Professional Documents
Culture Documents
Although aiding and abetting is not a crime, courts frequently discuss accomplice
liability in terms ordinarily reserved for criminal offenses.
For example
o The second partys assistance may be characterized as the actus reus of
accomplice liability
Can take the form of solicitation of the offense, active assistance in the
commission of the crime, encouragement of the offense, or failure to
prevent commission of the crime if the secondary party has a legal duty to
make such an effort
o The intent to promote or facilitate the commission of the crime is the mens
rea
The mens rea of an accomplice is sometimes described as a dual intent
The intent to aid the primary part, AND
The intent that such assistance result in the commission of the
offense charged
If found to be an accomplice, then youre guilty of the underlying offense for which
you were an accomplice to.
o Less intent required to prove this theory of liability
Complicity, Intention, Agency, and Forfeited Personal Identity
It has been argued that all definitions of the term accomplice as used by federal
accomplice liability statutes have nothing to do with the probability that the forbidden
result would follow upon the accessorys conduct
o Rather,
That they demand he in some sort associate himself with the
venture,
That he participate in it as in something that he wises to bring
bout it, and
That he seek by his action to make it succeed
Alternatively
o Guilt, as an accessory, depends not on having a stake in the outcome of the
crime, but on
Aiding and assisting the perpetrators; and those who make a
profit by furnishing to criminals, whether by sale or otherwise, the
means to carry on their nefarious undertakings aid them just as
truly as if they were actual partners with them, having a stake in
the fruits of their enterprise
State v. Reeves
Two twelve-year-old girls, Tracie Reeves (Reeves) and Molly Coffman (Coffman)
agreed to kill their homeroom teacher, Janice Geiger (Geiger), with rat poison. On the
date the girls planned to murder Geiger, Coffman carried a packet of rat poison to school
in her purse. During the bus ride to school, Coffman informed Christy Hernandez
(Hernandez), another student, of the plan and showed her the rat poison. Hernandez then
told her homeroom teacher, Sherry Cockrill (Cockrill), of the plot, and Cockrill in turn
told the principal, Claudia Argo (Argo). Geiger noticed the two girls leaning over her
desk when she entered the room. The girls noticed Geiger, giggled, and ran back to their
seats, leaving a purse next to Geigers coffee cup. Thereafter, Argo requested that
Coffman come to the principals office and the rat poison was found in her purse.
o Under Tennessee law, attempt requires that the defendant act with intent to
commit an offense and the conduct constitutes a substantial step toward the
commission of the offense.
The conduct does not constitute a substantial step unless the persons
entire course of action is corroborative of the intent to commit the
offense.
o The Tennessee Supreme Court appears to abandon the distinction
between mere preparation and the act itself.
Here, even though the girls did not actually place the poison
in the teachers cup, it is clear that they possessed the
materials to commit the crime at the scene of the crime and
the materials could serve no lawful purpose.
Under these circumstances, the jury is entitled, but not
required, to find the girls guilty of attempt.
Burden of Proof
Protect individuals from the state. From unfair judgment. To be fair.
o The burden is so intense to ensure that the trial is fair. That someone is undeniably
guilty. We do this rather than risk deprivation of an innocent individuals life.
Human justice is not perfect. We are not perfect. The burden of proof is so heavy because
there is only so much humans can prove, and we expect that to be fully utilized. This
ensures the best possible outcome by way of fairness.
o The appellate court standard of proof is not the same as the burden of proof.
They have a different set of criteria with which they view things.
They must break things down.
They must view the evidence in the light most favorable to the
prevailing party, and see if it stands up.
Define beyond a reasonable doubt
o A subjective state of near certitude of guilt.
So75% likelihood of guilt?
o Its not really quantifiable
So, how should jurors be educated on the subject before deliberation?
There is no prohibition in the Constitution concerning a court
defining reasonable doubt, nor are there requirements that they do
so.
Certain definitions of doubt, however, can violate the Due Process
clause.
