Professional Documents
Culture Documents
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c. Likely charge in Owens had it gone to a jury: "You may infer the existence of one fact from
the existence of other facts."
d. Standard of Proof
At trial: proof BRD
On appeal: may be different depending on basis, e.g., whether a reasonable mind might
fairly conclude BRD that the D is guilty
In Owens the standard on appeal was this: conviction upon circumstantial evidence alone
is not to be sustained unless the circumstances are inconsistent with any reasonable
hypothesis of innocence
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State: to plead all elements of the crime charged
Defendant: to plead affirmative defenses
L. Circumstantial Evidence
1. Evidence not based on actual personal knowledge or observation of the facts (that would be
direct evidence)
2. It is testimony about facts from which inferences can be drawn
O. Standards of Review
1. Applied by appellate court to determine evidence was sufficient
2. General standard
a. Whether, based on the evidence produced at trial, a reasonable juror could find the defendant
guilty BRD
3. Review the evidence in light of the presumption that the defendant is innocent
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4. But, a guilty verdict based on circumstantial evidence will be upheld only if evidence supports no
reasonable hypothesis of innocence
A. Theories of Punishment
1. Retribution
2. Utilitarian (all seek to reduce future crime by one means or another)
a. Deterrence
b. Rehabilitation
c. Incapacitation (Specific Deterrence)
E. Retribution
1. Restores moral balance
2. Society may punish only those who deserve
3. Looks backward
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4. Retributive value is based on
a. Amount of harm done to victim
b. Culpability of actor
5. Not just revenge; reinforces fundamental values by responding to violations appropriately
G. Sentencing Cases
2. People v. Du
a. Held: The appellate judge held that trial court did not abuse its discretion in imposing
probation on defendant; even though defendant was presumptively ineligible for probation
b/c she used a firearm.
b. The statute required prison time if a firearm is used.
c. Most important part of case to court analysis leading to unusual result.
d. In Du, the only utilitarian purpose would be retribution and deterrence.
e. Sentencing Factors
Whether defendant acted out of necessity (Dudley)
Punishment others receive for like conduct (Du)
Future dangerousness (Du) – no need for incapacitation
History of criminal conduct (Du)
Effectiveness of pas therapy/correction (Du)
Provocation by the victim (Du)
Defendant’s criminal sophistication (Du)
3. US v. Jackson
a. Facts: Jackson committed robbery on the day he was released from prison for two previous
robberies.
b. Statute primary purpose is incapacitation b/c no other way to stop him from robbing.
c. Sentencing Factors:
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Time between last offense and current crime
Quantum of harm done by defendant
Age of defendant
Typical age of one engaging in such conduct
How others will be impacted by the sentence
Whether defendant shows remorse or is in denial
d. Held: It was permissible to sentence Jackson to life sentence without parole for his 5th armed
bank robbery.
H. Proportionality
1. Theory: Crime deemed more serious by legislature will be punished more severely than one
deemed less serious.
2. Overlays all sentencing theories as a constitutional mandate (though some argue it applies to
retribution only)
a. Hot check writers have highest rate of recidivism rate and manslaughter lowest. Must
introduce proportionality to curb deterrence/incapacitation efforts.
5. Miscellaneous
a. Previously three factors were relevant:
Gravity v. severity;
Penalty for different crime in same jurisdiction;
And penalty for same crime in different jurisdiction
b. This three part test is not rigid. One factor may be outcome dispositive as it was in Ewing.
c. Is there a proportionality requirement in the 8th Amendment (cruel and unusual punishment =
disproportionate punishment)?
If there is a proportionality requirement, it is very narrow (Kennedy/Souter/O’Connor)
There is none (Scalia/Rehnquist)
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A. Principle of Legality and Related Terms
1. Principle of Legality: Requirement of previously defined conduct. GROSSLY UNFAIR to not put
people on notice. And you wouldn’t get compliance.
2. Statutory Clarity: Unconstitutional if a reasonable person could not determine what conduct is
prohibited. Statutes that violate this principle are void for vagueness.
a. Ex. “Don’t do anything bad.”
3. Rule of Lenity (Strict Construction): Narrow interpretation of a law so as not to enlarge it beyond
fair meaning of the words used and what they reasonably justify. Favors defendant. Construe
the defendant for the benefit of the defendant. MPC has changed it.
2. Commonwealth v. Mochan
a. Where state statute carried forward common law crimes, phone calls suggesting sodomy in
persistent, lewd, immoral and filthy language was punishable conduct even though not
specifically prohibited by statute.
Sodomy was illegal.
b. It was punishable at common law b/c it directly injured or tended to injure the public such
that state interference was required.
c. Dissent:
Standard is too broad
Legislative function is usurped by the court
F. Constitutional Foundations
1. Ex post facto laws prohibited by Article I, Sections 9 and 10
a. New crimes: same conduct that was legal yesterday, is not legal today.
b. Harsher punishment
c. Elimination of defenses
2. Due Process clause of the 5th and 14th amendments (applicable to federal and state governments
respectively)
G. Statutory Clarity
1. Void for Vagueness
a. Question for the court - What does this law forbid?
b. Sufficiently definite that one doesn’t have to guess if conduct is proscribed; and judge can
apply and lawyer can defend
2. Overbreadth
a. Question for the court - Does the law forbid innocent conduct?
b. “Overcriminalizing” has a chilling effect
c. A particular problem with vagrancy statutes
3. Cases:
a. In Re Banks:
Statute forbids “peep[ing] secretly into a room occupied by a female.”
Held: The statute was sufficiently definite to give fair notice of conduct prohibited,
therefore, was not void for vagueness
Held: It was not overbroad b/c it had been narrowly construed by judges.
b. US v. Foster (CA 9):
Statute imposed additional punishment for using or carrying a firearm in drag trafficking.
Held: One who had loaded gun in truck bed in a zipped bag under a snap-down tarp did
not “carry” a gun.
USSCt later interpreted the statute to cover one who posses and conveys firearms in a
vehicle (Muscarello)
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a. “the purposes appearing from the statute taken as a whole, the phraseology, the words
ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied,
the remedy, the end to be accomplished,…the preamble, the title, and other like means…the
legislative history of the act and the circumstances surrounding its adoption; earlier statutes
on the same subject; the common law as it was understood at the time of the enactment…
and previous interpretations of the same or similar statutes.”
5. Words not to be deemed merely redundant if they can reasonably be construed to add
something to the statute in harmony with its purpose.
I. Vagrancy Statutes
1. Chicago v. Morales (US 1999)
a. Satute prohibited loitering. State had to show:
A person in a public place is a street gang member
That person is loitering (remaining in one place with no apparent purpose)
An officer orders all person to disburse
The person has to disobey the order to disburse
b. Unconstitutional because:
Statute failed to provide fair notice of the prohibited conduct; “apparent purpose”
Statute was impermissibly vague for not providing minimal guidelines for enforcement.
J. Other Model Penal Code Provisions – She said this was an “afterthought” not something
we necessarily should have read.
1. § 1.04. Classes of Crimes; Violations.
a. Misdemeanor: a year or less incarceration
b. Felony: more than a year incarceration and death
2. §§ 6.03 and 6.06: Fines and terms of incarceration.
A. Introduction
1. Criminal Acts are comprised of
a. Physical (actus reus)
b. Mental (mens rea)
2. Criminal Statutes proscribe
a. Certain conduct (i.e. breaking and entering)
b. Certain results (i.e. causing death)
3. Sometimes under certain circumstances, a.k.a. attendant circumstances (i.e., a child
under 14 years)
4. MPC Sec. 2.01(1) adheres to act requirement.
a. An act is “a bodily movement whether voluntary or involuntary” (Sec. 1.13(2))
B. Voluntary Acts
1. Definition: a movement of the human body that is willed or directed by the actor
2. An act is voluntary even if the result of
a. Habit (see MPC Sec. 2.01(2)(d))
b. Inadvertence
c. …so long as he could have done differently
3. Voluntary Conduct may be coerced
4. Three Kinds of Acts
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a. Act
b. Omission
c. Possession
5. Essential for criminal responsibility, even if mens rea is not required
6. Strict liability cannot be challenged for lack of mens rea, but it can be challenged if
there is no voluntary actus reus.
7. Time frame may be critical, e.g., one is not acting voluntarily during an epileptic
seizure but he is acing voluntarily when he earlier neglected to take medication that
would prevent the seizure.
8. Verbal conduct may constitute the actus reus, e.g., conspiracy.
a. However, sometimes we get into First Amendment issues when we try to punish speech.
E. Martin v. State: When a drunk person is involuntarily and forcibly taken by officers to a public
place, he has not violated a statute prohibiting a drunk person from “appearing” in any public place
because the statute presupposes a voluntary appearance.
