to her, allegedly. D followed a few ft behind Ms. Allen and the kids, so they went to a friends place and stayed there 30 min until D left from in front of the house. o Alleged testimony from D that he intended to pick up a white woman. o D = black, victim = white Facts from which the jury may reasonably infer that the crime has been committed People v. Rizzo (p. 676) NO attempt Ds charged with attempted robbery o Ds wanted to find a specific guy with a payroll for his company, rob him o Went to look for the guy, but never found him, just drove around Cops knew of Ds plan, followed them around o Ds couldnt possibly commit the crime of robbery until they found the victimto-be Evidence corroborative of crim intent

Consider those acts only as tending to the commission of the crime that are so near to its accomplishment that in all reasonable probability the crime itself wouldve been committed, but for timely interference o i.e. some form of physical proximity giving Ds a good opportunity to commit a completed crime Corroborating evidence need info thats corroborative of the criminal purpose United States v. Jackson YES attempted robbery o Ds went to location twice, had paraphernalia to commit the crime o Corroborating evidence by co-conspirator (informant) United States v. Buffington NO attempted robbery o Ds went to location, had the paraphernalia to commit the crime o No corroborating evidence no informant testimony admitted So we dont know who D intended to rob couldnt then be guilty of attempting to rob a fed bank o Abandonment Not exculpatory once youve crossed the line into attempt Exception for perjury even after youve made false statements, you can abandon them before they materially affect a proceeding MPC 5.01(4) renunciation of criminal purpose depends on the reason cant just be bc you think youll get caught Some courts dont say abandon say that the persons act didnt cross the line o Solicitation Trying to get someone else to commit a crime for you Some jurisdictions, can be guilty of both solicitation and attempt o Impossibility Common law distinguish b/w factual vs legal impossibility Hybrid legal impossibility acknowledging that the acts could pt to both legal or factual impossibility claim In those places where impossibility = defense: Factual impossibility is never a defense Pure legal impossibility is always a defense Hybrid legal impossibility is sometimes a defense Factual impossibility: E.g. you jump a fence, intending to commit civil disobedience. Turns out the property isnt private, so youre not trespassing you mistook the fact that the property = private E.g. you try to shoot someone, but the gun is filled with blanks o Mistook the fact that the gun was filled with blanks instead of bullets Booth v. State (p. 694) D (attorney) went to buy a coat from his client. Client told D he stole the coat. Had D done what he intended to do, he wouldnt have committed a crime o D thought the coat was stolen, but under the circumstances, it wasnt stolen

So if D bought the coat, he wouldnt have been receiving stolen goods = legal impossibility Shooting blanks hypo vs. Booth Both Ds intended to commit a crime, but were kept from it by something outside their control Maybe legal impossibility as defense in both cases o Legal status of some relevant circumstances to the crime makes a diff Hypo D intends to pickpocket someone, but he ends up grabbing something thats his already If D did what he intended to do, he wouldnt have committed a crime bc the object was his Rational motivation test Mistaken beliefs are relevant to what the actor is trying to do if they affect his incentive in acting. o This affect his incentive if knowing of the mistake would give him a good reason for changing his course of conduct This requires focusing on Ds motive we dont like doing this Fundamental issue with impossibility defense: It was just a fortuity that the crime wasnt committed o Theres still a culpable, and arguably dangerous, defendant MPC 5.01(1) no more hybrid impossibility Only pure legal impossibility is a defense MPC 5.05(2) mitigation If circumstances were as D believed them to be, D could be guilty. But these circumstances are so extraordinary that D couldnt present a danger. o D is still culpable, but there = mitigating circumstances. E.g. D tries to sink a battleship with a popgun, and its a crime to sink a battleship. Lady Elden hypo Crime to smuggle French lace into U.S. Lady Elgen buys cheap English lace, thinking its French, smuggles it into the U.S. o Under circumstances as D believed them to be attempt under MPC Lady Elden buys French lace, but its not a crime to buy it and bring it to U.S. o Can existence of this criminal prohib be considered an attendant circumstance, such that belief that the prohib exists renders the conduct unlawful? o Cant punish ppl under laws that = pure figments of their unlawful imagination WHAT TO DO WITH IMPOSSIBILITY CLAIMS: Ask what D thought he was doing Write down elements of the crime with which D was charged Would what D thought he was doing satisfy the elements of the criminal statute? o If no, then thats legal impossibility Hunting hypo

Misdemeanor to hunt any time other than b/w Oct. 15-Nov. 30. Mr. Fact and Mr. Law go hunting on Oct. 15. Mr. Fact thought he was hunting on Sept. 15. Mr. Law knew he was hunting on Oct. 15, but thought hunting was only allowed in Nov. o Mr. Fact = guilty Under the circumstances as he believed, it was Sept. 15, satisfying the elements of the crime. o Mr. Law = not guilty legal impossibility Under the circumstances as he believed, it was Oct. 15, so he was okay within the statute. Irrelevant that he thought he was doing something illegal. He hasnt shown a willingness to do anything that society condemns Maybe hes not upstanding, but he hasnt gone against society