Presumption of innocence throughout trial
o 5th amendment right to not incriminate
o Presumed innocent until proven guilty
o Having defendant testify isnt always good, may ruin the above.
o In Owens case, simply tried to prove he wasnt on public highway. Having him
testify was unnecessary. Unfortunately, didnt work.
Causation
Actual Cause (Cause-In-Fact)
o The But For Test
But for the voluntary act or omission of the defendant, would the social
harm of the offense have occurred when it did?
If the answer to this question is yes, that means the defendant is
not the actual cause of the harm.
If the answer to this question is no, that means the defendant is
actually the actual cause of the harm.
o With actual causation, we create a line-up of all the possible people who could
have caused the harm.
If something is a proximate cause, then it is an actual cause. If something is an actual
cause, it is not necessarily a proximate cause.
o Therefore, you must discuss actual cause first and then discuss proximate cause.
Sometimes, but-for isnt good enough. The test is not absolute.
o It may fail, and we may then turn to the
Substantial Factor Test
Two defendants (must be 2), acting independently, commit two
separate acts, and either of them would have caused the end
resulting harm individually, anyway.
Oxendine v. State
o Prosecutor used Acceleration, shouldnt have
Couldve used Aggravation; probably wouldve been best bet in this case
Substantial factor wouldnt have worked because the medical testimonies
wouldnt have proved it.
Other Causation Theories
o Acceleration
Act accelerated death (failed in Oxendine)
o Aggravation
Both acts, looked at concurrently, caused the death.
Proximate Cause (The Legal Cause)
o Now were in the area of deciding what is just and fair.
This also serves as a legal limitation on factual cause.
You cant hold everyone responsible! Itll go on forever.
Whenever you think about a proximate cause question, think about a line
going from the act of the defendant and the social harm. Then you look to
see if there were any other but for causes that occurred between the time
of the voluntary act and the time of the social harm.
If there is nothing that comes between the act and the harm, then it
is a case of direct harm. Thats an easy case; the defendant is in
the actual cause lineup by himself.
Often, however, there will be some intervening cause that comes
between the act and the harm.
Now we have a serious proximate causation issue because we must
decide who we want to hold responsible
There is no black letter rule for judging proximate cause.
However, there are a number of tests and standards for proximate cause.
Foreseeability
Coincidental and responsible intervening causes
o An intervening act is a coincidence when the defendants
act just put the victim in the wrong place at the wrong time,
in which case the defendant is not the proximate cause
unless the result was foreseeable.
On the other hand, an intervening act is a response when the act is a
reaction to the conditions made by the defendant for the victim, in which
case the defendant is the proximate cause unless the intervening cause is
unforeseeable and very highly unlikely, bizarre, and abnormal.
These are superseding factors; they were not foreseeable. There
is no black and white way to determine this. Analysis will
always vary.
o You stab A. You leave A on the road. A car strikes him.
You put him there. Still your fault
o You stab A. You leave A on the road. He is struck by
lightning.
Not your fault in anyway. Not foreseeable
(necessarilywhat about during a storm?).
There are also intervening factors.
Similar to superseding, but not the same.
Another party, foreseeable and possible, and the defendant is still
held liable.
Unless you can prove that the intervening action was also a
superseding one.
o You get shot. EMTs arrive. They botch fixing you. You
die.
Still defendants fault. You wouldnt have been in
that mess if he hadnt shot you. Ordinary
negligence is not superseding. Shit happens.
o You get shot. EMTs arrive. One has the Plague. He gives it
to you. You die.
He is responsible for your death. He intervened, and
his actions superseded the actions you took in
causing the death.
The Intended Consequences Doctrine
o Based on the intended consequences doctrine, we reach back to the person who
intended to cause the harm to find the proximate cause of the harm.
In other words, the mother got what she wanted, though not the way she
wanted. We will probably hold her to be the proximate cause of the death.
However, we must say probably because this is just one way to
look at proximate causation.
The Apparent Safety Doctrine
o The apparent safety doctrine says that once the danger from the defendant is no
longer present, we no longer consider that defendant a proximate cause.