F. Involuntary Acts
1. Involuntary acts not punished because:
a. They cannot be deterred, say utilitarians
b. The actor is not culpable, say retributivists.
2. Examples of Involuntary Movement.
a. Sleepwalking
b. Seizure
c. Unconsciousness
d. Being pushed by another
3. E.g., D did not “appear” intoxicated in public b/c officers took him there against his
will.
G. Conditioned Response
1. An actor whose conduct is the result of a conditioned response is not criminally liable.
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2. Whether the conduct was the result of a conditioned response is a question of fact for
the jury.
3. If the judge finds there is insufficient evidence for a reasonable person to find that
the conduct was a conditioned response, the issue will not be submitted to the jury
(State v. Utter)
M. More on Statutes
1. Conduct crimes: punish specific dangerous behavior
2. Result crimes: punish unwanted outcome, e.g. the death of a person
3. Attendant Circumstances: Both proscribed results and conduct may have attendant
circumstances, a condition that must be present with the conduct or result, e.g. driving while
drunk.
4. Remember, all three concepts relate to actus reus.
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CHAPTER 5: MENS REA: PART I: CULPABILITY REQUIREMENT AND STRICT LIABILITY
D. Statute in Cunningham
1. “Whosoever shall unlawfully and:
a. Maliciously (mens rea)
b. Administer to or cause to be administered to or taken by any other person (actus reus –
conduct)
c. Any poison or other destructive or noxious thing, so as thereby to (actus reus – attendant
circumstance)
d. Endanger the life of such a person, or so as thereby to inflict upon such a person any
grievous bodily harm (actus reus – result)
2. Shall be guilty of a felony”
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G. Section 12-4(a) Aggravated Battery
1. a person who,
a. in committing a battery (actus reus – attendant circumstance)
b. intentionally or knowingly (mens rea)
c. causes great bodily harm, or permanent disability or disfigurement (actus reus – result)
2. commits aggravated battery.
J. Evidence of Intent
1. Evidence of Intent: That one acted intentionally can be inferred from surrounding circumstances,
weapon used, force of blow.
2. One intends the natural and probable consequences of his acts:
a. “Presumption” is too strong of a word: Jury must draw inferences. Presumption of the above
statement causes due process clauses and goes against the “presumption of innocence” idea.
b. Stat must prove mens rea beyond a reasonable doubt.
c. Foreseeable has a role in making this inference.
L. CL Transferred Intent
1. A aimed at B, but missed and killed C
2. A’s intent to kill B is “transferred” to the homicide charge A faces in causing C’s death.
3. Dressler asks “why bother?” A intended to kill a human being (no statutory or CL requirement
that intent be aimed at a specific human being). A and B are both human beings so there is
no need for the notion of “transferring” the intent.
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a. Assult/Battery
b. Rape
c. Kidnapping
d. False imprisonment
2. Crimes considered based on strict liability.
a. Statutory rape [non-public welfare]
b. Selling liquor to minors [public welfare offense]
c. Speeding and some other traffic offenses [public welfare offenses]
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knowingly or purposely. When acting knowingly suffices to establish an element, such element
is also established if a person acts purposely.
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b. We do not, under the law recognize, that a 14 yr old has the capacity to consent to sex and in
order to protect this belief, we make this law a strict liability offense.
3. Staples v. U.S> 511 US 600 (1994). J. Thomas:
a. Facts: D had possession of AR-15 which because it is similar, can be modified with M-16 parts
to switch from a semi-automatic to an automatic function. Someone had filed off the metal
stop that prevented an M-16 switch from going into the fully automatic mode.
b. Held: If Congress had intended to eliminate the mens rea requirement of Section 586(1) it
would have done so directly.
c. Reasoning: Court wasn’t eager to remove the mens rea requirement in an area where so
many Americans own guns.
Policy decision
4. Garnett v. State
a. Facts: D is 20 with IQ of 52, he became friends with a 13 yr old who had told him she was 16
and they had intercourse. She became pregnant and bore his child. The trial court excluded
evidence that D had been told the girl was 16 as immaterial, as statutory rape is a strict
liability offense. The D was found guilty and given five years on a suspended sentence w/
restitution to be paid to the victim and her family (is that child support?)
b. Held: second-degree rape statute prohibiting sexual intercourse with underage persons
defined strict liability offense that does not require state to prove mens rea, and makes no
allowance for mistake-of-age defense.
5. MPC does not welcome the notion of offenses without Mens Rea. You will see most of the time
that courts interpret an offense under the MPC to have mens rea.
A. CL Mistake of Fact
1. Issue: how mistake/ignorance of a fact relating to an element of the offense affects criminal
responsibility for the social harm caused by the actor.
2. Basis for allowing mistake to exculpate for the harm done, even if it was not caused by alcohol,
insanity or some other unusual mental state.
3. Rationale: Without all the correct information, the actor is deprived of the opportunity to make
the correct choice. A person’s misperception of reality may have allowed him to participate in
some conduct that he would have not otherwise engaged in.
4. Mistake of fact is not a true defense.
a. The prosecutor has the burden of persuading the trier of fact BRD that the defendant had the
requisite state of mind or that his mistake did not negate the mens rea.
b. The defendant has the initial burden of producing evidence that he was mistaken (after state
makes its prima facie case).
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b. Speeding: not an excuse that the speedometer is malfunctioning. Too bad.
D. CL Mistake of Law
1. General Rule: ignorance of [or mistake concerning] the law excuses no one.
2. Exceptions:
a. Different law negating specific intent
b. Reasonable Reliance Doctrine
c. Fair Notice.
3. Exception to Mistake of Law Rule
a. Ignorance/mistake of law that negates mens rea.
Strict liability: Reasonable or not, mistake of law is not a defense.
Specific intent: mistake of law (reasonable or not) is a defense to specific intent offenses
if it negates the specific intent. MPC does the same thing with fewer words.
General intent: Reasonable or not, mistake of Law is not a defense.
Reasonable Reliance Doctrine: A person is excused for committing a criminal offense if at
the time of the offense, he reasonably relied on an official statement of the law, later
determined to be erroneous, obtained from a person authorized to interpret the law.
° Official
° Statement
° Not private counsel advice.
° Can’t be ones personal interpretation
Fair Notice: (Lambert Principle): A person who is unaware of a duly enacted and
published law may successfully assert a violation of due process if the ordinance:
° 1) punished an omission
° 2) imposed a duty based on status rather than activity
° 3) was malum prohibitum.
° These things don’t come up very often, if at all.
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2. E.g Sec 223.2(2): A person is guilty of theft if he unlawfully transfers immovable property of
another.
a. Of another – attendant circumstance
b. Mistake (that no one owned the property) would negate culpability required.
3. Sec. 2.04(1)(b): A mistake of fact is a defense when it established a state of mind that
constitutes a defense.
a. E.g Sec 230.1(1). A person commits bigamy if he contracts another marriage.
(a) unless at the time of the subsequent marriage, the actor believes the prior spouse is
dead.
Statutory defense. Statute explicitly creates defense based on this belief, so a mistake
leading to the belief his previous spouse is dead is a defense. If you thought previous
spouse was dead, how could you have intended to get married while you were still
married to another. Negates the mens rea.
A. Causation
1. Applied only to crimes that require the state to prove that the D caused a specific result
a. If no result as an element of the crime, then there is no problem with causation.
b. Not an issue in most cases.
2. Causation is both
a. Cause in fact: (aka, factual cause or actual cause) Did the D initiate forces that led to a
particular prohibited result?
b. And proximate cause: (aka, legal cause). Is there a sufficient connection btw the conduct and
the harm to justify punishment?
B. Related Concepts
1. Year and a day rule: Actor is liable for homicide if victim’s death doesn’t occur within a year and
a day. This is an old common-law rule and has been abrogated in most state statutes.
2. Actor is responsible for the “natural and probable consequences of his conduct.” Foreseeability.
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8. Factual cause eliminates candidates for responsibility but doesn’t resolve the matter of ultimate
causal responsibility. A person cannot be a proximate cause unless she is the actual cause, but
if the person is the actual cause, she may or may not be the proximate cause
9. Oxendine Case: one parent beats kid at night – gives him lethal injury; next day, Dad beats him
and he dies four hours later. Dad is not convicted of manslaughter because there was no proof
that the beating accelerated the death…evidence of causation was insufficient…was convicted of
2nd degree assault.
a. Take away: proof must be absolute
F. CL Proximate Cause (foreseeable that injury could occur…i.e. leaving someone injured on
the side of road)
1. AKA, Legal Cause
2. Proximate cause: Even when D’s conduct factually caused a prohibited result, courts decline to
impose liability where doing so would result in unfairness or injustice.
3. Therefore,
a. A person cannot be the proximate cause unless she is the actual cause.
b. And one may be an actual cause without being the proximate cause.
