WHY PUNISH: Retributivist: punishment as an end in itself, backwards looking, most find this approach archaic Utilitarian: punishment

as a means to an end, punishment serves a useful purpose 4 Main Strategies: - deterrance: (both general and specific)- punish D to deter him, or deter society from behavior - rehabilitation: reinstitute criminal back into society, change behavior, works for some, others not so, every $ we spend could so somewhere else... - incapacitation: keep society safe by isolating criminal, huge financial burden, small % criminals do most crime, recidivisim is impossible to predict, are we trying to punish future behavior - denunciation: send moral messages to society (see drunk driving, wife beating, sexual harassment) VOLUNTARY ACT: Crime requires a voluntary action, or actus reas - watch for statutes that penalize involuntary acts - Unconsciousness: complete defense (not voluntary) - Hypnotism: some say unconscious, but pros. say morally repugnant suggestions can be rejected, MPC recognizes - Blameworthiness: involuntary acts are never blameworthy - Willful Blindness (Ostrich Instruction): - D was subjectively aware of a high probability of illegal conduct, and purposely contrived to avoid learning illegal conduct OMISSIONS: To charge for omission, there must have been a duty, 4 ways: - statute - relationship - contractual duty - voluntary assumption preventing others from rendering aid - Good Samaritan Statutes: - not really prevalent in US, but are in Europe - We dont want to increase vigilantism, ton of outrage because we are forcing a duty - cant regulate immoral people - better to rely on the common decency of the American people CULPABILITY: Mens Rea: refers to the blameworthiness entailed in choosing to commit a criminal wrong - Recklessness: aware of a substantial and unjustifiable risk - Negligence: lack of awareness of a harm, deviation from standard of care reasonable person would exercise - Specific Intent: purpose (conscious objective) - knowledge (substantial certainty) - Knowing and Willing: - Pro Def: - awareness of a part. statute - general awareness that acts committed are unlawful - Pro Prosecution: - awareness that acts are committed - look at the activity, usually its some shady shit, then you can prob. go with the pro prosecution deal MISTAKE: Ignorance or mistake is a defense when it negates existence of a mens rea essential to the commission of the crime MPC: mistake of law under MPC is not applicable for misinterpretation. Only applicable if you correctly interpreted the law and it was later invalidated STRICT LIABILITY: Lafave on strict liability, factors to determine if strict liab or not: - legislative history (be careful, its not law) - analogous statutes: how have they been interpreted

- **severity of punishment** - **potential harm to public** - Ds opportuity to know facts and prevent injury - Difficulty in prosecution - Number of prosecutions expected Shaming Sanctions: Pro: - Keeps them out of jail - perception is important to people - deterrance Con: - no reintegration ceremony - produces anger at society - might not exactly deter either HOMICIDE Intent to Kill Murder: Unlawful Killing w/ Malice Aforethought - need purpose or knowledge 1) First Degree Murder: killing done w/ premeditation and deliberation - Trad: little or no time needed - Modern: must be some appreciable period of time 2) Second Degree Murder: spontaneous/impulsive intentional killing - punished less sever, belief that premed is worse than spont. - but, premed might show: - tortured conscious, sudden killing might be evidence of callousness, no hesit. required - MPC: no distinction 3) Voluntary Manslaughter: intentional killing in the heat of passion w/ legally adequate provocation - Must meet reqs: - kind of prov. that might drive reasonable person into h.b.r - D must have killed in h.b.r - must have not been adequate time for reasonable person to cool off - D must not have cooled off - Categories: Most jurisdictions require the provocation be fit into one of the accepted categories - sudden discovery of adultery (dont have to see action, needs to be more than making out, must be lawful spouse, court can view this narrowly) - false imprisonment - violent battery - mutual combat - serious injury or abuse of close family member - Maybe: assault (split, Lafave says yes), must be serious - words: alone never suffice, but informational words might (split) - Homo advances: split, but juries dont like it - Minority says no pigeon holing, passion d/n consult precedent - Mistaken identity mitigation: - killed another by mistake: most mitigate - lousy aim: Lafave says to mitigate, normally will be - intentional killing of innocent people: usually no mit. to VM, but might be 2nd degree - How Much Time? - depends on juris. - time frame is after D finds out, more outrageous provocation, longer it takes - rekindling: sudden reminder of provocation could mitigate to vol. mans. (Split here no maj,) - split here, Lafave likes it, must distinguish b/t rekindling and premed. - MPC: mitigate for extreme mental or emotional disturbance for which there is reasonable explanation or excuse - no need for triggering event, can build & simmer (minority)