The question is: did the victim reach apparent safety?
o Since she could have easily gotten into the house, we would assign proximate
cause for her death to her based on this doctrine
See State v. Rideout
Diminished Capacity
o A term used to describe two categories of circumstances in which an actors abnormal
mental condition, short of insanity, will occasionally exonerate him or far more often,
result in his conviction of a less serious crime or degree of crime than the original charge.
o There are two common law models of diminished capacity:
o Mens Rea Model
Functions as a failure of proof defense.
Evidence of mental abnormality is NOT offered by the to
partially or fully excuses his conduct, but RATHER as evidence to
negate an element of the crime charged, almost always the mens
rea element
o Partial Responsibility Model
Partially excuses or mitigates a defendants guilt even if he has the
requisite mens rea for the crime.
*Only used in a few states only for the crime of murder, to mitigate
the homicide to manslaughter.
o Model Penal Code 4.02 reminds us that medical or psychiatric evidence can be used
not only to prove insanity, but to prove the lack of a certain mens rea necessary for to
prove a crime
o On the other hand, when all of the elements of the crime have been proven, some
courts will reduce the offense from murder to manslaughter on the grounds that a
person should be found to be partially responsible for the homicide
o Its a case of partial diminished capacity rather than total loss of capacity.
Courts recognize that there are some people who are not insane, but also
are not fully responsible for their actions
Very few states recognize diminished capacity.
o The Model Penal Code, however, does recognize this concept.
Manslaughter, under the Model Penal Code, covers extreme mental
disturbance, not just extreme emotional disturbance
Any state that recognizes EMED implicitly recognizes the diminished
capacity doctrine
But most states have abolished the partial responsibility version
of the diminished capacity doctrine
Mistake of Law
UNDER COMMON LAW
o Not an excuse
o We dont care what your excuse it. Its not an excuse.
EXCEPTION
Ignorance of the Law as Defense Under Constitution
o Constitutional basis, and hardly ever enforceable
Due Process Standard.
o OR
o The defendants mistake of law must negate the specific
intent required under the statute, and in turn, will be
excused.
Also must not be an issue of morality.
Examples of Both
o Lambert v. California (Due Process, Narrow Defense)
o Cheek v. United States (Negate Intent, Broad Defense)
o Weiss v. United States (Negate Intent, Broad Defense)
UNDER MPC 2.04 (3)(a-b)
o A mistake of law excuse may be acknowledged by a court when
There was reasonable reliance upon an official statement of the law, later
determined to be erroneous.
An official statement can be a lot of things; see (3)
o Official letterheadformality. An official, formal
statement made in ones formal and official capacity.
Omissions
Exceptions to the voluntary action aspect of Actus Reus
o They can serve as a basis for actus reus, making you guilty of failure to act.
More specifically, omission involves a failure to engage in a necessary bodily
movement resulting in injury.
o As with commission acts, omission acts can be reasoned causally using the but for
approach.
o But for not having acted, the injury would not have occurred.
Recognized Categories of Omission
o Statutory Duties
o Status Relationship (parent-child)
o Contractual Duty (often to care for someone)
o Voluntary assumption of care/prevent others from rendering aid
Im gonna save that person from drowning! Everyone else backs off
You get out there then say eh, never mind.
They drown
Youre guilty.
o YOU created the risk of harm, and failed to act.
Proportionality Requirement
Deadly force may not be used to repel a non-deadly attack, even if this is the only way
to avoid injury
o Example:
Joshua unlawfully threatens to strike Donald, and Donald can avoid this
by pushing Joshua. Donald may be justified, as pushing is a non-deadly
response to a non-deadly assault.
However, if the shove would likely cause death or serious bodily
injury to Joshua, for example, if Donald pushes him into oncoming
traffic on a busy street, then the common law requires Donald to
suffer the assault, rather than risk the death of Joshua. Is this fair?