4. A limitation on criminal liability
5. A court or jury does not discover proximate cause; it selects proximate cause. Make a
judgment based on the fact of whether this is a time where we can hold the person criminally
responsible.
a. Judge is fact-finder in bench trial. Question of fact for the jury in a jury trial.
6. Compared to actual or factual cause: Proximate is not simple a case of cause and effect; rather
it is a matter of policy and judgment.
G. CL Intervening Cause
1. Intervening Cause: a cause that occurred after the D acted but before the harm resulted.
2. Examples:
a. Act of God
b. Act of independent 3rd party that
Accelerates harm
Aggravates harm
or causes harm in an unexpected manner.
c. Act or omission of victim
3. An intervening cause will not cut off liability if
a. It was intended or reasonably foreseeable.
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b. And not too remote or accidental as to fairly hold the D responsible.
c. Note that the illustrations and exercises from class are all variations of one of these two
principles.
4. De Minimus Contribution: Defendant will be relieved of liability for harm if his causal
responsibility is insubstantial in comparison to that of the intervening cause.
5. Foreseeability: Dependent Intervening Cause: occurs as a reaction or response to the
D’s conduct. Because it is a response, it is pretty much foreseeable, unless it is so unusual that
it borders on the bizarre.
a. Negligent Medical Treatment: Ordinary negligence then chain of causation not broken
(we assume that it is foreseeable that a doctor may act negligently.) Gross negligence
would break the chain of causation.
6. Foreseeability: Independent Intervening Cause: unexpected and does not occur in
response to the D’s conduct. (coincidental). Relieves the original wrongdoer of criminal
responsible unless it is foreseeable. (leaving someone in the road, and a car drives by and
strikes V and kills V = completely foreseeable that a car might drive by)
7. Intended Consequences Doctrine: intended to kill, but death did not occur in the way
intended, but nonetheless happened. D not relieved of liability.
8. Apparent Safety Doctrine: When a “defendant’s active force comes to rest in a position of
apparent safety (the risk has ended), the court will not follow causation any longer.
9. Voluntary Human Intervention: D more likely to be relieved of criminal liability where
another’s intervention is “free, deliberate, and informed”
10. Omission: An omission by an intervening actor, even one who has an obligation to act, will not
cut off liability of the initial actor. The second actor may be liable as well, however.
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b. Analyze actor’s mental state as to the result
c. Compare them in light of culpability required.
CHAPTER 7: HOMICIDE
D. MPC Intent
1. MPC: Model penal code retains the requirement of intent in Section 210.1(1)(a) defining murder
as “criminal homicide…committed purposely or knowingly.”
2. MPC says the actor must have
a. Had the conscious objective to cause death.
b. Or be practically certain his conduct will cause death.
E. Issue: What is a Human Being? When does one begin to be a human and when does one
cease?
1. Criminal Homicide is the unjustified, unexcused killing of a human being.
2. CL: a fetus is a human being only if born alive
3. Modern Trend: includes fetus
a. Usually defined by legislature.
b. Rarely defined by judicial interpretation (Keeler)
4. MPC Sec. 210.0: human being is one who has been born and is alive.
a. Texas Penal Code Sec. 1.07(26)
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Defines human being as one who is alive including an unborn child at every state of
gestation from fertilization until birth.
Effective Sept. 1, 2003
People v. Eulo:
- The court looked at the traditional determination of death and how you decide the moment of
death. The traditional determination of death has been based on vital signs – breathing and
heartbeat. Now that technological advances have allowed continued vital signs even in the
presence of total brain death.
- Court discussed legislative role vs. judicial role: the court decided it was okay for them to allow
brain death as the marker of death in the absence of legislative comment.
G. Issue: How much time can pass between conduct and the result?
1. Early CL: death is “caused” by D’s conduct if factual causation having been found, the V died
within a year and a day of the conduct. (Probably don’t need to know this at all.)
2. Modern Trend:
a. Abrogate the rule
b. Lengthen the period.
3. MPC abrogates the rule
J. Premeditated Murder
1. CL: premeditation aggravates homicide to 1st degree or capital murder
2. Deliberation-Premeditation is used to divide murder into degrees (MPC rejects this)
a. Premeditate: think about beforehand
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b. Deliberate: measure and evaluate facets of choices
3. Various interpretations of premeditate:
a. Split second prior to crime (Schrader, later overruled by Guthrie)
b. Elaborately planned crime
c. Better (What Vicki thinks the standard should be): long enough to allow a
reasonable person time to subject his conduct to a ‘second look’
K. Proof of Premeditation
1. Generally not direct evidence
2. Circumstantial evidence permissible (Forest – guy kills his father in the hospital…brought gun…
premeditated)
a. No provocation by V
b. D’s conduct and statements, pre- and post-crime
c. Continued blows after deceased had been defeated
d. Brutality of killing
e. Nature and number of wounds (Forrest)
3. Traditionally, courts have been very reluctant to allow words alone to be adequately provocative.
O. Manslaughter
1. Under CL, provocation mitigates intentional killing to manslaughter
2. Rationale: passion obscures reason and renders the provoked intentional killer less
blameworthy than the unprovoked one.
3. Definitions
a. The unlawful killing of another human being without malice (despite intent)
b. Intentional killing of another in the heat of passion
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Q. Voluntary Manslaughter
1. Restrictions (Giouard)
a. Provocation must be reasonable
b. Killing must have been in the heat of passion.
c. Not sufficient time to cool off
d. Causal connection between provocation and fatal act.
2. Words alone are not adequate to provoke a reasonable person to kill in the heat of
passion w/ some exceptions.
a. If they are accompanied by conduct indicating present intent and ability to cause bodily harm
b. In some jurisdictions, if the words informed of an event that, had he witnessed it, would be
provocative. (informational words vs. insulting words)
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c. Size?
d. Sexual preference?
e. Psychological (not considered…would allow too many “hotheads” to avoid punishment)
U. Mistake as to Provocation
1. Not addressed in most statutes
2. Provocation is adequate if reasonably believes injury exists even though it does not
3. Should
4. e.g., D shot suspected adulterer reasonably but incorrectly believing that he committed adultery
with his wife. Provocation reduced crime to manslaughter.
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a. D shows extreme indifference to human life
b. And an awareness of either (this is one formulation, and you’ll have as many formulations as
there are jurisdictions, until you get to the MPC jurisdictions and then they are rather uniform)
Risks of conduct
Or that the conduct is contrary to law
4. Relies on implied malice (have to imply that intent by the extreme recklessness of the actor’s
behavior)
5. Thomas Rule: does an act resulting in high degree of human death and wanton disregard for
human life
6. Knoller
a. Implied Malice: “circumstances attending the killing show an abandoned and malignant
heart”
b. Abandoned and Malignant Heart requires the state to prove defendant’s awareness of the risk
of death
(not just the risk of great bodily injury)
7. Yet more colorful phrases under common law
a. Depraved indifference
b. Utter callousness toward the value of human life and complete and total indifference as to
whether one’s conduct will create the requisite risk of death of another
c. A “don’t give a damn” attitude
8. It’s a jury question…unless the judge decides there isn’t sufficient evidence to give it to the jury
in the first place.
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2. State v. Williams: parents failed to get medical treatment for infant with toothache – led to
gangrene and he died
a. Failure to act while under a duty to do so is proximate cause of death, ordinary negligence
can be used to convict person of involuntary manslaughter
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c. Statute usually enumerates felonies but when it doesn’t, courts resort to common law
restriction of inherently dangerous
d. What is Inherently dangerous
Broad (expands reach of FMR): Foreseeable danger to life under the facts of the particular
case. If a death has occurred, it’s a lot easier to argue that the behavior was inherently
dangerous
Narrow: the felony must be one that is, in the abstract, inherently dangerous to human
life (Burroughs). If it is possible to commit the felony without risk to human life, it is not
inherently dangerous.
If the statute does not enumerate, the courts will use one of these two methods to
determine what felonies are inherently dangerous.
e. According to the statutes and the common law, the following are inherently dangerous:
robbery, burglary, arson, rape, mayhem, kidnapping, escape, sodomy and other sexual
assaults. (this list is based on the Alabama statute and the sodomy thing is probably not
allowed anymore)
f. Not inherently dangerous: Theft by deception, Forgery, embezzlement (These are
the least dangerous felony offenses) FMR does not apply
** Defendants can still be convicted without the felony murder rule…but the rule
eliminates the need for intent
6. Independent Felony (felony must not be a personal injury crime…i.e. stealing mail,
etc…)
a. Predicate felony must not be one involving personal injury (assaultive conduct).
b. It must have a purpose other than causing bodily harm
E.g. manslaughter cannot be the basis for FMR b/c the crime of manslaughter would not
exist since every death would be felony murder. It would remove the mens rea element of
almost all deaths.
c. Might be prosecutable under depraved murder or intent to inflict grievous bodily injury but
mens rea must be proven.
d. When the intent is to hurt in the original felony, that intent is said to be merged with the
felony…so that the court will have to PROVE that you intended to kill or cause severe bodily
harm
e. Where elements of a predicate felony are also in homicide, the FMR does not apply
f. Thus Felony child abuse resulting in death merged with the homicide. (Smith)
g. Non-independent: Assault, Assault w/ dangerous weapon, Burglary w/ intent to assault,
Involuntary manslaughter, voluntary manslaughter (these are the most dangerous felony
offenses) FMR does not apply
h. Examples
Must be an independent felonious purpose (IFP)
° Robbery: IFP is to obtain money
° Arson: IFP is to destroy a structure by fire
° Burglary: IFP is the commission of theft or another felony (Minority: unless burglar
intends to commit an assault.
