1 1/8: pp. 1-29 What is a crime?

any social harm defined and made punishable by law Where is the thin criminal/civil law divide? Legislatures deals with crimes by making directions in general terms. -Legislation subject to limits of constitutional law (i.e. due process, 5th (federal th (states)) and 14 4 conditions needed for general direction to work successfully Primary addressee who is supposed to conform his conduct to the direction must know: 1. of its existence, and of its content in relevant respects 2. he must know about the circumstances of fact which make the abract terms of the direction applicable in the particular instance 3. he must be able to comply with it; and 4. he must be willing to do so Role of judiciary courts have made some presumptions regarding the interpretation of legislature Criminal Law in a Procedural Context: Pre-trial Crime Reported, Arrested with probably cause, prelim hearing where judge determines if arrest was justified, if yes, then prosecutor (in some states) can file an information (document that sets out formal charges and basic facts) In many states and federal court, accused may not be brought to trial unless indicted by a grand jury - grand jury consists of 23 laypersons who consider evidence before inducing the indictment - all it does is determine if person can stand trial on a particular charge Accused can still get trial dismissed on pre-trial motions (i.e. evidence in violation of Const.) Accused may plead guilty which is usually a bargain between def. and prosecutor Criminal Law in a Procedural Context: Trial by Jury 6th amend provides for right to trial by jury for all cases where maximum potential punishment exceeds incarceration of six months. -safeguard against government - **Defendant can waive right to jury trial Usually 12 people who need to reach unanimous verdict Juries of 6 are also constitutionally permissible Some states allow a substantial majority of juror to invoke conviction instead of all Voir dire provides for impartial jury

2 Defense and prosecutor can also use a limited number of peremptory challenges (challenges not based on cause) however, cannot be invoked solely on basis of gender or race Proof of Guilt at Trial Proof beyond a reasonable doubt *Winship it is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned Moral Certainty Instruction After considering evidence, jurors dont feel an abiding conviction, to a moral certainty of the truth of the charge Firmly Convinced Instruction Proof that leaves you firmly convinced of defendants guilt No waver or vacillation Instruction If the conviction appears to be waver or vacillate No real doubt Instruction Real doubt based upon reason and common sense after a careful and impartial consideration of all the evidence Thoroughly Convinced Instruction Is the juror thoroughly convinced of the guilt? Judges who tell juries what reasonable doubt means can risk reversal by lessening burden of proof for the state depending on the definition Enforcing the Presumption of Innocence Owens v. State Court of Special Appeals Md 1992 Facts Appellate case on a conviction based solely on circumstantial evidence for DWI. Visibly intoxicated, but refused alcohol test and there were alcohol restrictions on his license. Man was passed out in a truck in a driveway with engine running and lights. After a neighbor reported a suspicious vehicle, police came, found the man with an open beer between his legs and 2 empty beer cans in the truck. P also notes that the driveway is not a highway and not covered by the Transportation Article by which he was convicted. Issue Is there sufficient evidence to determine Owens was drunk driving? His guilt depended on if he was deemed either to have 1) had just been driving or 2) was about to drive.

3 Holding Guilty. Affirmed. Rationale Fact that plaintiff was sitting in driveway implies he was driving earlier. 3 beer cans and unconsciousness show that this was his final destination. Also, suspicious vehicle report implies he was driving erratically to cause someone to call. Although these do not prove the guilt of the P, they point out that it is LESS REASONABLE TO PRESUME INNOCENCE. Notes This is a case that should not be determined by a judge, but by a factinder, considering that a reasonable jury might reach different decisions. Appellate court can only reverse if it was clearly erroneous, which it is not. Jury Nullification Importance of language State v. Ragland SC of NJ 1986 Facts: Ragland was convicted of several offenses. He appealed on the basis that the use of the phrase must find him guilty in the jury instructions inappropriately precluded the jury from its power of nullification, and that the jurys power of nullification was an essential aspect of his constitutional right to a jury trial. Issue: Must a jury be informed of its nullification power in order for a verdict it returns to be valid? Rule: There is no rule, which is why the court must make its decision on the basis of policy. Analysis: The court makes clear its view that jury nullification is undesirable but unavoidable. It says that the jury should only be informed of its nullification power if such information would have a positive result in terms of policy. The court reasons that advertising jury nullification will result in confusion, arbitrariness, and a slippery slope of consequences involving the way attorneys and judges can and should address the jury at trial. Conclusion Juries ought not to be advised of their nullification power. The verdict was reversed on other grounds and a new trial was ordered. Class Notes John, 3 prior DUIs, hits and kills pedestrian Possible Consequences Tort (compensatory and punitive damages), Criminal (punishment jail, suspension) In both cases, there is a rule that has been broken, punishment that has been imposed.