Solicitation
(Common Law)
Generally, it occurs when a person invites, requests, commands, hires, or encourages
another to engage in conduct constituting any felony, or a misdemeanor relating to
obstruction of justice or a breach of the peace
o Under Common Law, this is a misdemeanor, regardless of the grade of
the offense solicited
Until the adoption of the MPC, most state penal codes did not contain a general
criminal solicitation statute
o Instead, solicitation to commit specific offenses were prohibited
o As a result of the MPCs influence, many states now have a general
solicitation statute that covers all crimes, or at least, all felonies
However, many of these states have followed the common law approach of treating
solicitation as a lesser offense than the crime solicited
Mens Rea
o Common law solicitation is a specific intent crime
A person is not guilty of it unless he intentionally commits the actus
reus of the offensehe intentionally invites, requests, commands,
hires, or encourages another to commit a crimewith the specific
intent that the other person consummate the solicited crime
Example
o D1 is not guilty of solicitation of he jokingly suggest to
X1 that he steal V1s iPod, even if X1 actually does it
Actus Reus
o In regard to solicitation, this takes place when one person invites, request,
commands, hires, or encourages another to commit a particular offense
Only the request is necessary to prove the actus reus
For a solicitation to occur, neither the solicitor nor the solicited party
needs to perform any act in furtherance of the targeted offense
The solicitation is complete the instant the actor communicates
the solicitation to the other person
o What about uncommunicated solicitations?
Court holdings suggest that if the solicitation never reached the
intended solicitee, then no conviction can be made
Attempted solicitation may be possible, however
NOTE that at common law
o Asking someone to help you commit a crime is not solicitation. Only asking
someone to do it himself is solicitation!
o It is not solicitation when you are going to commit a crime yourself, and you
are merely asking for assistance
Solicitation requires that you as someone else to actually commit a
crime when you are not participating
Policy Considerations
Solicitation is controversial
o Some argue that it should not be punished because its too early to be a crime
In line with this reasoning, no common law crime (except attempted
solicitation) punishes conduct more preparatory to a substantive defense
than solicitation does
o The extremely inchoate nature of the crime of solicitation is evident if one
carefully analyzes the offense
Solicitation is essentially an attempted conspiracy
That is, when D tells X to commit an offense, he wants X to agree.
If he does, they have formed a conspiracy
o A conspiracy can exist long before a crime is actually
committed
Thus, solicitation is an attempt to conspire to commit an offensea
double inchoate crimeand thus, an attempted solicitation is a triple
inchoate offense
Inchoate- basic, rudimentary
Double-Inchoate- really, really preparatory
Triple-Inchoate- does this even count?
o Double and triple inchoate offenses bring us closer and
closer to punishing thought. You can ask someone to help
you kill someone, and if they never get the message, thats
a case of failed (attempted) solicitation.
o The contrasting view is that solicitations are dangerous because they are
attempted conspiracies
One rational for punishing conspiracy is that there is more danger in two
or more persons agreeing to commit a crime than in one planning to do the
same offense
Therefore, when a solicitor attempts to create such a dangerous
group, his conduct represents a threat that advocates of the offense
believe society has a legitimate interest in deterring
Moreover, it has been argued that solicitation posed special dangers not
inherent in conspiracy, one of which is that the instigator will be a
sophisticated operator, such as a gang leader, who will hide behind his
hireling(s).
This therefore justifies more severe penalties for a solicitation than
for conspiracy or criminal attempt
Solicitation (MPC)
The MPC provides that a person is guilty of solicitation to commit a crime if
o The actors purpose is to promote or facilitate the commission of a substantive
offense; AND
o With such purpose, he commands, encourages, or requests another person to
engage in conduct that would constitute the crime, an attempt to commit it, or
would establish the other persons complicity in its commission or attempted
commission
The MPC grades nearly all inchoate crimes, including solicitation, at the same level as
the target offense
The MPCs definition of solicitation is broader than common law in four ways
o (1) It applies to the solicitation of all crimes and not simply felonies and serious
misdemeanors
o (2) Under the MPC, one can be guilty of solicitation of an attempt
D solicits X into what D knows is Ys empty pocket. If X does as
requested, he is guilty of attempted larceny, and D is guilty of solicitation
of an attempted larceny
Under common law, and D would not be guilty of anything
because he didnt actually intend for X to commit larceny (he
knew the pocket was empty).
