Professional Documents
Culture Documents
Stuntz
Spring 2002
I. Criminal Law
Part 1 of Course: Criminal Law
Definition of crimes & defenses – what is a crime, what’s not a crime.
A. INTRODUCTION
B. ACT AND INTENT
C. INCHOATE CRIMES
D. RAPE
E. HOMICIDE
F. DEFENSES
G. LEGAL STRUCTURE AND INSTITUTIONAL DESIGN
A. INTRODUCTION
1. Why punish criminally? What are the purposes of criminal liability?
Illustrated through Dudley & Stephens – the English Cannibalism case (4 men stuck at sea for 20
days w/ no food or water, they kill and eat one (the boy))
A. Retribution Theory
- Punish b/c it’s morally right to punish criminals
- Drws the line between bad and VERY bad. Not just right/wrong.
B. Utilitarian Goals
- Deterrence theory
- What are deterrents?
- Stigma of being a criminal. => CHEAP. BUT, if it doesn’t reflect what society
really thinks is reprehensible, then it loses its deterrence effect. Evidence show:
people abide by the law when they respect it (it’s perceived as legitimate)
- Take away liberty (incarceration) => $$$
- Fines/take property (less common today)
- Death => $$$$$
Purposes of Punishment.doc
Play between deterrence value of stigma v. incarceration. Likely, stigma has declined as
incarceration has risen, over past 20 years.
(a) Act
Must have a voluntary act or qualifying omission in order to have a crime. (Voluntary – just
means that if the police literally make you do something, then it’ not voluntary). Conduct is
important need to find affirmative physical actions.
Arguing omissions cases: (1) Focus on the choice – frame the choice in your light, what one can
infer from the facts. (2) Tie it back to the doctrine & one of the specific categories imposing
legal duty.
• INTENT: in many ways, this line goes to INTENT. What can you infer (in terms of
mental activity) from the act OR omission? Can you get inside the criminal’s mind? The
omission may provide key insight as to intent, hence, the omission really must be voluntary.
Issue: Is framed in terms of duty to act – did wife have a duty to care for her husband,
specifically a duty to obtain medical attention for Konz when it became apparent that he was
suffering from insulin debt? Holding: Yes. One spouse owes the other a duty to summon
medical aid when the other is in a condition necessitating the need for immediate medical
attention. Moreover, since Erikson was an accomplice, his culpability = Mrs. Konz’s.
Furthermore, there is sufficient evidence to establish proximate cause. Here, the court finds
that a duty of a spouse to obtain medical assistance for her husband is imposed by law.
How would Stuntz argue it for D? Switch focus – not did wife chose to let H. die. Rather,
H chose to stop taking insulin, wife just repected that choice. Doesn’t matter whether she
intended to let him die or not.
Notes:
(1) People v. Robbins (NYS 1981): similar facts (except there was no active prevention of
her from taking insulin) – but court dismissed indictments against the husband of deceased
and the preacher who convinced her to forgo insulin. The court recognized a duty to provide
medical care for one’s spouse, but not when a competent adult has made a rational decision to
eschew medical assistance. (note: this should have been the real focus of the debate in Konz)
Ct. said that such a rationale would be in direct conflict with the related rule that an adult has
a right to determine not to undergo medical treatment.
BOTH SAY: Omission = criminal liability ONLY WHEN there is a legal duty to act. Mere
moral obligation isn’t enough. Failure to act suffices for criminal liability only when it
breaches a legal duty imposed by the statute itself OR other sources of law (including
common law).
What choice can you infer? He at least arranged for help, didn’t leaver her for dead.
Doctrinally, SECLUSION would be the best argument for the Government. Need more info,
but you can argue that he secluded her from help.
People v. Oliver (1989)
Defendant brought Carlos, whom she met in a bar and was already drunk, back to her room.
He did heroine (known to but not with her) and passed out, she left him there, left the apt.,
came back later, hauled him outside and left him outside overnight. The court found that she
did have a duty to prevent him from harming himself, created when she took charge of him
by taking him from a public place (where others could render aid) to her private home.
Court held that she had a legal duty to provide food, procure medical attention for, or
notify someone of her aunt’s gangrene. Evidence proved that she had even spoken with
neighbors around the time her aunt was close to death but failed to mention her condition.
Causation? The court says that, by not feeding/getting med assistance she at least sped
up her death (& may have caused it), even if the aunt would have died anyway.
Jones v US (1962)
D, who was entrusted with the care of two infants but not contractually bound to look
after them AND was not their actual parent, the jury did not find that he had a legal duty
to care for the child. Without a verdict to indicate that the jury found such a duty, the
court wouldn’t impose one. * Turns on – no duty b/c no contract or other type of
relationship giving rise to duty (maybe have choice, but doesn’t fit in doctrine)
General Duty to rescue – fodder for hypotheticals. In real world, Stunz thinks duty case
would turn into a question of whether it looks more like Instan or innocent passerby case.