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a. Courts consider crimes as continuing even after they are complete
b. E.g. some jurisdictions include killing during immediate flight with no break in chain of events
6. Once the felon has reached a place of temporary safety, the impact of FMR ends.
7. Accidental death occurring during the commission is not enough for felony murder
8. The death must have been caused by an act done in furtherance of a felony. Thus
a. Pilot of plane carrying 5000lbs of MJ which crashed, killing a passenger, was not criminally
responsible for his death under FMR (have to ask yourself whether this was an inherently
dangerous crime)
b. Had he been flying low to avoid radar, the result might be different.
9. In preparation not enough because there is time to change her mind.
FF. Proximate Cause
1. D’s conduct must be proximate cause of death
2. Criminal liability (per agency) extends to deaths caused by co-D, and police or bystanders (if a
murder occurs in the commission of the crime, the crime is the proximate cause
a. Thus, when 4 men rob a store but a policeman kills two of them, the survivors cannot be
charged with death of their cohorts. State v. Somophone:
GG. Agency v. Proximate Cause
1. Agency: FMR does not apply if the person who directly caused the death is a non-felon (b/c they
are not an “agent” of the felon)
a. Agency theory imputes one person acts to another. Doesn’t make much sense when the
parties are antagonistic. (or when other’s act is lawful)
2. Proximate causation: A felon may be held responsible for murder for a killing committed by a
non-felon if the felon set in motion the acts which resulted in victim’s death.
a. Minority.
A. Furman v. Georgia
1. DP unconstitutional as practiced b/c arbitrary and capricious, per curiam
2. Opinions striking d/p
a. Douglas, Marshall: discriminatory
b. Stewart: wanton and freakish
c. White: needless extinction of life
d. Brennen: cruel and unusual punishment
e. Marshall hypothesis: if the public knew certain things about the death penalty, they would
recoil in horror
i. No more effective than life imprisonment
ii. Cost of executing is higher
iii. Model prisoners; model citizens after release
iv. No attempt is made to fetter out the chance of recidivism
v. May encourage violence
vi. Applied prejudicially
vii. Innocent people are executed
3. Intermediate position
a. Retentionists start to see that executing innocent people is bad
b. Abolitionists start to see that the support for the DP is too strong to believe that it will go
away.
c. These people come together in an attempt to narrow the application in order to greatly
improve the chance that innocents will be executed.
4. Dissenters
a. Blackmun: legislative province
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b. Rehnquist: federalism
c. Powell: popular support; have not’s – tragic, but not unconstitutional
i. Later gave up that a workable system for implementation can be instituted.
d. Burger: here’s how...essentially an instruction to the legislature on how to implement a fair
application.
D. Reliable Procedures
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1. McCleskey: impermissible race discrimination not demonstrated (racial discrimination would
have to be proved to be present in THIS SPECIFIC CASE); no violation of Equal Protection or Cruel
and Unusual Punishment clause
2. Payne: Victim impact evidence allowed.
a. Evidence bearing on emotional effects on V’s family is allowed to show jury impact
of def’s crime
E. Death Eligibility
1. Tison: Non-triggerperson death eligible where he is a major participant in crime and acted with
reckless indifference to human life.
a. This whole case is about the mens rea required for imposing DP.
b. Three aggravating circumstances
i. Grave risk of danger to persons other than the victim.
ii. Pecuniary Gain
iii. Especially heinous
c. Mitigating factors
i. Young Defendants
ii. Felony murder convictions.
d. Enmund: No DP for Felony murder alone, unless there is
i. Intent to kill
ii. Likelihood of a killing occurring is substantial.
iii. Differentiation
Minor participant
No intent to kill.
Appreciably greater culpability
2. Atkins: Execution of mentally retarded violates constitution. States to determine what is “MR”.
(2002)
a. For a long time the US was the only country that would allow an execution of MR
b. Cruel and unusual punishment to kill a person with the mental capacity of a child.
3. Roper v. Simmons (2005): 18 and under death ineligible
a. Minor at the time of the killing is death ineligible.
b. Problematic b/c drawing a line and there will be exceptions.
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c. Where retained, separation or divorce destroys immunity
d. Domestic partners may be included.
I. Resistance Requirement
1. Resistance was necessary to establish the force element of the offense (ambiguous threat)
2. A conviction for forcible rape may not stand unless V resisted and her resistance was overcome
by force or threats
a. The resistance requirement has been confused with consent, i.e. if V didn’t resist, it’s hard to
believe she did not consent.
3. Lack of consent alone was not sufficient.
4. How much was sufficient to show resistance?
a. Follw natural instincts of every proud female to resist until overpowered
b. Enough to make lack of consent evident to the male
c. Reasonable under the circumstances.
5. Resistance – Just say “No”
a. Is simply saying “no” enough
b. Some argue men can honestly be mistaken and believe “no” means “yes” b/c
i. Our culture prompts women to make token protest so she won’t seem easy
ii. Our culture believes that women find force erotic
iii. Get a grip (prof’s editorial comment)
c. But note: women most commonly use nonverbal methods to give consent to sexual
intercourse
J. Resistance Cases
1. Generalized fear of force not enough; need threat near time of sex act and for the purpose of
getting sex (Alston)
2. A necessary element of rape is either
a. Actual force sufficient to overcome V’s physical resistance
b. A reasonable threat of force making resistance unnecessary (Rusk)
3. Whether a threat of force was implied is a jury question (Rusk)
4. Verbal resistance alone is not sufficient to prove rape w/o showing forcible compulsion
(Berkowitz)
5. Force (with sufficient resistance) found based on that force necessary to achieve penetration
(MTS) extreme view.
a. How a jurisdiction decides to define force can make a tremendous difference in the result
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6. These cases tell us that under the traditional common law
a. Lack of consent and force are not the same
b. To prove force,
i. The F must physically (not merely verbally) resist the male, i.e.., “No” is not enough
ii. Or the male has to have used force or threatened her on the present occasion to an
extent that would cause a reasonable female to fear grievous injury if she resisted.
L. Mistake of Fact
1. General rule: if defendant reasonably believes a woman voluntarily consented, he does not
possess the intent necessary for rape conviction
2. Might want to look at the mistake chart here. General intent crime: rape. Mistake of fact is
reasonable; it’s a defense in most jurisdictions (not all). If the mistake was unreasonable it is
not a defense in all jurisdictions.
3. In Sherry defendant failed to ask for instruction on mistake; later, Massachusetts held mistake
of fact, without consideration of its reasonableness is not a defense (minority rule)
4. Mistake elements:
a. Actual belief
b. Reasonable belief
c. Did not intend the crime
d. And the crime would not be committed had the circumstances been as D believed.
M. Deception
1. Fraud in the factum negates consent: misrepresentation about the actual act. Doctor explains
he will insert instrument in v’s vagina; in fact, it’s his penis.
2. Fraud in the inducement (con artist) does not negate consent: misrepresentation that lead V to
enter into conduct with false or mistaken beliefs. Doctor tells woman her disease will be cured is
she has sex with a particular person (Boro)
3. While feminists may concede fraud in the inducement is not rape, it is still conduct that should
be punished.
4. These types of deceptions are not recognized as criminal
a. Intercourse w/”donor” will cure fatal disease
b. Intercourse with producer will make V a star
c. Intercourse with senior partner will get V a job
d. Intercourse w/paramour in return for “I love you”
e. Argument that maybe we shouldn’t punish for rape, but can we argue that it should be
punished in terms of fraud. In these types of deceptions, if money were what were taken
instead of sex, then it is punished in the terms of the crime of fraud.
N. Proving Rape
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1. Rape Shield: deny opportunity w/o good cause to cross-examine victim or offer evidence about
her prior sexual conduct or reputation for chastity
2. Justification
3. May violate 6th Amendment right to confront and cross-examine accuser and present evidence on
his own behalf through the USSCt has upheld some rape shield statutes.
4. Generally, a trial judge may exclude relevant evidence if its probative value is outweighed by
undue prejudice.