D solicited X to engage in specific conduct that would constitute an
attempt to commit such crime
Despite knowing the pocket was empty, he solicited X into
attempting to rob Y
o (3) The relationship of the solicitor to the solicited party need not be that of the
accomplice to perpetrator
D asks X to give him a weapon so he can kill Y
Under the MPC, D is guilty of solicitation of murder because he
has requested X to engage in specific conduct that would establish
complicity in its commission or attempted commission. (He
solicited actions and assistance by X that would permit the murder
to occur, and therefore, solicited murder).
o Under common law, D did not solicit a murder, because
he did not request that X perpetrate the offense
o (4) An uncommunicated solicitation, perhaps no more than an attempted
solicitation at common law, is a solicitation under the Code
Defense: Renunciation
o The MPC establishes a defense to solicitation: renunciation of criminal purpose
A person is not guilty of solicitation if he
Completely and voluntarily renounces his criminal intent; AND
Either persuades the solicited party not to commit the offense, or
otherwise prevents him from committing the crime
o This defense is recognized for the same reason that it applies to other inchoate
offenses of attempt and conspiracy
A person who abandons his criminal purpose and thwarts the commission
of the offense demonstrates thereby that he is no longer dangerous
o Establishment of the defense also serves as an incentive to the solicitor to prevent
commission of the crime
Criminal Attempt
Can solicitation constitute an attempt to commit a solicited crime?
o That is, if D solicits X into robbing Y, under what circumstances, if any, may D
be convicted of attempted robbery, rather than solicitation?
There are various approaches to this issue
o The majority of courts state that solicitation by itself cannot constitute an
attempt to commit the offense solicited
A minority provide that it can, subject to ordinary attempt doctrines
Under the minority basis, a solicitation that is proximate to the
target offense may constitute an attempt to commit it
o For example, D solicits unarmed X to murder Y when Y
returns home from vacation. Ds conduct is not an attempt
because it is too remote
BUT, if D solicits X, who is armed and in Ys
presence, to shoot Y immediately, Ds solicitation
could constitute an attempt.
o Some courts hold that solicitation, coupled with a slight act in furtherance
of it by the solicitor is an attempt
That is, if D solicits X to sell him an illegal drug, and then displays or
proffers the money, the solicitation has become an attempt.
Likewise, if D pays X to kill Y, or gives X the weapon, D is guilty of
attempt even if X does nothing further, and even if X is an undercover
police officer who never wouldve done it.
o Some courts hold that a solicitation is not attempt unless the solicitors overt
acts would constitute an attempt if he had intended to commit the crime
himself.
D pays X to commit a crime, or furnishes him with an instrument to do so.
D is not guilty of attempt
D solicits X to burglarize Ys home, and then opens a window at Ys
home for Xs later entry
D would be guilty of attempted burglary, even if X never shows
o Some courts hold that no matter what acts the solicitor commits, he cannot be
guilty of attempt because it is not his purpose to commit the offense
personally.
Remember, all of the above reasonings must be distinguished from innocent
instrumentalities
o Going back to the my iPod is at his house example from earlier
D is not guilty of solicitation because hes not asking X to commit larceny.
Hes trying to steal the iPod by duping X into doing it for him. Although
D is not soliciting X, his actions plausibly constitute an attempt to commit
the offense solicited. D has committed the last act in his power to cause
the property to be stolen.
Moreover, his conduct is in this example is more proximate to the
theft than a solicitation, because X is more likely to agree to Ds
request when he believes he is acting lawfully as opposed to
knowingly committing a criminal act.
Specific Intent
There is always a general intent component, plus an additional intent that is specified, i.e.
to cause permanent damage.
An offense that contains in its definition the mens rea element of intent or perhaps
knowledge
Designates a special mental element which is required above and beyond any mental state
required with respect to the actus reus of the crime.