1) Mens rea = “The act is not guilty unless the mind is guilty”
Historical move from liability based on harm caused (strict criminal liability) to modern
liability based on intent at the time – the D’s state of mind at the time of the crime (menu).
With criminal law, it’s not one “reasonableness” standard, rather, there is a list of possible
standards, courts over time have chosen crime-by-crime what the right standard is.
Note, in general, crimes have been set forth in statutes (codified), but mostly have been
defined in terms of requisite conduct, with little said about intent (look to CL for requisite
intent). NOT true of MPC MPC thoroughly set forth both conduct and intent (shifted
power from judges to legislatures).
P. 117 lots of words used to describe the required state of mind for a criminal
offense. Can’t be taken literally, must be interpreted in light of the situation.
Move from general to specific intent. Eg “malice” – does it mean general
“wickedness” OR something more? Today, courts have moved toward a more focused
state of mind.
Requiring intent is a way for requiring the government to have to prove conduct.
2) The menu:
Choices for mens rea:
(a) Strict liability (NO mens rea) E.G., speeding. One place where you really can
reliably infer culpability just from the action. All plausible claims about your
mental state are bad. Also statutory rape (historically, this was more clear b/c
age was 10 or 12, was not exculpatory to say you thought she was 11 not 10).
Generally, though, it’s rejected rare to define conduct sufficiently that it
separates the bad from the really bad, hence, you need to prove INTENT.
(b) Holmes: simple negligence (torts). Reasonable person standard. What would
have happened if this were sufficient? Basically, there would be too many
criminals in the world (all people in car accidents would be drivers); would
diminish the stigmatizing effect from criminalization, including the marginal
impacts for worse crimes (over-using “moralism” decreases its impact); and
would overdeter some things (like driving).
(c) General intent intent to be “bad” (Prosecutor in Faulkner). Generally
rejected, but FELONY MURDER is one place where this persists. Why?
Deterrence would be “off”
(d) Intent or Recklessness intent to cause the specific harm OR recklessness gets
you criminal liability (foresight + indifference), but not mere “wickedness”
(Cunningham App. Ct.). Recklessness involves actual foresight.
(e) Specific Intent. Purposeful, not just foresight. (Morissette). Eg, theft. Generally
limited to a small list of crimes.
ISSUE: Did his “general” intent to act maliciously satisfy the intent requirement?
Holding: NO. p. 115 – 3 opinions disagree on why, but generally they all deemed that “intent”
could be satisfied if he knew or should have foreseen the consequences of his act (either the
initial stealing OR, as the 3rd opinion suggests, the lighting of the match would suffice b/c done
within the context of a criminal act). But, generally, burning the boat is not a probable or even
foreseeable consequence of stealing a bit of rum.
Issue: (1) Is malice to be taken in a vague/general sense (i.e. “wickedness”) or does it have a
more specific and directed meaning? (Is “malice” as to asphyixiation imputed by “malice” from
stealing the gas meter in the first place?) (2) What is standard of “intent” is required for criminal
liability for D?
Holding: p. 123 – Malice requires an actual intention to do the particular harm that was in fact
done OR recklessness as to whether such harm should occur (foresees the harm yet takes the risk
of it – i.e. “this could kill you but I don’t much care either way”). Ill-will towards the person
injured (ie MOTIVE?) is not required, but foreseeability IS (foreseeability imputes the intent).
“In our opinion, the word ‘maliciously’ in a statutory crime postulates foresight of consequence.”
=> Thus, his “malice” arising from stealing the meter in the first place is not enough for criminal
liability as to the consequential harm.
The court says that the JURY must decide whether the D foresaw that removing the gas meter
might cause injury to someone but nevertheless removed it.
• e.g.: The rationale for mens rea in theft: requires an intent to effect a permanent
deprivation of property. INTENT TO COMMIT THE CRIME, not just the act of taking
something. Choice 1 – you take something, then = theft. BUT, momentary loss of
property or conveyance of property through messengers would leave them vulnerable to
“stealing” and is not what punishment for “stealing” is intended to guard against. Choice
2 – wait til end of person’s life or a “long” deprivation then charge (i.e. wait til the
conduct literally satisfies the definition of the crime). Not satisfactory either, not
practical and the property could be damaged/used up. Choice 3 use “intent” as a proxy –
punish the attempt to permanently deprive one of his property, that he thief would have
retained the stolen goods. THUS, the crime doesn’t require mere intent to deprive one of
his property, but the specific intention to permanently deprive one of his property. So,
the act of taking the property alone isn’t enough to automatically impute the specific
intent – jury has to decide if D had the mens rea.
Conduct: the acts or omissions required to commit an offense. May be general or very
specific – i.e. murder, the entire universe of conduct leading to another’s death satisfies the
conduct requirement while for burglary you need “taking.”
Circumstance: external facts that must exist in order for the crime to be committed. EG:
property must belong to another.