5. To determine admissibility of evidence in rape trials court weighs
a. The interests of the rape shield laws in protecting V
b. Against the defendant’s right to confront and cross-examine (Lewis v. Wilkinson)
6. Lewis v. Wilkinson: case where the diary of the girl that seems to show that she is using the guy
as a scapegoat.
a. Only to the extent that it is material to a fact at issue and its probative value outweighs its
prejudicial effect.
b. Here the diary reflects information to prove her consent and to prove an improper motive.
O. Statutory Rape
1. Generally statutory rape
a. Has no mens rea requirement
2. Public Policy that supports strict liability in statutory rape is protection of society, the family and
the child.
3. Another public policy statement: young people lack capacity to consent because they are too
naive to understand the nature of the act and need protection from adult influences.
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2. Provides degrees of rape
3. Focus is on D’s conduct, not victim’s lack of consent (i.e. proof of resistance required)
4. Broader definition of rape includes violence directed at a 3rd person, threat to kidnap, etc.
A. Burden of Proof
1. Burden of Production
a. To avoid directed verdict of acquittal the state must produce evidence of each element
b. To establish an affirmative defense, the defendant must produce evidence that the defense
applies.
2. Burden of Persuasion
a. To get a conviction, the state must convince the fact-finder of the existence of each element
beyond a reasonable doubt.
b. To avoid conviction, the defendant has to prove by preponderance of the evidence that he
meets the requirements of the affirmative defense.
People v. Goetz
- Reinstated an indictment because trial court erred in applying, a subjective standard of whether
D’s beliefs and reactions were reasonable to him
- Rather it must be determined
• Whether he believed deadly force was necessary to aver imminent use of deadly force
[honest belief]
• And whether, in light of all the circumstances, a reasonable person could have believed
use of a deadly force was necessary [objective reasonable belief]
A. Justifications
1. Defense of Self
2. Defense of Others
3. Protection of Property including home
4. Law Enforcement
5. Necessity (choice of evils)
B. Theories of Justification
1. Public Benefit Theory: homicide considered justifiable when it benefited society, and that benefit
is the underlying motive for the action taken (no longer the dominant theory)
2. Moral Forfeiture Theory: An actor forfeits his legal rights, nonconsentually, when he makes a
decision to violate the rights of others. In the extreme, one forfeits his right to life when he
threatens the life of another. Focuses on the interests of the “victim” or wrongdoer
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3. Moral Rights Theory: focuses on the interests of the defendant. Provides the actor with an
affirmative right to protect her threatened moral interest.
4. Superior Interest: balances the interests of the parties, and more broadly, the values that they
seek to enforce or protect are balanced.
C. Structure of Justifications
1. Triggering circumstances (trigger condition) permit a necessary and proportional response
2. Trigger: circumstances that must exist for justification
a. Necessary: to protect interest at stake; not too soon, not after the threat has ended.
b. Proportional: limits amount of force;
c. Peterson p 485Self-Defense:
d. Person who is the original aggressor may not invoke the right of self-defense.
i. Thinking about escalating to deadly force.
3. General Rule: One may use force on another
a. If he is not an aggressor and
b. If he is honestly and reasonably believes
c. It is necessary[proportionate response]
d. From the imminent use of unlawful force by the other.
D. Deadly Force in Self-Defense
1. One may reasonably use deadly force only if he reasonably believes it is necessary to protect
himself from imminent and unlawful use of deadly force.
2. Deadly force: Force likely to cause death or grievous bodily injury regardless of the actor’s
intention
3. Deadly force may not be used to repel aggression if such force is unnecessary.
E. The Aggressor
1. Aggressor is one whose affirmative unlawful act must be reasonably calculated to produce a
confrontation with injurious or fatal consequences
2. Status can be removed (deadly and non-deadly)
3. Aggressor may not be the one who started it: the situation is escalate by an affirmatively
unlawful act reasonably calculated to bring about injury or death.
F. Threat and Duty to Retreat
1. Threat
a. Imminent; at once
b. Future threat is insufficient
c. The threat must be unlawful; compare lawful arrest
2. Duty to retreat
a. Majority: retreat not necessary
b. Minority: must retreat [Texas requires retreat]
c. Castle exception: no one must retreat from his home
d. Also some jurisdictions: retreat from robbers/rapists not necessary
G. The reasonable Person
1. Majority: factfinder should hold the defendant to the standard of a reasonable person in his
situation
a. State v. Goetz: The test is objective, not subjective
b. State v. Wanrow: The jury is allowed to consider all circumstances known to D, past or
present.
2. There are minority positions allowing for various degrees of subjectivization
a. State v. Wanrow: some degree of subjectivity allowed in dealing with the idea of what a
“reasonable woman” could have known or been able/prepared to do against a male assailant.
Also allowed to know Justification of self-defense is to take into account all of the facts and
circumstances know to the D, including those known substantially before the killing.
b. The more you allow subjectivity, the more chance that the “reasonable person” will fit the
Defendant.
c. We want an objective standard to avoid “self-help” justice.
H. Self-Defense: Imperfect
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1. Imperfect defense does not result in acquittal; it results in reduction of charge (usually, murder
to manslaughter)
2. Occurs in some jurisdictions when
a. Actor’s belief, though honest, was unreasonable
b. Besides reducing charges it can influence sentencing
3. Besides reducing charges it can influence sentencing
I. MPC Self-Defense: § 3.04(1)
1. Use of force on another is justified when
a. The actor believes
b. Such force is immediately necessary
c. To protect himself against
d. Unlawful force by the other
J. MPC Self-Defense: § 3.04(2) - Limitations
1. May not use to resist arrest (even unlawful) if the actor knows the other is a police officer
2. There are restrictions on use to resist force by property owner the actor knows is acting under a
claim
3. May not use deadly force unless actor believes necessary to protect self against
a. Death
b. Serious bodily harm
c. Kidnapping [not under common law]
d. Or forcible sexual intercourse [also different than the common law]
4. May not use deadly force if
a. Actor provoked use of force against himself
b. Or the actor knows he can retreat or surrender the property (a life respecting provisions)
i. But actor need not retreat from home or workplace (workplace is different than the
acceptable use of force in CL)
ii. Public officer need not desist from performing duty.
K. Justification: Self-Defense for abused women
1. Is she entitled to a jury instruction?
a. Confrontational – woman kills partner during the battering incident. Jury instruction is almost
always given
b. Non-confrontational – woman kills her partner after a lull in the violence or when he is asleep.
Courts are divided on whether self-defense jury instruction should be allowed
c. Murder for hire – woman hires someone to kill her abusive partner. Self-defense jury
instruction is never allowed
2. Is evidence of BWS admissible
a. Cycles
b. Why doesn’t she just leave?
i. Low self-esteem
ii. Learned helplessness: “quite important”
iii. Statistically much more dangerous when leaving?
c. Expert testimony: more widely accepted than it used to be.
3. Why try to fit women into a man’s defense? Why not a battered woman’s defense?
4. Justification and accomplices: If a battered woman gets help from another, the other
is protected by her claim of self defense.
5. Why justify rather than excuse? If woman is justified, that changes the husband’s rights to use
deadly force to defend himself against the deadly force threatened by his wife.
6. Why doesn’t self-defense work
a. Reasonable person is most often deemed to be a “reasonable man”
b. Imminence requirement might cause problems
L. Justification: Defense of Others
1. An actor is justified in using force against another to protect a third person when
a. A reasonable person in the actor’s position
b. Would believe the third person is in immediate danger of bodily harm
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c. And force is necessary for the protection of the third person
2. Relationship
a. Early English cases limit the defense to protection of spouse, child, parent, relative, or
employee or employer
b. Modern view: No such relationship is required. Thus, one may intervene to protect friend,
acquaintance, stranger.
3. Belief must be reasonable
4. May not use excessive force.
5. Note that these elements tend to mirror
6. The Mistaken Defender
a. Alter Ego Rule: The defender’s right is co-extensive with that of the person he seeks to
protect (Young) – The Defendant’s knowledge is equal to that of the knowledge of the
protectee
b. Reasonable Belief Doctrine: So long as the defender reasonably believes that the other is
being unlawfully attacked, he is justified (Martin)
c. Why not just excuse, rather than justify?
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1. The scope of public authority re: arrest is spelled out in the Fourth Amendment (unreasonable
searches and seizures)
2. Crime Prevention – felonies
3. Minority view: Deadly force is allowed if arresting person reasonably believes the other is
committing a felony and deadly force is necessary to prevent it.
4. Majority view: limits application of deadly force to “forcible or atrocious” felonies
Tennessee v. Garner: use of deadly force by an officer is not allowed to simply prevent a
nonviolent suspect from fleeing.