4 What makes them different? Civil Private Law Criminal Public Law Condemnation by society (criminal) judgment of conviction v. Condemnation by individual (civil) Criminal Law today mainly governed by legislature (51 penal codes, the 51st being the US federal govt) **Jury Nullification Juries DO NOT have the right, but they have the power to nullify (i.e. not guilty verdict in the presence of judges instruction to render guilty verdict) If you get a long deliberation and one of the jurors reports to the judge and says one of the jurors does not want to be bound to the rule of laws that the judge say apply, the judge has an obligation to conduct an interview to determine what the juror is actually saying. For example, (pp. 24-25), when judge gets juror to admit to violating his oath, therefore, allowing him to be dismissed. Raglan argued that his constitutional right to a jury trial includes the right to jury nullification. If jury asks do we have the right to nullify? The judge must answer no. If jury asks do we have the power to nullify. The judge can answer yes. **Most courts will not allow defense attorneys to inform/make arguments to juries of their power to nullify 1/11 Punishment pain or deprivation that people wish to avoid - Can be traditional (fines, incarceration) or nontraditional (shaming) - Why we punish? Kent Greenawalt Punishment - Threatened punishment is not always carried out (i.e. a judges decision to not punish in spite of a conviction) - 3 characteristics of punishment o Performed by and directed at agents who are responsible in some sense o Involves harmful or unpleasant consequences o Harmful consequences preceded by judgment of condemnation - Need actual punishment to be followed through with, or threat would lose significance - Justifications

5 o Retributive People who commit crimes deserve to be punished (backward looking) o Utilitarian Justification lies in the purpose the punishment serves (forward looking) Utilitarian Justification Bentham An Introduction to the Principles of Morals and Legislation - Man governed by pain and pleasure - Principle of utility principle that approves or disapproves actions which change happiness of party - Says punishment should not be inflicted when: o It is groundless (the act is not mischievous) o It is inefficacious (when it cannot act to prevent the mischief) o It is unprofitable (when mischief it would create would be greater than mischief prevented) o It is needless (when mischief can be prevented at a cheaper rate) Kent Greenawalt Punishment - Says an act or social practice is morally desirable whether it promotes human happiness better than possible alternatives (i.e. punishment through pain promotes more happiness than pain) - Utilitarian Benefits of Punishment o General Deterrence o Individual Deterrence o Incapacitation and Risk management i.e. prohibition from using guns o Reform can help reform criminal Kant utilitarianism and punishment of the innocent - Questions if punishment of an innocent person is ever justifiable Retributive Justification dominant theory of punishment Michael Moore The Moral worth of Retribution - The distinctive aspect of retibutivism is that the moral desert of an offender is a sufficient reason to punish him or he; prevention of future crimes is a happy surplus for a retributivist but no part of the justification for punishing - Moral culpability (desert) is a necessary condition for punitive sanctions, and gives society the duty to punish offender because it is deserved - negative retribution innocent should never be punished and guilt is a necessary condition of punishment - positive retribution wrong doer must be punished Kant The Philosophy of Law - Judicial punishment should only be administered when the individual has committed a crime (must be guilty and punishable)

James Fitzjames Stephen A History of the Criminal Law of England - Criminal law proceeds to say it is morally right to hate criminals (supports this idea) - assaultive retribution we should treat criminals as rather like noxious insects to be ground under the heel of society - Retributivists only need to believe that morally culpable persons should be punished, irrespective of what other persons feel, desire, or prefer Herbert Morris Persons and Punishment - 4 Propositions concerning rights in regards to punishment o we have a right to punishment o that this right derives from a fundamental human right to be treated as a person o this fundamental right is a natural, inalienable, and absolute right o that the denial of this right implies the denial of all moral rights and duties - Basically says that we have rights defined by nature, and it is reasonable for people who violate these rights to be publicly punished - Thinks system should regulate unfair burdens and benefits to people who cant restrain themselves from acting immorally - protective retribution based on proposition that society has right to punish culpable wrongdoers and criminals have a right to be punished Jeffrie Murphy and Jean Hampton Forgiveness and Mercy Punishment as defeat proposes that retributive punishment is the defeat of the wrongdoer at the hands of the victim The retributive motive for inflicting suffering is to annul or counter the appearance of the wrongdoers superiorirty and thus affirm the victims real value