Result: any consequences of defendant’s conduct that are incorporated into the definition of
the offense. Eg: death for murder. Implies causal relation is required between D’s conduct
and the prohibited result.
(3) NOTE: there may be additional mens rea components required by the definition of the
offense, such as with theft. How do you tell?
Do this by asking what terms of the statute require the government to prove any
facts about Ds behavior or outside world but NOT facts about what was going on in
his head. What are the external facts?
Then, if another phrase defines a free-floating mental state, not attached to any
conduct, then it’s an additional motive.
(And, look for commas)
EG larceny:
“taking and carrying away” -- did this conduct occur? What culpability term applies?
“the personal property of another” -- did these circumstances occur? What culpability term
applies?
“with intent to effect a permanent deprivation” – was this additional, specified intent present?
MPC: emphasizes the cognitive says PURPOSE is always worse than KNOWLEDGE.
Focuses on the degree of awareness, intentionality; it’s essentially subjective.
Hand formula emphasizes the VALUE you place on things, i.e. “wicked” and “malicious” and
“evil mind” are on the value ladder. A mind that doesn’t attach value to the life being taken more
be MORE evil. It’s external to what’s going on in Ds head, it’s more objective. Take a standard
of proper behavior and judge how far below it Ds conduct falls.
These ladders are sometimes in conflict (e.g., husband kills wife with cancer (probably terminal)
vs. guy who sprays gas station with bullets & happens to hit a bystander.
Common law – fuzzes the choice, doesn’t clearly pick either.
Death penalty cases? Tend to correlate more with the Hand formula, not the culpability ladder.
(notes 2/6/02) eg, gas-station spraying guy is farther up the hand ladder, but lower in the MPC
ladder than guy who kills wife. BUT, the gas station guy gets the death penalty, not husband.
General Intent: IF offense requires only general intent, then a mistake of fact is a defense
ONLY IF it’s an “honest and reasonable” mistake – reasonable under the circumstances (D
has to prove he wasn’t negligent in making the mistake).
Specific Intent: IF offense requires specific intent, then a mistake of fact is a defense if it was
ACTUALLY (“honestly”) made, regardless of whether it is reasonable.
General intent elements of specific intent crimes: If the mistake was relevant to an element
of the offense other than specific intent, the courts followed the specific intent rule.
(Yermian)
Examples
Specific-Intent crime: Green v. State. guy killed hogs in the woods, the hogs belonged to
someone else. He claimed that he thought they were his. General intent (to kill the hogs) is
satisfied, but jury could find, if he actually thought the hogs were his, that he lacked specific
intent to permanently deprive another of his property.
General -- State v. Walker: Dad and Grampa abducted boy, girl who they thought were the
Dad’s kids. The girl wasn’t – when they realized it they dropped her back off at school.
Abduction is a general intent crime – just the act of taking a kid is enough, no specific intent
required. SO, D has to prove that the mistake was an honest and reasonable one – that D was
not negligent in making the mistake -- “in order to negate criminal intent, the mistake under
which the defendant was acting must have been made in good faith and with due care.”
Culpable negligence could be enough to impute intent – if they were honestly mistaken but
shouldn’t have been but for the exercise of due care, then intent is imputed.
The GAP:
Prosecutor has to prove:
Specific intent – either purpose or knowledge
General intent – recklessness.
Why is the gap there? The gap is fudged by judges – either they require you to PROVE your defense,
OR they can just say that the Prosecution simply hasn’t PROVEN its required mens rea.
People v. Marrero
D, a federal corrections officer, was carrying his gun (loaded) on him in a club. Trial court
let him off b/c the law under which D was indicted was ambiguous, but the appellate court
held that the intent of the law was to allow officers possession only when duly related or
authorized by law. He was convicted at the remanded trial.
Hopkins v. State
Signs prohibited advertising marriage – Hopkins consulted the state’s attorney’s office and
was told his signs were okay, few years later he was indicted.
State v. Striggles
Distributors of machines got certification from a municipal court that the machines were not
gambling devices and sold them to Defendant, who placed them in his restaurant. The state
supreme court later decided they were gambling devices and convicted D for having the
machine on his premises.
=> These last cases: why are they right? (1) if something is a borderline case, then if you let
someone off b/c he sought counsel, it makes the lawyers the arbiters of the law, not the
judges. I.e., there is no room for individual interpretation b/c it would amount to statements
about the law and subjectivity in the application of the law. “Whenever D thought the law
was thus and so, he would be treated as if the law were thus and so, i.e. the law actually is so
and so.”
2. Mistakes of Non-Criminal Law
Morrissette’s other claim
Could have said that he made a mistake about the law of property abandonment (thought
property was abandoned, mistaken because under Plaw G can’t abandon property. AS
PROSECUTOR, though, you say that he was in fact mistaken about WHO property belonged
to (US), thus, it was a mistake of CRIMINAL LAW.