4) Involuntary Manslaughter: created high and unjustifiable risk of death or serious bodily harm - must be gross neg. or recklessness in most jurisdictions, CIVIL NEGLIGENCE DOESNT SUFFICE - Knowledge of Risk: - Split D must have been consciously aware - Minority: even if D is not aware, can still be convicted of IM if ordinary person would have been aware 5) Negligent Homicide: D was not necessarily aware that he was creating substantial and unjustifiable risk of death or bodily harm MPC 6) Depraved Heart Murder: D created a VERY high unjustifiable risk of death or serious bodily harm - extreme recklessness: behavior that demonstrates extreme indifference to the value of human life - Majority state that D must have been aware of risk created - exception: if lack of awareness is caused by voluntary intoxication, it still works 7) Intent to Cause Serious Bodily Harm Murder: D didnt intend to kill, but did intend to inflict serious bodily harm - number of juris. abandon, dont need a separate category - prob. could get either involuntary manslaughter or depraved heart 8) Felony Murder: D committed or attempted to commit a felony and someone was killed during commission or immediate flight from , no mens rea for killing - Majority: death must occur during a BARRK: - burglary: breaking and entering into anothers dwelling at night with intent to commit a felony - arson: the malicious burning of anothers dwelling - rape: unlawful sexual intercourse with a woman without her permission - robbery: sealing victims personal property from victims person or presence through force or threat of immediate force - kidnapping: unlawful confinement of another through movement or concealment - THESE ARE ALL 1ST DEGREE MURDER - Some make barrks 1st and others 2nd: minority - Some hold felony murder is limited to BARRK felonies or those attempted or committed that are inherently dangerous to human life: two approaches: - Majority: under facts of case was felony comm./att. in manner that is inherently dangerous - Minority: view felony in abstract, is it inherently dangerous - if theres a way to do it w/out danger, no inherent dangerousness - MPC: no felony murder: they hold that there is implied extreme indifference during BARRK or felonious escape = depraved heart (very little influence) - Merger Doctrine: must be independent felonious purpose to get a felony murder conviction - When had felony come to end: can convict if death occurs during flight after felony: - D reached a place of apparent and temporary safety? - Still have booty? - Entire groups flight end? - When 3rd party does not do killing: - Maj: purpose of FM is to protect and vindicate lives of innocents - Agency theory: killing must be committed by one of co-felons in furtherance of felony - Prox. Cause theory: if death is foreseeable consequence of felony, all felons can be convicted - when good guy kills bad guy: majority no fm for other felons - no majority: when good guy kills good guy: majority no fm unless human shield case (possibly 1st degree here) - Splits: - co-felon kills another co-felon & 3rd is present - co-felon kills himself accidentally - killing of innocent by co-felon for personal reasons

- Posner: lives of criminals not completely worthless- deterrence for felons - Affirmative Defense (in some jurisdictions): D must prove - he didnt do killing - was not armed with deadly weapon - no reason to believe co-felons were armed - no reason to believe co-felons would engage in conduct likely to cause death or serious bodily injury REMEMBER IF FM DOESNT WORK, TRY OTHER FLAVORS OF MURDER ATTEMPT: Attempt: D must have requisite mens rea to commit crime and there must have been more than mere preparation: - D must have taken substantial steps strongly corroborative of criminal purpose - mens rea: purpose (conscious objective) or knowledge (knew w/ practical certainty) - Punishment: - Majority: punishment for attempt is less severe - Minority/MPC: punishment for attempt same as for completion except death or life sentences - shouldnt rely on luck - Dangerous Proximity: MINORITY: act must come very near to accomplishment of crime, crime would prob. be committed but for intervention - Abandonment: SPLIT - Traditional: there can be no abandonment once attempt is made - Modern/MPC: recognize voluntary abandonment as defense: - renunciation must be voluntary and complete, cant be prompted by new circumstances that increase difficulty of completion or probability of getting caught - not complete if motivated by decision to postpone until more advantageous time, or transfer to another victim - Impossibility: - Traditional: Legal impossibility = defense, Factual Impossibility = no defense - MPC (very influential) : virtually eliminated impossibility of defense - can be convicted if D was acting w/ culpability required for commission and purposely engaged in conduct which would constitute crime if attended circumstances were as D believed - TRUE legal impossibility: D wants to do something that is really not a crime, but D thinks it is DEFENSES: - Self Defense: must have honest and reasonable belief of imminent threat - Deadly force: must have honest and reasonable belief of imminent threat of death or serious bodily injury (many restrict defense to death, rape, and kidnapping) - measured by objective test from viewpoint of reasonable person in Ds situation - can measure circumstances - Honest but UNREASONABLE belief that they are threatened w/ deadly force = MURDER (majority) - minority: Imperfect self-defense: voluntary manslaughter - smaller minority: involuntary manslaughter (stupid b/c/ IM is unintentional) - MPC: negligence = negligent homicide, reckless = voluntary manslaughter - Battered Women Syndrome: - psychological condition characteristic of victims of repetitive domestic violence - Majority: relevant as to honesty and reasonableness of belief that husband was going to kill - may counter juror myths about why she didnt leave - woman is only entitled to SD if threat of death or serious bodily injury is imminent - inevitable is not imminent - IMMINENT = immediate danger that must be instantly met - Accidentally Injure 3rd Party: not guilty if SD was reasonable under the circumstances - Lafave: maybe neg. homicide if you were negligent - Duty to Retreat: if person has safe retreat and knows about it, does he have to retreat or stand ground? - if you arent using deadly force to defend yourself, you never have to retreat

- Deadly Force: - Traditional: you can stand ground, but many courts reversed this - Modern: many jurisdictions have enacted statutes that reversed courts and re instituted stand your ground - NOW: law is splintered, Teeter says you prob. can stand ground in most juris. - Reasons: - deterrence, self preservation, we want law to be on victims side, safe retreat might not be safe - Prosec.: avoid unnecessary loss of life, we want victim to be judge, jury, execut? - Initial Victim Responds w/ Deadly Force Against Criminal: - Majority: if you attack someone w/ non deadly force and he responds w/ deadly force, you have no right to SD b/c you are aggressor ( aggressions = physical contact, coming toward victim w/ abusive words, verbal assaults w/ physical activity.... prob. not words alone) - BUTTT... you can get SD if you withdraw and communicate your withdraw and other person responds w/ deadly force - Minority: Once other guy goes nuclear, you have right to SD - Deadly Force against Burglar: - Traditional Burglary: understood to be preventable by DF - Modern: burglary has been expanded, burglary in essence less dangerous, now only if victim had a reasonable fear of death or great bodily harm - In response many states have enacted make my day laws (some provide presumption of fear of death or great bodily harm, others provide that if you reasonably believe burg. would inflict harm, others use CL