A. In General
1. When actor encounters a force of condition that requires him to choose between
a. Violating a minor law
b. Or suffering (or allowing other to suffer) substantial harm to person or property
B. Requirements
1. Defendant is faced w/clear and imminent danger
2. Defendant can reasonably expect his action to abate the danger (causal relationship)
3. No legal alternative will abate the danger
4. Harm caused must be less than the harm avoided
5. The legislature has not acted to preclude the defense by clear and deliberate choice regarding
the values at issue
6. Clean hands; didn’t put self in the situation
Nelson v. State: There’s a balancing test here between the harm actually caused and the
harm averted by the act. That’s the very definition of necessity.
3 elements in Nelson
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1. The act charged must have been done to prevent significant evil
2. There must have been no adequate alternative
3. The harm caused must not have been disproportionate to the harm avoided.
DURESS
A. Excuses: Types
1. Duress (coercion)
2. Intoxication (voluntary or involuntary)
3. Mental disorders
a. Competence to face trial
b. Insanity
c. Diminished capacity
d. Competence to be executed (capital cases only)
4. Infancy
5. Entrapment: police induce defendant to commit a crime he wasn’t predisposed to commit
6. Consent
B. Duress
1. Elements
a. Someone threatens to kill or grievously injure
b. The actor or another
c. Actor reasonably believes the threat was genuine
d. Threat was imminent at the time of the crime
e. No other reasonable escape from threat
f. Clean hands
2. Common Law Duress: never a defense to homicide
a. May be an imperfect defense reducing murder to manslaughter
b. May be a defense to felony-murder if it is a defense to the underlying felony
F. Duress v. Necessity
1. Necessity (natural force)
a. Starvation
b. Tornado
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c. Appendicitis
2. Duress (created by person)
a. Terrorist
b. Organized crime
c. kidnapper
A. Proof of Intoxication
1. Mere intake is not sufficient, has to be enough to effect a person’s ability to reason
2. Evidence of intoxication
a. Amount consumed
b. Time Period
c. Other’s reports of actor’s conduct
d. Odor of alcohol
e. BAC (certain levels are presumptively drunk)
f. Actor’s ability to remember important events.
g. Physical effects
h. Emotional effects, mood, liquid courage
B. Intoxication Generally
1. Cause by alcohol or drugs
2. Voluntary: one who knows or should know what he’s taking is likely to produce intoxication.
a. Addicts are voluntary
b. Alcoholics are voluntarily
3. Involuntary: One who consumes such substances other than by choice or design:
a. Coercion
b. Pathological Intoxication’
i. Atypical reaction, actor cannot have known about it.
ii. Re: unexpected reaction to Rx meds
c. Innocent mistake
C. Involuntary Intoxication
1. Involuntary intoxication is a defense to any crime if it caused
a. Temporary insanity according to definition of insanity in jurisdiction
b. Didn’t know difference between right and wrong or unable to conform conduct
D. Intoxication as an Element
1. Sometimes intoxication is an element of the crime, P has burden to show that intoxication was
present in order to prove the crime.
2. e.g. Tex Crim. Code Sec 49.05 Flying While Intoxicated
a. A person commits an offense if the person is intoxicated while operating an aircraft.
i. Conduct: operating aircraft
ii. Attendant circumstance: intoxicated
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1. Generally, a claim that voluntary intoxication rendered the defendant’s conduct involuntary is
rejected.
2. Rationale: the decision to drink was voluntary
3. Commonwealth v. Graves
a. A person can introduce evidence of intoxication such that their specific intent was overcome.
(This changes later – state legislature disallowed in a statute written in response to this case)
I. MPC Intoxication
1. Three types of intoxication per Section 2.08(4) – (5)
a. Self-induced
b. Pathological
c. Involuntary
2. Exculpation
a. Any kind of intoxication is a defense if it negates an element of the offense (except
recklessness)
b. And pathological intoxication and involuntary intoxication are affirmative defenses if caused
by a mental condition comparable to insanity under the MPC Sec. 2.08(4)
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3. MPC Definitions (Section 2.08(5))
a. Intoxication – a disturbance of mental or physical capabilities resulting from the introduction
of substances into the body.
b. Self-induced intoxication – taking substances one knows or should know have a tendency to
cause intoxication unless taken pursuant to medical advice or when one would otherwise
have a defense to a crime such as duress.
c. Pathological intoxication – intoxication grossly excessive in degree, given the amount of the
intoxicant, to which the actor does not know he is susceptible.
E. The Supremes have held that a person may not stand trial unless he is competent.
1. Policies.
a. D is the best person to testify to his own acts
b. What can I accept as a plea bargain,
c. Is this person going to make a good witness?
2. Standard: Common law requires that a D
a. Have the capacity to consult w/lawyer w/reasonable degree of rational understanding and
b. Have a rational as well as factual understanding of the proceedings against him
(Dusky v. US)
3. Competence to Stand trial may be raised
a. By D, P or judge
b. At any time, including during the trial
4. As a result of an incompetence finding criminal proceedings are suspended and may
a. Be released (minor crime)
b. Held in mental institution
i. Until competent
ii. Or until civilly committed if he is a danger to himself or others
5. It is constitutional to assume D is competent to stand trail: burden of persuasion on the D to
prove insanity.
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1. MPC §4.04 – No person who, as a result of disease or defect lack capacity to understand the
proceedings against him or to assist in his defense shall be tried, convicted or sentenced for the
commission of an offense so long as incapacity endures.
2. §4.05 – Procedure
G. Pleas
1. Guilty (guilty or nolo)
2. Not guilty (irrespective of sanity – includes both affirmative defenses and failure of proof.
3. Not guilty by Reason of Insanity (NGRI): because of insanity, mens rea fails
4. Guilty but Mentally Ill (GBMI)
a. State has proven all elements proven BRD;
b. no defenses; but D is mentally ill
c. If illness is treatable, D is sent to mental health facility, if he is treated before sentence ends,
he is returned to prison to finish out sentence.
5. Burden of Proof
a. Now it falls on the D to prove by preponderance of the evidence that he was insane.
b. Then at that point the state has to prove sanity Beyond Reasonable Doubt.
6. Insanity Aquitee after trial
a. Some jurisdictions will automatically send that acquitee to a mental health facility.
b. Some jurisdictions will allow a court to conduct a hearing to determine commitment.
c. Civil commitment, the standard is to prove by C & C evidence that he is insane and a danger,
but if there are criminal charges behind the commitment, use the standard preponderance of
the evidence.
i. Policy: gives state a lower burden given that the jury HAS decided that a crime has been
committed.
d. NGRI – commitment can be longer than the maximum sentence for the crime. Risk to think
about it. This causes some mentally ill defendants to decline to use the Insanity plea.
e. Foucha rule: p 616
H. Pre-trial procedures:
a. Special plea "not guilty by reason of insanity
b. Split on whether a trial judge may interpose an insanity plea over the objections of a
competent defendant
c. Notification of experts supporting insanity defense that may be called.
d. Verdict sometimes allowed "guilty but mentally ill": results in mental treatment during
incarceration.
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2. Incarcerating the MI doesn’t serve rehab
3. Punishing person who are not morally culpable doesn’t serve retribution
4. Incapacitation might be the only justification
N. Moral/Legal Wrong
1. Legal Wrong: a person is criminally responsible if he has substantial capacity to appreciate that
his act violates the law.
2. Moral Wrong: A person is criminally responsible, regardless of his appreciation of his act’s legal
wrongfulness, if he is aware at the time of the offending act that society morally condemns
such acts.
3. Subjectively morally wrong
a. Not followed by any jurisdiction
b. One is not criminally responsible if, because of mental disease of defect, he believed that
he is morally justified in his conduct – even though he may appreciate either that his act is
criminal or that it is contrary to public morality.
O. Hybrid in Wilson
1. A defendant is not criminally responsible if, because of mental disease or defect, he lacks the
substantial capacity to appreciate the wrongfulness of his act.
2. i.e. when he can prove he substantially misperceived reality and harbored a delusional belief
that society under the circumstances as the defendant, honestly but mistakenly
understood them, would not have morally condemned his actions.
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b. Or, if he did, he doesn’t know that what he was doing was wrong.
2. Cognitive only: Doesn’t take into consideration advances in knowledge of human behavior.
3. Almost complete impairment
4. Moral wrong or legal wrong
T. Insanity: MPC
1. She thinks this is very sensible formulation even though it is not the majority rule any
longer.
2. Lacks substantial capacity to either
a. Appreciate [not just know] the criminality or wrongfulness of his conduct [cognitive prong]
b. OR to conform his conduct to the law [volitional prong]
3. MPC test was once the majority. We’ve now returned to M’Naghten
4. Expands the kind of psychological impairment that can be excused beyond the traditional
common law.