No determinacy about the categories, no analytic formula, it’s a SHELL game. Generally it’s
a normative instinct that determines the outcome. Especially if the governing legal rule can
be located inside OR outside of the criminal code.
all mistake of law cases turn into classification arguments. Does 2.04(1)(a) OR
2.02(9) govern your situation (mistakes of fact/non criminal law VS mistake of criminal law)?
2.02(9) mistakes about criminality are no defense.
2.04(1)(a) mistake of fact or law is a defense if it negates mens rea.
2.04(3) mistakes of law are a defense if D relied on an official statement.
Majority: says this is a regulatory measure in the interest of public safety, no mens rea
required (no specific intent/knowledge).
Concurrence says, I agree, but for a different reason. Established that, “the existence of mens
rea is the rule or, rather than the exception to principles of anglo-american criminal
jurisprudence.” He looks at the common law foundations of the hand-grenades law, says it
has no mens rea requirement.
WHAT DOES FREED SAY? if it’s a regulatory offense, then no mens rea required.
Litigation tactic is sorting: get your offense on one side or the other. Say it’s NOT just a
regulatory matter (can do this by focusing on penalties: if jail time, then there should be a
mens rea requirement) and that your client didn’t have all of the facts and rules necessary to
establish culpability.
=> default is, knowingly is the requisite mens rea. Strong presumption in favor of a mens rea
requirement. BUT, G can argue that this is just a public welfare/regulatory law. SO: if you
take Staples & Excitement together, you have to work pretty hard to get rid of mens rea
you really have to prove that “knowingly” is not a required element.
4. Summary:
• Mistake of FACT that negates a required mens rea is a defense
frequently exculpatory but not always, especially not if the conduct elements of a
crime are defined with sufficient precision (speeding)
• Ignorance or mistake as to the existence, scope, or meaning of the criminal law is not
a defense to crime.
Fine line: Try to place the mistake out side of the substantive criminal code,
inside the procedure code. Might not work b/c it’s still in the CRIMINAL code.
• 3rd kind of mistake – mistake as to relevant non-criminal law (shell game to make it
seem like a mistake of non-criminal law)
sometimes exculpatory, sometimes not. Idea is, suppose a crime is defined by
very bad conduct within a subset of very bad conduct: you don’t get off. BUT, if the
crime is defined more as a sorting-game, then you might have a defense. Try to place
the mistake within another area of law (property, etc).
If you are G and it’s determined that mens rea IS required, then go to malum in
se. This is something that D knew was really wrong, even if he may not have known
it was technically illegal
• Federal mens rea: includes idea of federal mens rea. Trying to argue that this crime
is one for which the G DOES (DOES NOT IF G) require mens rea. If mens rea is
required, then D must have knowledge of all relevant facts & legal rules necessary to
establish culpability. G will argue that this is a regulatory/public welfare offense for
which NO mens rea element is required & in fact they look like strict liability (even
mistakes of fact are not exculpatory for regulatory matters).
5. Intoxication
Intoxication is never a defense to a crime, Q is, is evidence of intoxication going to be admissible
for the purpose of negating mens rea? (note: G can always introduce evidence of intoxication if it
helps its case, so it only matters in assault, rape, and homocide)
C.L.
General intent crimes: intoxication is not relevant/admissible to negate intent
Specific intent crimes: (doesn’t arise much) Relevant to show lack of capacity to form the
intent.
MPC
2.08(2): intoxication is not relevent/admissible to negate recklessness (& hence NG)
2.08(1): intox is relevant to negate intent for mens rea standards higher than recklessness.
Why? Policy argument D’s would structure their conduct so as to avoid criminal liability (get
drunk THEN murder). Couldn’t keep the rule a secret.
D. INCHOATE CRIMES
1. Attempt
A. Rules governing requisite CONDUCT:
(1) Completed conduct cases:
CL = complete but not legally impossible. You did everything necessary to complete the
crime but failed to complete it (shoot but miss)
MPC = complete under the circumstances as D believed them to be (would be a crime if
the circumstances were as D believed). 5.01(1)(a) & (b).
(2) Incomplete conduct case:
CL: Proximity tests – focuses on what’s left to be done to complete the crime. P225.
Tries to make sure D has “done enough” to gain criminal liability. What would a
confession get you? Nothing – the conduct itself has to prove the intent, thus, it
reduces the incentive to do an interrogation. Devalues D’s testimony. This is more
of a res ipsa type test.
MPC: “Substantial step” or “strongly corroborative” 5.01(1)(c) & (2) – focuses on what
acts D has completed in the commission of the crime. This significantly broadens
liability for attempt (p.229). Especially in light of CONFESSIONS – if you get a
confession, then it will get you a conviction for attempt.
=> Thus, your view on CL vs MPC law of attempt may turn on your view of Miranda and
police interrogation.
So, you have to have PURPOSE with respect to the CONDUCT and RESULTS elements of
the crime, same mens rea with respect to the circumstances as is required for the crime.
(Note on circumstance elements: only matters with respect to statutory rape – the fact that D
didn’t know victim’s age is not exculpatory.)