Utilitarian (we wrote criminal lawsw and set up penalities for their violation in order to prevent harmful conduct) v. Retribution (we should punish guilty people b/c they deserve it) basically rehabilitation v. eye for an eye Class Notes (1/11) - Most criminal cases are not resolved at trial usually plea bargains - Nullification can have powerful consequences State is impacted the most is because of double jeopardy (defendant walks and cannot be tried again) - Race plays a significant part in our criminal justice system - Punishment o Individual liberties is one of the significant values of our society o Condemnation o Authorizaiton

7 The authorization to impose the punishment is the governments conviction Government through its agent , by virtue of the defendants conviction, intends to enforce punishment o Punishment requires moral justification Bentham o Says people act in their own self-interest and that people will act to increase their own pleasure despite possible adverse consequences to someone else o Utilitarian we punish people so society ends up with a net benefit of less crime o To punish one has to commit an act for which they are blameworthy o Note 2 p. 32 says sexual predators can be kept incarcerated via civil proceeding, b/c of net benefit to society basically

The Queen v. Dudley and Stephens Queens Bench Division, 1884.14 Q.B.D. 273. Dressler p. 47-48, 542-545 Facts: The defendants were stranded on a ship at sea with two other men with nothing to eat. Under severe duress, the defendants decided to kill and eat one of the other passengers. The fourth man objected, but ended up eating as well. Notes and Questions There is no way Dudley and Stephens should have been punished. There is no way that the outcome that would be encouraged by punishing the defendants would be superior to the outcome that transpired. If the defendants had been successfully deterred from eating the victim, all four of the men would have died. Even if a death sentence were passed on Dudley and Stephens, the outcome as it was would be superior to the outcome that society apparently desires if it would pass said sentence. My reasons are basically entirely utilitarian, but even a retributivist would have to agree that D & Ss actions are hard to classify as typically criminal. 2. The legislature could write a statute that says a defendant shall not be found guilty of murder if in the absence of the killing both the defendant and the victim would have died of starvation. 3. This note is tempting us to say that Parkers life was not worth as much as those of the other three men. Tricky, tricky! Issue: Did the killing under the circumstances constitute murder? Was it necessary to kill the boy? Analysis: The court says that the force behind the killing in this case 1.

8 is a sort of temptation to do something that is known to be wrong rather than the necessity of self-preservation. Holding: Original Sentence was Death penalty but on appeal it was reduced to 6 months People v. Superior Court (Du) California Court of Appeal, Second District, 1992.5 Cal.App.4th 82, 7 Cal.Rptr.2d 177. Facts: The Du family ran a liquor store. The defendant didnt usually work the counter at the store, but was working there on the day of the crime. The defendant thought the victim was shoplifting, and tried to stop her. There was a struggle, and the victim punched the defendant in the eye twice. As the victim apparently prepared to pay for the item the defendant thought she was stealing, the defendant first threw a chair and then shot the victim in the back of the head. The defendant made various claims at trial about not remembering firing the gun and not intending to kill the victim. The jury found her guilty, so it implicitly must have found that these claims were untrue. The probation officer said Mrs. Du was unlikely to commit anothehr crime but recommend she be sentenced to prison. Voluntarty Manslaughter means not justified or excusable murder. Voluntary Manslaughter - Intentionally and without any just defense (insanity, duress) killing someone Issue How much punishment is it just for Du to receive? Rule A just punishment should: 1) protect society (utilitarian), 2) punish the defendant for wrongdoing, 3) encourage the defendant to be good in the future, 4) deter other crimes, 5) incapacitate the defendant, 6) make restitution for the victim, and 7) be comparable to punishments for similar crimes. Analysis The court reasons that of these frequently used justifications for punishment, most either dont give any guidance or suggest Mrs. Du should not be punished. The court says that there is value in punishing Mrs. Du for wrongdoing. (uses combination of utilitarian and retribution in sentencing) The court also argues that even though a firearm was used, this is an unusual case for three reasons: 1. 2. The statute is intended to apply to criminals who arm themselves to go out and commit crimes, as opposed to shopkeepers who keep firearms for self-defense. The defendant has no criminal record.