One of three types of elements typically found in defining specific intent crimes
o To be guilty of some offenses, the State must prove an intention by the actor to
commit some future act, separate from the actus reus of the offense
Possession of meth with intent to sell
o An offense may require proof of a special motive or purpose for committing the
actus reus
Offensive contact upon another with the intent to cause humiliation
Some offenses require proof of the actors awareness of an attendant circumstance
o Intentional sale of obscene literature to a person known to be under the age of 18
The crime requires proof that the actors conscious object, or purpose, is to
cause the social harm set out in the definition of the offense.
General Intent
No particular mental state is set out in the definition of the crime, and therefore, the
prosecutor need only prove that the actus reus of the offense was performed with a
morally blameworthy state of mind; does not specify.
o Reserved for crimes that permit conviction on the basis of a less culpable mental
state, such as recklessness or negligence
You had a general decision to actyou had in your mind the intent to act, and did just
that.
Can also mean any mental state, whether expressed or implied, in the definition of the
offense that relates solely to the acts that constitute the social harm of the criminal
offense.
o When an actor can be convicted upon proof of any lesser state of mind, such as
when he causes the harm knowingly, recklessly, or negligently.
The MPC and Mens Rea (Section 2.02)
o Elemental approach/Analysis
Statutory approach
Prosecutor must prove that the defendant committed each material element
of the charged offense with the particular state of mind required in the
definition of that crime, as articulated by legislature
Abandons the countless common law and pre-Code statutory mens rea
terms, replacing them with just four culpability terms
o Purposely
A person acts purposely if it is his conscious object to engage in conduct
of that nature or to a cause such a result
It is his conscious object to engage in conduct of that nature or to
cause such a result; AND
He is aware of the existence of such circumstances or he believes
or hopes they exist
You intend for what youre trying to accomplish, to happen.
o Knowingly
A person acts knowingly when
He is aware that his conduct is of that nature or that such
circumstances exist; AND
He is aware that it is practically certain that his conduct will cause
such a result
You think with good reason that it will happen, but youre not intending
for it to purposely occur.
o Recklessly
Conscious disregard of a substantial and unjustified risk that the material
element exists or will result from his conduct
You know there is a risk here.
A risk is substantial and unjustifiable if considering the nature and
purpose of the actors conduct and the circumstances known to
him, its disregard involves a gross deviation from the standard of
conduct that a law-abiding person would observe in the actors
situation.
o Involves conscious risk creation
Resembles acting knowingly in that a state of
awareness is involved, but the awareness is of risk,
that is of a probability less than substantial
certainty; the matter is contingent from the actors
point of view.
The risk of which the actor is aware must of course be substantial
in order for the recklessness judgment to be made.
o The risk also must be unjustifiable.
Deviation from the reasonable standard.
o Negligently
Negligence requires a substantial and unjustifiable risk
The negligent actor, however, consciously disregards the risk
inadvertently, rather than consciously
It does not involve a state of awareness (but you should be aware
by the reasonable persons standard of care).
o A person acts negligently under this when he inadvertently
creates a substantial and unjustifiable risk of which he
ought to be aware.
o He is liable if, given the nature and degree of the risk, his
failure to perceive it is, considering the nature and purpose
of the actors conduct and the circumstances known to him,
a gross deviation form the care that would be exercised by
a reasonable person in his situation
Strict Liability
In Strict Liability Offenses, criminal liability may attach without fault
o Most common example is statutory rape
It doesnt matter if you knew their age or didnt, or were mistaken
somehow. You are still guilty on just an actus reus.
o IN ALL OTHER OFFFENSES (NON-Strict Liability)
The court must look for whether or not the legislature actually
intended for no mens rea to exist in these non-explicit situations.
They will, at the very least, read in the lowest level of
culpability and work their way up.
o Another common exception to mens rea are cases involving the Public Welfare
Exception Doctrine
Issues that concern the collective interests of society, and the importance
of their preservation, and ones in which the mens rea principle is not really
invoked.