MPC (p.243) means to require a purpose to engage in the conduct and result elements of the
offense, but the mens rea for circumstances is the same as would be required were the offense
completed. IF someone recklessly endangers another person, then it can’t be an ATTEMPT,
but it CAN be a misdemeanor for reckless endangerment.
People v. Thomas – anomaly under both CL & mpc. Attempt just requires the underlying
intent to try to commit the crime, plus substantial step.
Thacker v. Commonwealth – traditional rule. No attempted manslaughter b/c it’s a specifi-
intent crime.
What’s at issue? Line drawing – whether the RESULTS ought to matter, or, whether what
you did and what you thought when you did it ought to matter more. Especially in homicide
– somewhat arbitrary to draw the line at death, but it may actually be the best place to draw
the line (HITS v. misses by 1 ft? 2 ft? 10 ft? 30 ft?...) So you let off a few Thackers.
2. Complicity
First: D’s lose.
Statutory language: you commit the crime if you commit the crime or “aids, abets, counsels,
commands, induces, or procures.”
Mens rea: knowledge or purpose with respect to the aiding and abetting, plus mens rea for the
underlying offense. => Basically the Thomas rule. Loses in attempt but wins in complicity.
Conduct requirement:
EG—lookout cases. Government argues lookout was aiding and abetting. What’s the
argument for D? How equiocal was his conduct? In attempt cases, courts are wary of
classifying ambiguous conduct as attempt, not so with complicity. D’s get much more
benefit of the doubt in other doctrines, but not here.
Why? Deterrence reasons & Retributive reasons – may be no other way to deter the
organizer of a crime, retributive, the bad guy is the organizer, not the hacks who complete the
crime.
Rex v. Russell (567) Jury found: facts were that mother drowned herself & kids, father stood
by & didn’t stop them, also didn’t persuade or encourage. What is dad’s liability? Found
guilty of manslaughter
McGhee v. Virginia – lover murders Ds husband – at her “urging” & she tells him where the
husband will be. Ct convicted her as an “instigator or advisor” But is this right? Is
“inducing” really enough/unequivocal?
State v. Tally Judge Tally telegraphed message to prevent a warning from getting to Ross.
(573)
3. Conspiracy
Punishing agreement in advance of action. Thus, it’s like intent. It also functions as an
alternative to complicity (punishing one for completed conduct of another).
A. Conduct: Agreement + overt act. BUT ACT doesn’t have to be defendant’s act, can be any
of the conspirators.
B. Mens rea: Purpose to agree to the act PLUS purpose or specific intent with respect to the
underlying crime. Circumstance elements – some uncertainty.
Twist on Tally hypo (2/18/02): Acceptance of plan = agreeing to plan. D’s best bet focus on
the circumstances (didn’t want to disagree, feared for life). Can try to frame as an omission not
act. Why this rule? => Get at leaders of organized crime.
E. RAPE
CL Definition – traditional.
Conduct: (1) Sex (2) by force (3) overcoming resistance. (more than just non-consent or against
the will overcoming resistance) This was difficult to prove.
Mens rea: NO mens rea requirement STRICT LIABILITY. Why? The conduct is defined
such that it’s inconceivable to satisfy conduct and not have mens rea.
Thus, MENS REA is being litigated, next generation of litigation will be about
mistake. Rape litigation, in particular, highlights ACT/INTENT trade-offs.
Notes:
• He-said/She-said: large emphasis placed on this with rape. But on the other hand, this
comes up in a lot of areas of litigation. It’s just more exposed here. And note, that,
surprisingly, there is often not appreciable testimonial conflict – more a matter of
interpretation. Why? Rape draw boundary lines based on very fine differences in the factual
story.
• Incentives to lie: victims in rape cases have very little incentive to lie, D’s have much,
much higher incentives to lie.
• Miranda doctrine has impact in acquaintance-rape: Ds are saavy, much more likely NOT
to talk in the middle of the night when the police come pounding on the door.
B. Mistakes of Fact:
The mens rea/intent side of rape will be litigated more and more, as the line drawing between
acceptable and criminal conduct becomes less discernible.
Up for grabs, the legal possibilities are,
(1) Strict liability:
NO MEANS NO. Some courts have held non-consent to be a strict liability element– even
honest and reasonable mistake of fact is not exculpatory. (maybe MTS?)
Other notes:
Fraud in fact – fraud re whether sex is happening (rare)
Fraud in the inducement: not criminal. You can lie about anything to get someone to sleep
with you.
C. Statutory Rape
Garnett v. State
Age for SR: 16 is most common, 14, even 18 exist. So, the crime is NOT about child
molestation anymore. Hence, the conduct doesn’t necessarily impute intent, thus, states have
either introduced mens rea requirement with respect to age OR an age differential requirement.
F. HOMICIDE
(MPC 210.1) Criminal Homicide = murder, manslaughter, or negligent homicide.
A person is guilty of criminal homicide if he purposely, knowingly, recklessly, or negligently
causes the death of another human being.