5. Substantial is enough, total impairment not required
6. Expands the scope of expert testimony, but is not as strong as Durham test
7. Sociology excluded: Sociopaths with no affect, but they don’t care.
8. Appreciate instead of know
V. Role of Experts
1. Expert witnesses cannot just be ignored
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2. Two circumstances
a. Failure of proof (mens rea)
b. Partial responsibility (mitigates murder to manslaughter)
i. Specific intent crimes only
ii. General intent crimes as well.
3. Controversial: most jurisdictions abolished it
B. Justifications for Diminished Capacity
1. Ameliorates harshness of insanity defense
2. Allowed avoidance of death penalty
3. Allows refined determinations of culpability
C. MPC and Diminished Capacity
1. MPC §4.02 – allows evidence of mental disease of defect whenever it is relevant to prove or
disprove any mental state.
2. MPC §210.3(1)(b) – Recall murder is reduced to manslaughter if under the influence of extreme
mental or emotional disturbance for which there is a reasonable explanation.
D. Snapshot of Juvenile Crime
1. US made 2.3 million arrests of persons under 18
2. 1.9 million of 2.4 million juveniles arrested had substance abuse and addiction involvement
3. Still only 68,600 juveniles received SARx
4. More than 1 in 4 persons in the general population are under age 18
5. Juvenile minorities will experience the most growth in 1995-2015
E. Juvenile Court
1. Juveniles were originally tried in adult criminal court and sentenced to adult prisons
2. Juvenile courts (late 19th century) brought different perspective
a. Rehab, not punishment
b. Delinquents, not criminals
c. Adjudications, not trials
3. Warren Court (1960s: Due process revolution; nationalized law per constitution
F. Excuse: Infancy Defense
1. Child under seven presumed conclusively to be too young to formulate the mens rea for criminal
liability
2. Child over seven but under 14 were presumed incapable but the presumption could be rebutted
3. Child over 14 = > adult culpability
G. Juvenile Courts and Infancy
1. Majority: The infancy defense does not apply in juvenile court (In re: Tyvonne J.)
2. Minority: Jurisdiction of the juvenile court over one under 14 requires clear proof of that the child
understood the wrongfulness of the act. i.e. approves the infancy defense.
H. Infancy: Burdens
1. Defendant: proof of age invokes presumption
2. State: produce evidence to persuade fact finder BRD that defendant knew right from wrong
3. Today, most children are adjudicated in juvenile courts. E.g., MPC 16 years old.
I. Rebutting the Statutory Presumption of Incapacity
1. Factors to determine if the child knew the difference between right and wrong
a. Nature of the crime
b. Child’s age and maturity
c. Whether the child showed a desire for secrecy
d. Whether the child admonished the victim not to tell
e. Prior conduct
f. Any consequences that attach to the conduct
g. Acknowledgement that the act was wrong and could lead to punishment.
A. New Defenses
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1. Not universally accepted
2. Defenses
a. Euthanasia
b. Addiction/Alcoholism
c. Rotten Social Background
d. Cultural Defense
B. Euthanasia
1. Kervorkian update
a. Serving 10-25 at Thumb Correctional facility in Michigan
b. Eligible for parole in 2007
c. Latest interview I could find Oct 2005
2. Gonzales v. Oregon (2005) Supremes upheld Oregon’s Death with Dignity Act
a. Controlled Substances Act doesn’t allow AG to prohibit doctors from prescribing regulated
drugs for use in physician-assisted suicide under allowable state law.
C. Addiction/Alcoholism
1. Intoxication <= from addiction or alcoholism is voluntary
2. First drink, first drug use is voluntary
3. State may regulate or criminalize drug or alcohol
a. Manufacture
b. Sale
c. Possession
d. Use
4. But not addiction
D. Rotten Social Background
1. One who commits crime b/c social deprivation should be acquitted
a. He doesn’t’ deserve condemnation
b. We lack standing to judge him
2. No legitimacy b/c there’s no community bond with the disenfranchised poor
3. Correlation
a. Crime
b. Poverty
E. Cultural Defense
1. Focus: Whether conduct was envisioned by the legislature in defining the crime
2. Factors
a. The character, experience and background of defendant indication whether he knew of
illegality
b. Whether defendant knew of the consequences of violating the statute
c. Circumstances concerning the offense
d. Harm caused by the infraction
e. Its probably impact on the community
f. Seriousness of infraction in terms of punishment (which can be suspended)
g. Mitigating circumstances
h. Possible improper motives of prosecutor or complainant
i. And any other data regarding the culpability of the offense committed by the defendant.
F. Alternatives to Cultural Defense.
1. De minimus statutes
2. Prosecutorial discretion
3. Jury nullification
4. Judge’s sentencing discretion
Introduction
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A. General Principles
1. Three Types of Inchoate crimes are attempt, conspiracy, and solicitation
2. Inchoate crimes: The object of the criminal conduct is called the “target offense (and sometimes
“substantive offense”)
B. Inchoate Crime Look Alikes
1. Conduct has not yet brought about harm, but allows for preventative enforcement
2. Examples: (burglary, stalking, possession of burglar’s tools, reckless driving,
Posession of controlled substance w/intent to distribute)
C. Inchoate: Imperfect and Incomplete
1. Crime may be inchoate for one of two reasons:
a. Complete but imperfect: This occurs when the actor performs all of the acts that she set out
to do but fails to attain her goal (gunshot misses)
b. Incomplete: This occurs when the actor does some of the acts necessary to achieve the
criminal goal, but she desists or is prevented from continuing (cops arrive)
Attempt
C. MPC §5.01(1)
1. One commits attempt
a. If he acts with the kind of culpability required for the target crime
b. And does one of the following
If he purposely engages in conduct…
Or when…result is an element…, does or omits to do any thing [to cause] or with the belief
that it will cause such a result without further conduct on his part
Or commits …an act or omission constituting a substantial step
2. §5.01(2) “Substantial step” – must be strongly corroborative of the actor’s criminal purpose
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4. She prepares to commit the crime, gathering what’s needed – inchoate
5. She commences commission of the offense – inchoate
6. She completes the crime – punishable for the offense committed.
E. Grading Attempts
1. Attempted felony is graded as a felony but punished as a lesser offense than the target crime
2. Grades
a. Capital or punishable by life: set at specific term of years
b. Lesser felonies: Half (or some similar formula) the maximum for target offense.
3. MPC grades equal to the target offense except in capital crimes.
I. Attempted Murder
1. A finding of “intent to kill” is necessary for an attempted murder conviction (Gentry)
2. Attempt to murder can only be of the intent to kill type. In most jurisdictions, there is no attempt
to commit.
a. Depraved-heart murder
b. Felony murder (Bruce)
c. Or intent to inflict grievous bodily harm murder
3. Similarly, voluntary manslaughter <= intent to kill + provocation. Attempted voluntary
manslaughter is cognizable.
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a. Must have done or omitted to do something that constitutes a “substantial step” in a course
of conduct planned to culminate in his commission of the crime
Done or omitted
Substantial step
Planned to culminate in commission
L. MPC Examples of Conduct Sufficient Under the Substantial Step Test (focuses on what has BEEN
done…not what is left to do)
1. Searching for victim
2. Reconnoitering the crime scene
3. Unlawfully entering a building where the defendant contemplates committing the
crime
4. Possessing tools or instruments necessary for committing the crime near the crime
scene
5. Soliciting an innocent agent to do an element of the crime
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Hybrid legal impossibility exists if D's goal was illegal, but commission of the offense was
impossible due to a factual mistake by her regarding the legal status of some factor
relevant to her conduct. (contains both a legal AND factual aspect to it)
Dressler believes that in hybrid cases, you should take the factual impossibility stance and
chose no defense.
6. See chart on Defenses under Specialized (Offense Modification)
Solicitation
A. Solicitation Definition: involves the asking, enticing, inducing, or counseling of another to
commit a crime.
Conspiracy
A. Sequence of Inchoate Offenses (if all are present)
1. Solicitation => Conspiracy => Attempt => Target Offense Completed
2. NOTE: Conspiracy: (CL does not merge; MPC merges)
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B. Merger Illustrations
1. A solicits B to rob C.
a. A has committed solicitation.
b. Solicitation is complete with the request.
2. A solicits B to rob C and B refused to rob C.
a. A has committed solicitation
b. ....regardless of whether the one solicited accepts or rejects.
3. A solicits B to rob C and B accepts (sufficient under CL. MPC and some jurisdictions require an
overt act as well.)
a. A and B have committed conspiracy.
b. A’s solicitation merges into conspiracy.
4. A solicits B to rob C. B agrees and attempts but fails to rob C.
a. B has committed conspiracy and attempted robbery.
b. Conspiracy does not merge with attempt.
5. A has committed conspiracy and an attempted robbery (per rules of complicity).
a. A’s solicitation offense merged into attempted robbery, but the conspiracy did not.