Anti-drug laws
Food purity laws
Liquor laws
Traffic regulations
Building codes
If the penalty is a light one, such as a small fine, then a mens rea is
probably not required
o Remember: when the punishment far outweighs regulation of social order as a
purpose of the law in question, then a mens rea is probably required.
o There are Strict Liability Offenses that require a degree of culpability
In those, instances a mens rea that applies to some, but not all, elements of
the crime
In such scenarios, the elements of the crime that do NOT require a
mens rea are known as attendant circumstances
o In SLO where there is no mens rea component
There is no basis for acquittal on grounds of mistake of fact or law.
o Criticism of SL
Does not deter, since the actor is unaware, and as a reasonable
person, would not be aware, of the facts that render his conduct
dangerous
A person engaged in a certain kind of activity would be more
careful doing it because they know of the SL mandate over it
o More cautious criminals as consequence
Could keep a large class of people from engaging in activities at all
if they do not believe that they are capable of conducting
themselves in such a way so as not to produce the consequences of
the applicable statute to their actions
o BUT if the penalties are minimal, which for many SL
offenses they are, then most people wouldnt be deterred
and would do it anyway.
Unjust to condemn a person who is not morally culpable
Yet mens rea is removed from these offenses.
o This is not compatible with the longstanding principles of
CJ
Is the proposition descriptive, or prescriptive
o That is, is it incompatible with the accepted values of
society (descriptive), or is it inconsistent with what ought to
be accepted values (prescriptive)
o Becoming more and more commonaccepted by society?
It may be that the community should condemn them, but it is doubtful they
are presently held in such contempt.
o Constitutional?
Mens rea is important, but it is not a constitutional requirementexcept
sometimes?
Constitutional Innocence
It is constitutional when, but only when, the intentional (parts
culpability aspect) conduct covered by the statute could be made
criminal by the legislature
o In other words, SL violates the Constitution (and due
process) if the other elements of the crime, excluding the
strict liability ones, could not themselves be made a
crime.
o Otherwise, it is constitutional.
The Willful Blindness Doctrine
o In the MPCs definition of knowingly, it includes this.
It says you can knowingly do something if it can be proven you were
aware, but deliberately turned the other way and avoided learning the
truth. Deliberately avoiding guilty knowledge is all the guilty
knowledge needed to convict.
However, you cannot be found to have knowingly done ___ if it is
proven that you truly believed whatever the truth was, was not the
case/happening, or were in fact just careless.
Basically, under this, you are making knowledge/reckless definitions
synonymous to one another
The specificity of definition by legislature gives and takes
discretionary power from courts. It is important to keep this in
mind when analyzing tricky cases.
o Willful (in MPC)
Actor intentionally committed the prohibited act
Or
Actor intentionally performed the prohibited act in bad faith, with a
wrongful motive, or in violation of a known legal duty.
Voluntary/Involuntary Manslaughter
Some risk taking is socially neutral, or even desirable. Other risk taking is not.
o Some results in harm that will justify a judgment against the risk-taker, and some
results in harm that results in criminal liability.
When does risk taking that results in the death of a human being constitute the
crime of murder, as distinguished from manslaughter?
Common law and some states draw a line between risk-takings via mens rea using terms
like
o Depraved heart
o Abandoned and malignant heart
o State of mind that form malice aforethought (murder)
o State of mind that is less culpable, i.e. grossly negligent
(manslaughter/involuntary manslaughter)
Second-degree murder is the unlawful killing of a human being with malice
aforethought, but without elements of premeditation, willfulness, and deliberation.
o Malice is implied, when no considerable provocation appears, or when the
circumstances of the killing show an abandoned and malignant heart.
Implies an evil person, but instead is focusing on defendants awareness
of the risk created by his or her behavior.
o Implied malice requires a defendants awareness of the risk of death to
another.
o Subjective (what the defendant knows) and Objective (how likely the
outcome is) tests
Malice is implied when (California Tests)
The Thomas Test
o The defendant, for a base, antisocial motive and with
wanton disregard for human life, does an act that involves
a high degree of probability that it will result in death
The Phillips Test (similar but more clear and straightforward)
o An act, the neutral consequences of which are dangerous
to life, which act was deliberately performed by a person
who knows that his conduct endangers the life of another
and who acts with conscious disregard for life.