A. The CL Doctrines:
Murder
First degree (generally)
1) Intent to kill, premeditated
2) Felony murder (see also MPC 210(b)) the recklessness is assumed if one is
engaged in the commission or attempt to commit a felony (violent felony)
Second degree (generally)
3) Intent to cause “grievous bodily injury”
4) “depraved heart “ Recklessness plus” (see also MPC 210(b)). Most statutes say
“extreme” and “recklessness.”
(to evaluate whether something is murder, ask (1) felony murder? (2) does provocation doctrine apply?
(3) is there the requisite mens rea (standard 3 or 4)? )
Manslaughter
1) Murder with provocation would be murder, but D was provoked, committed
murder in the sudden heat of passeion engendered by provocation.
2) Mens rea less than (3) or (4) above, more than negligence. highly debated about
what the requisite mental culpability should be. (p658) “reckless or negligent
behavior that was insufficiently culpable to constitute murder but more culpable than
ordinary civil negligence.”
3) Misdemeanor manslaughter – occurs in the course of a qualifying misdemeanor,
unlawful act not amounting to felony.
Provocation Doctrine
1) D is in fact provoked
2) Provocation was “legally adequate”
3) Reasonable person – no “cooling time”
The court held that there was insufficient evidence of premeditation and deliberation –
gave premeditated its literal meaning. In order to find “malice aforethought” to be a
first-degree murder, the intent to kill must have been the subject of actual deliberation or
forethought, carried on according to a preconceived design (brutality of the killing itself
≠ premeditation. Generally evidence of premeditation and deliberation fell into 3
patterns, most first-degree verdicts contained evidence of all three types or motive plus
one other:
(i) evidence of planning activity
(ii) evidence of motive
(iii) evidence as to the manner that showed a preconceived design to kill.
Types of provocation held sufficient: angry words + assault; seeing friend or relative
being beaten; seeing man in adultery with d’s wife. Insufficient were: words alone;
misconduct of child/servant; gestures; and breach of contract. Many courts still refuse to
give voluntary manslaughter instructions in cases of words alone. IF the activity could
constitute provocation, then the evidence would be admitted.
(3) Provocation formula: At common law, killings were presumed to proceed from
malice aforethought. Provocation arose in rebuttal of the implication of malice (since all
crimes punished by death). Thus, it had RETRIBUTIVE foundations, not deterrence-
based foundings. It was about responding justly to wrongs, not simply impulse. Today,
the doctrine emphasizes impulse, although juries may not.
IS COOLING TIME right? Should Gounagias lose b/c of amount of time that passed?
This doctrinal fact suggests that considered choices are worse than instantaneous choices.
Provocation doctrine says that impulse is not as bad as planning. But, trends in capitabl
punishment relate better to victim fault.
A. C/L: “legally adequate” idea retributive. It’s about victim blaming, the language
orients you to an analysis of the victim’s conduct.
B. MPC: “extreme emotional distress” is key thus, “spontaneous” matters. The analysis is
focused on the Defendant’s mental/emotional state. However, the second part of the
formula, the reasonable explanation, is somewhat subjective, somewhat objective. Trying to
be empathetic but place some limits on what emotional states qualify.
2 visions of culpability.
(5) The objective standard. [785]
Both cooling time and the sufficiency of provocation are measured by an “objective”
standard. But, how “objective” should the inquiry be, or, alternatively, what facts about
the incident leading up the crime are admissible?
Eg: Bedder – sexually impotent 18 year old killed prostitute who taunted him and kicked
him in the groin after he was unable to have intercourse with her.
What is the justification for the reasonable person standard? Does it go to deterrence &
the inability to prevent oneself from being the victim of a justified homicide? Should the
standard for provocation actually be subjective?
Issue in this case: What is the standard? Objective or Subjective? Ct. rejects the idea
that the reasonableness of the explanation or excuse must be tested from the subjective
viewpoint of the defendant. Ct. says (797) – the ULTIMATE test, however, is objective.
There must be a reasonable explanation for the actor’s disturbance. It should be made by
viewing the subjective, internal situation from D’s perspective, and assesing from that
standpoint whether the explanation or excuse for his emotional disturbance was
reasonable. WHAT DOES THIS MEAN? It’s supposed to achive the MPC goal of
broadening heat or passion doctrine to apply to a wider range of circumstances while
retaining some objectivity.
THUS – the test is 2-part. (1) Was D, as a factual matter (subjectively) acting under the
influence of “extreme emotional disturbance”? (2) The Is there a reasonable explanation
or excuse?” -- this is more objective, trier of fact must look into the reasonableness.
HOWEVER, if the fact finder finds CAN find that the excuse is “so peculiar to the
defendant that it is unworthy of mitigation.” Thus, there is a lot of discretion for the fact
finder.
Bigger picture: The problem is, under the MPC formulation of provocation, Cassada gets
in the door. It’s significant. THUS, Casassa has the power to PLAN to make it look
spontaneous under the MPC rule. NOT SO under C/L formula – Cassassa has NO
chance of winning.