6. A solicits B to rob C and B accepts and attempts and succeeds in robbing C.
a. B has committed conspiracy and robbery.
b. B’s attempt merged into robbery but conspiracy still stands.
7. A has committed conspiracy and robbery (per rules of complicity).
a. A’s attempt merged into robbery but conspiracy still stands.
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G. Pinkerton Doctrin
1. A co-conspirator is liable for commission of the substantive offense IFOTC by another co-
conspirator even if there is no evidence that he directly participated
2. A co-conspirator can relieve himself of liability for the acts of another co-conspirator’s acts IFOTC
by withdrawing from the conspiracy
I. Criticism of Conspiracy
1. Vague
2. Conviction possible before commits any act at all
3. Predominately mental b/c it is a meeting of the minds
4. Person cannot be convicted for conspiracy to commit murder by implied malic murder
a. One cannot agree to commit an unintentional act
J. MPC Conspiracy
1. A person commits conspiracy with another person, if he agrees with such person to commit an
offense.
2. MPC requires that the object of the conspiracy be a crime
K. Conspiracy Suppliers
1. To hold a supplier liable the state must show both knowledge of illegal use and intent to further
that use. (Lauria)
2. A supplier can be shown to have intent by
a. Direct evidence he intends to participate
b. Inference of his intent to participate based on
c. Special interest in the activity (acquiring a stake)
d. When no legitimate use exists
e. When the volume is disproportionate to legitimate demand
f. When the nature of the crime is aggravated
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O. Bilateral or Unilateral Conspiracies
1. Unilateral – to support a conspiracy only one needs to agree to the commission of the offense
(MPC)
2. Bilateral – traditional theory requiring actual agreement of at least two parties.
Q. Conspiracies in Kilgore
1. First: Oldaker, Benton and Carden
2. Second: Kilgore Berry and Carden
3. Third: Kilgore, Price and Carden
4. This court said that conspiracy merged, but it was merely an evidentiary tool to prove the
murder.
5. If the object of the conspiracies were all the same, then why couldn’t all of the testimony about
the three conspiracies be used.
a. Court said b/c Oldecker didn’t know of Kilgore’s involvement
b. Whether his not knowing depends on the kind of cons.
R. Chain Conspiracy
1. The parties should know by the large ongoing nature of the conspiracy that the other members
exist
2. Common interest: success of one depends on the success of them all
3. All are members of one conspiracy.
4. Seen in large drug trafficking conspiracies: think chain of distribution.
S. Wheel Conspiracy
1. Central person (hub) agrees with individuals (spokes) who may or may not have knowledge of
the existence of the others
2. Knowledge connects the spokes (rims) into a single conspiracy
3. Knowledge or connection of financial interests create a rim
4. This rim thing is one way to limit the scope/reach of conspiracy law.
T. Cases
1. Kilgore: Statement of Olkraker was inadmissible in Kilgore’s trial b/c there was no common
conspiracy btw the two.
2. Bruno:
a. Big guys (importers and middlemen) were treated the same as the small guys (individual
dealers)
b. Leverage in getting the cooperation of the little guys (policy of trying to get the little guy to
turn on the big guy – can sometimes back fire when the prosecuter makes a deal with one of
the big guys.
3. Bravermen: where defendants planned several different violations, their agreement should have
been charged as one consp.
U. Wharton’s Rule
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1. Rule: If it is impossible for a substantive offense to be committed without cooperative action, the
agreement to commit the offense is not an indictable conspiracy (if the actual crime requires two
people…it’s not conspiracy)
2. Examples
a. Bribery
b. Adultery, Incest and Bigamy
c. Dueling
d. Gambling
e. Buying and selling contraband
3. Justification: If you have a substantive offense that, by its very definition, requires two people,
you are actually double-counting for the same action.
4. Drug cases: In its traditional form, would not allow conspiracy conviction for drug transactions
where just two people are involved. For this reason, many jurisdictions have abolished it.
5. Wharton’s Rule will not apply where there is a legislative intent to the contrary
6. The MPC doesn’t recognize Wharton’s rule
7. Exception: if an offense requires two people, but a third or fourth person is involved, then
Wharton’s rule does not apply. Justification, is that when you add another, you increase the risk
to society so the scope is extended
V. The Gebardi Rule: a person that a particular law is intended to protect cannot be a party to a
conspiracy to violate that law.
1. A man and a woman conspired with each other to transport the woman across state lines to have
intercourse with the man.
2. Since the Mann Act is to protect women from being transported across state lines for
prostitution, debauchery etc., so the woman cannot be said to have conspired for her own
victimization.
W. Defenses to Conspiracy
1. Common Law: Abandonment not a defense but single conspirator can limit liability by
renouncing involvement and withdrawing from the conspiracy. No way under common law to
avoid conviction for the original conspiracy (because the act is complete when the
agreement is made)
2. Requirements may be strict
a. Communicate withdrawal to each co-conspirator
b. And successfully dissuade the others.
3. MPC §5.03(7)(c) – Withdrawal -
a. When one informs co-conspirators or notifies authorities that he is terminating his association
b. If he does this, he is not responsible for co-conspirators’ further acts
c. Does not provide a defense for the original agreement
4. MPC § 5.03(6) – Renunciation (A complete defense)
a. Is an affirmative defense if the defendant successfully thrwarts the success of the
conspiracy under circumstances manifesting a complete and voluntary renunciation of
his criminal purpose
b. This will avoid responsibility for the initial conspiracy as well
People v. Sconce:
A. Doctrine of Complicity
1. Defines the circumstances in which one person (the accessory) becomes liable for the crime of
another (the principal)
a. Assisted crimes
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b. Crimes committed for another.
2. Most of the time, but not always, an accessory is also a conspirator
G. MPC §2.06
1. One is guilty of an offense “committed by his own conduct” and those “committed by …another
for which he is legally accountable”
2. Legally accountable
a. When actor uses innocent agent
b. When actor is an accomplice of another
3. Accomplice
a. When actor solicits a crime
b. When actor “aids or agrees or attempts to aid” another in crime
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a. ABTF and P-1 could be tried together but ABTF could not be convicted unless P-1 was first
convicted
b. P-1 and P-2, order of conviction was not important.
O. Foreseeable Consequences
1. If the defendant intend to promote and primacy crime and the secondary crime was a
foreseeable consequence, he can be convicted of both crimes
2. AKA, natural and probable consequences doctrine
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4. Most of the time an accomplice will be a conspirator
Q. Actus Reus
1. Common Law
a. Actual Assistance (Physical and Psychological)
Holding victim while P hits him
Holding the ladder steady as P climbs into the window
Yelling, “Kick him again – he’s moving!”
b. Most court will find any aid is sufficient unless sit is completely ineffectual
2. Omission
a. Common Law – actus reus can be satisfied by an omission by one w/ a legal duty to act. E.g.,
police officer who stands and watched P attack and rape V has satisfied the actus reus
requirement.
b. MPC: Same approach. A person who has a legal duty to prevent the commission of an offense
is responsible for that offense if he fails to make proper effort to prevent it.
3. How much Aid?
a. State v. Vailancourt:
Conduct: Standing and talking to someone who’s trying to break into a house. No liability.
Held: Accomplice liability requires an actor to have aided the primary actor by some form
of participation on the part of the actor
° Knowledge and mere presence do not constitute sufficient affirmative
Dissent: presence is encouragement
b. State v. Helmenstein
Per statute a conviction may not rest on the testimony of an accomplice unless there is
corroboration by other evidence that connects defendant with the crime.
Also, one may be considered an accomplice by providing moral support, i.e., asking P to
bring home bananas from the store he planned to burglarize.
4. Corroboration
a. But compare Wilcox v. Jeffery
Principal (Hawkins) committed an offense by playing at a concert in violation of English
immigration
Wilcox was aider and abettor because he was there 1) to hear Hawkins and Wilcox’s
presence and payment was encouragement; and 2) hoping to copy for his magazine
Once it is determined that A assisted P, even a trivial amount of help constitutes actus
reus.
5. Crime Required
a. People v. Genoa
Undercover officer received financing from defendant. Officer would procure and
distribute drugs and repay front money and profit to defendant
Defendant was not guilty of attempted possession with intent to distribute narcotic b/c no
drugs were purchased by officer
If P’s conduct does not proceed sufficiently far to constitute an offense then A is guilty of
no offense as an accomplice.
MPC resolution.
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b. Also, one may be considered an accomplice by providing moral support, i.e. asking P to bring
home bananas from the store that he planned to burglarize.
U. Principal Convicted
1. People v. McCoy
a. P and A convicted of first degree murder
b. P’s conviction reversed: error in jury instruction
c. Held: the reduction of the principal’s offense does not necessitates the reduction of the
accomplice’s
d. Sometimes an accomplice can be convicted of a higher degree of crime than the perpetrator
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