Manslaughter at Common Law
o Its the unlawful killing of another human being without malice aforethought
o At American common law, there are two kinds of manslaughter:
Voluntary
A killing that would otherwise be murder but is distinguishable
from murder by the existence of adequate provocation
o At the time of the killing, the defendant must have been
acting under a provocation that would arouse sudden
and intense passion in the mind of an ordinary person so
as to cause him to lose self-control, with an insufficient
time between provocation and the killing for the
passions of a reasonable person to cool
Involuntary
When a death is caused by criminal negligence.
o There is negligence when a person fails to be aware that
a substantial and unjustifiable risk exists or that a result
will follow, and such failure constitutes a substantial
deviation from the standard of care that a reasonable
person would exercise under the circumstances
Criminal negligence requires a greater deviation
from the reasonable person standard than is
required for civil liability.
Common Law and Implied Malice
o Treats the state of mind as just as blameworthy, just as anti-social, and therefore,
just as truly murderous.
o Many courts require that the actor subjectively knew that he/she was taking an
unjustifiable risk to human life.
Some hold that it is enough to show that the defendant should have been
aware of the serious risk to life
D. Theories of Punishment
a. Utilitarianism
i. A form of consequentialism, which holds that the justification of a practice
depends only on its consequences
ii. The purpose of laws is to maximize the happiness of society
iii. Laws should be used to exclude, as far as possible, all painful or
unpleasant events
iv. Belief that the pain inflicted by punishment is justifiable if, but only if, it
will result in a reduction in the pain that would otherwise occur
1. Ex
a. Causing D 5 hours of pain is justifiable if it would prevent
5 hours of pain from being caused if not for D being
punished.
v. Stresses general deterrence
1. D is punished to convince others to avoid criminal conduct. D is a
lesson for the rest of society. Instills fear of punishment. To a
limited extent, creates habitual law abiders, even if theres no
present fear of punishment
vi. Individual Deterrence
1. By punishing D, a clear reminder is sent against future offenses by
him. Scare him straight.
a. Incapacitation
i. Lock him up to keep him from offending again.
b. Rehabilitation
i. Reduce future crime by reforming the wrongdoer,
rather than scare them into being good.
ii. Psychiatric care, therapy for drug addiction,
academic/vocational training.
b. Classical Utilitarianism
i. Founded on the belief that the threat or imposition of punishment can
reduce crime
1. Humans generally act hedonistically and rationally
2. A person will act in accordance with his immediate desires to the
extent he or she believes that their conduct will augment his or her
overall happiness
3. Accordingly, a criminal will avoid crime if the potential pain and
consequence outweighs the potential reward
ii. This assumes, of course, that the offender would know the potential
consequences of his or her actions, and thinks rationally
c. Retributivism
i. Based on dual premise
1. Humans possess free will
2. Punishment is justified when deserved
ii. Assaultive Retribution/Public Vengeance/Societal Retaliation
1. It is moral to hate criminals
2. The criminal has harmed us, we must harm him back
3. Argues that the urge for retaliation is gratified
4. Basically
a. Form of utilitarianism. Defends punishment to deter private
revenge.
iii. Protective Retribution
1. Punishment is inflicted because it is a means of securing a moral
balance. Not to cause harm.
2. A criminal owes a debt to society because they are abdicated their
part in the moral balance that exists among the rest of it
3. It is fair, then, to ask for payment
a. Punishment is payment
b. Punishment is retribution
4. Punishment equal or proportionate to the debt owed (severity of
crime) is just
a. By punishing the wrongdoer, society shows its respect for
him. The criminal is morally blameworthy. He has a right
to be punished.
b. Punishment pays the debt, and allows the criminal to return
to society free of moral guilt/stigma
Scully Handout Statutes
Homicide
First degree murder is defined as any willful killing of another human being
committed with premeditation or deliberation
Second degree murder covers all other unlawful killings committed with express or
implied malice aforethought
Manslaughter is defined as any homicide committed as a result of adequate
provocation or caused by a defendants criminal negligent conduct
Federal Statute
It is unlawful to receive or possess unregistered hand grenades