WHAT is DHM? Essex (801) versus Register(811). How is the intoxication relevant?
Essex v. Commonwealth
Drunk driver, fatal collision. Mental state is recklessness, so intoxication is not relevant. SO, the
CONDUCT is what the case is really about. Court talks about INTENT. He clearly did NOT
have purpose to kill – did not engage in volitional conduct or purposeful conduct, b/c he didn’t
know what he was doing (can try to back up – to getting in the car, but the crux of the conduct
comes down to when he actually crossed the line and hit the other car, so reframing won’t work).
The court doesn’t think it’s giving Essex an intoxication defense but it really is, because when it
comes down to how you explain the conduct, the intoxication means that he wasn’t being
purposeful – wasn’t trying to swerve, but it happened anyway. Thus, not inherently purposeful
conduct.
Holding: The evidence was insufficient to support a finding of malice, thus the convictions of 2nd
degree murder are vacated max conviction can be for involuntary manslaughter. Court
admitted the evidence of intoxication b/c it was relevant to a determination of the defendant’s
negligence.
ESSEX is the majority rule
People v. Register
Guy gets drunk, goes into a bar, shoots his friend at close range. This case is also really about the
NATURE OF THE CONDUCT. Regardless of whether Register was drunk, his conduct was
obviously purposeful (at least recklessness plus)
Holding: Court rejected the admissibility of evidence of intoxication to negate the degree of
recklessness required for a murder conviction. Intoxication evidence should be excluded
whenever recklessness is an element of the offense.
(2) everything else – tend to be about neglect cases (Worthington). What does malice mean
for sober defendants? => grossly devaluing human life. Gross deviation from the
standard of care of an ordinary person.
F. Causation: [819]
The standard doesn’t come from MPC of any verbal formulation, although it is fairly uniform.
Lawyers argue the cases as “bait and switch”. Start by talking about “but for” causation, then
switch & talk about “responsible cause” – fault.
G. Felony Murder
Issue is, do we care whether felons had the requisite culpability for murder? Or, is the general
intent bad enough? The “innocence” story is not very innocent.
FM criminalizes behavior that absent the rule would NOT be an independent homicide offense –
D will be guilty of murder WIHTOUT proof that any of the traditional culpability standards were
satisfied. An entirely accidental death can get you murder – don’t even have to be negligent. It
applies STRICT LIABILITY to certain deaths.
Thus, it either (1) imputes mens rea – categorical mens rea. No matter how the death happens, D
had a substantial degree of recklessness with respect to causing death, D was culpable even if
there isn’t sufficient independent evidence to prove it.
Or (2) Substitute fault – “general intent” to commit the felony is bad enough.
A. Doctrine:
(1) What qualifies as a predicate felony? Inherently dangerous felonies.
Big 4: Rape, robbery, kidnapping, and arson.
Plus, in some states there is a catch all phrase & doctrine is subject to CL development.
How to argue:
Substitute fault is appropriate/inappropriate
Imputing mens rea is inappropriate: How common is it? Empirical evidence – if this
law is broken OFTEN & death isn’t caused, then can you really trust that D had the
requisite mens rea?
Do you want a rule or a standard?
(2) Merger: you have to say some felonies don’t qualify or else there will be no such thing
as manslaughter. ie.: Assault. If assault was, then EVERY murder would be murder 1,
because there are no murders without assaults. However, just b/c it’s not a felony
murder, doesn’t prevent you from STILL prosecuting for murder 1 – P just has to prove
it.
(3) Causation – more important than in other areas of crim law. Argue it, again, by
appelaing to the two basic concepts of felony murder (substitute fault or categorical mens
rea).
• Trigger-man always causation
• Partner of trigger man also always causation. If one of the 2 partners in the
crime kills the victim, the other is likewise liable for felony murder.
• COP or other is the trigger-man depends. Some say that, unless one of the
criminals fired the shot, felony murder doesn’t apply. May matter who the victim is
(i.e., if Ds partner, then obviously D didn’t intend to kill his partner (can’t impute)
B. Rationale?
Highly contested rule.
G. DEFENSES
1. Common Law developed
law of defenses is overwhelmingly judge-made. (Like with mens rea). So, even in
jurisdictions where it’s been codified, courts continue to treat the doctrine as a subject of
common law development.
Question: Since there are (now) NO COMMON LAW crimes (Courts can’t make up
crimes), why do they get to make up defenses?
2. Types
A. Necessity – encompasses the concepts of justification and excuse
B. Self defense
C. Duress
D. Entrapment
E. Insanity
3. Doctrines:
A. Necessity “choice of evils”
MPC: 3.01 – justification as an affirmative deense
MPC: 3.02 – justification as a choice or evils
can’t be a legislative purpose to exclude the justification
unavailable if D was reckless or negligent in bringing about the situation (like duress)
B. Self defense
• “Reasonableness” is moving to a more subjective standard, but this is the fighting issue.
1. Defendant reasonably believed (belief has to be honest and some version of
reasonable)
2. That he faced an unlawful threat (only available if victim wasn’t the aggressor)
3. Of death, serious bodily injury, or a qualifying felony (robbery qualifies. Serious
bodily injury is contested, but not very often b/c in practice the cases resolve into the first
or 3rd categories.)
4. The threatened harm was imminent (is what’s generally at stake in battered women
syndrome cases. And in Kelly, it looks like an easy case – why isn’t it?)
5. D’s response was reasonable
C. Duress
D. Entrapment
E. Insanity
H. LEGAL STRUCTURE AND INSTITUTIONAL DESIGN
1. Legislative supremacy
Allocation of lawmaking power – textualism vs. purposive interpretation debate.
No common law crimes – strong form of legislative supremacy. Except for
CONSTITUTIONAL law – Constitutional regulation of criminal law, which has focused almost
entirely on the procedure and not at all on substance.
2. Prosecutorial Discretion
Bedrock rules:
Prosecutors have unreviewable discretion Attica, Armstrong, Wayte.
(1) Attica (912): No judicial review of prosecutors’ charging discretions.
• Primary grounds for this is separation of powers doctrine
• Court also says, in the absence of legislative oversight, it would be too difficult for
courts to administer they would essentially become super-prosecutors.
• would give the public access to otherwise-confidential files.
• Arbitrariness would be inherent in any judicial decision to compel prosecution.
• In part b/c decisions about whether to prosecute involve complex resource
allocation decisions.
• See Also Armstrong p. 923
(2) Armstrong (921) What does D have to show to prove that he was prosecuted on the
basis of race? Result says, race discrimination is NOT an exception to Wayte and Attica
i.e., prosecutorial discretion is unreviewable & no claim of constitutional arbitrariness.
• What is the appropriate standard for granting discovery in a selective-prosecution
claim?
(1) Selective-p claim:
• It is not a defense on the merits to the charge itself, but an independent
assertion that the prosecutor has brought the charge for reasons forbidden by the
Cons.
• The standard for discovery is a demanding one, there is a strong presumption
of regularity in prosecutorial decisions, absence clear evidence to the contrary,
courts presume prosecutors have properly discharged their duties.
• Constitutional constrains on pros. Discretion does include equal protection
under Due process clause.
• Yick Wo: D may demonstrate that the administration of Crim law is
directed so exclusively against a particular class... with a mind so unequal an
oppressive... that the system of prosecution amounts to a practical denial of
equal protection.
• BUT requires CLEAR EVIDENCE to dispel a presumption that
prosecutors are NOT violating equal protection. D must show:
• Discriminatory effect MUST SHOW that similarly situated
individuals of a different race were not prosecuted. Successful claim: Yick
Wo.
• AND discriminatory motive/purpose.
(2) Standard for granting discovery
• Some evidence tending to show the existence of the essential elements of
the defense, meaning: evidence that similarly situated Ds of other races
could have been prosecuted but were not.
=> in this case, the “study” did not constitute sufficient evidence, b/c it failed to
identify (specific?) individuals who were not black & could have been
prosecuted.
• Fails b/c D failed to show the G declined to prosecute similarly situated suspects
of other races.
(3) Wayte: (930):
Protested (dodged) the draft, was prosecuted, claimed that he was “selectively
prosecuted” and “impermissibly targeted” for prosecution on the basis of their exercise of
1st amend. rights.
• G has broad discretion as to when to prosecute
• Selective prosecution claims are to be judged according to ordinary equal
protection standares
• Discriminatory effect PLUS
• Discriminatory intent (motive)
Wayte failed to show that he was selected for prosecution on the BASIS of his
speech, failed to prove INTENT.
• Big result: The law requires no minimum threshold level of enforcement of
criminal statutes even if G never enforces X crime, it CAN when it wants & D
can’t bring a claim for selective prosecution (unless can prove intent – unlikely).
Note: other societies – also don’t have judicial review. However, there may be social
regulation – different norms regulating discretion
IF no CL crimes & no prosecutorial discretion, how do courts restrain legislative & prosecutorial
power? => vagueness doctrine & doctrines governing statutory interpretation.
3. Vagueness Doctrine
A. When is a statute unconstitutionally vague?
Vagueness Doctrine Requires:
Statue is vague on it’s face (threshold)
(1) statute does not give too much discretion to COPS (i.e.,can’t just write statutes allowing
cops to seize/arrest but for which prosecutors cannot prosecute)
(2) The statute does not create too many notice problems,
(3) it does not reach a substantial amount of innocent conduct (really, 2 & 3 converge, since
notice does NOT come from reading statutes, rather, it comes from living in the world.)
THUS, a statute will be unconstitutional if it flunks ALL 3 of these tests, AND NOT JUST in
how it’s written, but in how it’s INTERPRETED by the courts.