9 3. The defendant was under duress. The court found that the act was partially excused by the fact that the victim had attacked the defendant with her fists. - Remorse doesnt really factor into retribution BW - Appellate court also found that judge did not abuse her discretion Conclusion The court suspended a ten-year sentence and put Mrs. Du on probation. Notes and Questions 1. I debated between sentencing the defendant to the maximum term and letting her off on probation. The only reason I could see for sentencing the defendant would be to try to deter similar behavior in the future. I think even a death sentence may fail to bring about general deterrence, and of course the cost to Mrs. Du would be enormous. Therefore, since even the maximum penalty allowed by law would probably fail to deter, I would let her off on probation. 2. A judge should consider the effect of a verdict on the community, but most of the time, the effect on the community will be small compared to the possible long-lasting impact of a profoundly unfair, unjust, or simply illegal verdict. If returning a patently unjust verdict would save hundreds or thousands of lives that are immediately threatened, then this should be taken into account. This goes for the case of adjusting later verdicts based on public reaction to earlier ones. If the next completely legal verdict will cause a thousand people to die but an unjust verdict will kill one person now and five hundred in the next five hundred years, the court should announce the unjust verdict. 3. Mercy is inefficient because it creates uncertainty of information in the criminal justice system. Certainty of information ensures that at least in the macro sense, people will make rational decisions about committing crimes. If we set up the right system of carrots and sticks, and its swift and sure, we hope to be able to deter most crime. - Tension between utilitarian and retribution (i.e. Dudley) BW - Definition of punishment: When an agent of the govt pursuant to the authority, by conviction, the agent inflicts pain on the defendant or forces them to inflict some unpleasant consequences o Shaming Case man had to wear sign for 8 hours saying he stole and it was upheld (rare) 1/15

10

Chapter 3 Modern Role of Criminal Statutes Jeffries There are three doctrines that balance the roles of the courts and legislatures in making criminal law: 1. The principle of legality says that courts should not create new crimes. - There is no crime without preexistent law and no punishment without preexistent law (purpose is forseeability) - BW 2. The doctrine of void-for-vagueness says that legislatures have to explain what they mean and not leave all the work up to the courts. Also effects your autonomy interest by knowing whether activity crosses the line or not. The law should give fair notice to the ordinary person what conduct is allowed or not. Want to prevent police from arbitrarily abusing their authority. 3. The rule of strict construction says that if a criminal law is uncertain, it should be decided with a slant in favor of the defendant. 1. The Requirement of Previously Defined Conduct Commonwealth v. Mochan Superior Court of Pennsylvania, 1955.177 Pa.Super. 454, 110 A.2d 788. Facts The defendant harassed a woman on the phone. His conduct was not forbidden by any particular statute, but a general provision in the Pennsylvania Penal Code grandfathered in common law crimes. The defendant was convicted. He appealed on the basis that his conduct did not constitute a common law crime. Issue Can the court uphold a conviction for a misdemeanor based only on common law? Rule Any act that outrages decency and is injurious to public morals is a misdemeanor under common law. Analysis The majority finds that the conduct would be considered outrageous by most people, and thus could have been punished under common law. In turn, the grandfather provision in the Pennsylvania Penal Code says that any act that is a crime under common law is still a crime. Therefore, states the majority, the conduct of the defendant is a misdemeanor. Judge Woodside dissented, arguing that the majoritys decision inappropriately took away the power and responsibility of the legislature to make criminal laws. Woodside argues that what the defendant did was never a crime in Pennsylvania before, and its up

11 to the legislature rather than the courts to make it a crime in an age when statutes dominate the criminal law. Woodside says the judiciary must use self-restraint and not overstep its bounds just like the other two branches of government. Conclusion The court upheld the judgments and sentences. Judge Woodside dissented. Notes and Questions 1. The majority would argue that this ruling does not create a new crime, but rather enforces a prohibition that has long existed against a certain type of conduct. They would explain that this must be the intent of the legislature in including the grandfather section of the Penal Code. On the other hand, Woodside would claim that this is a clear violation of the principle of legality. Judge Woodside would say that phone harassment was not a crime as defined by statute at the time of the courts ruling. Statutes are the primary way contemporary criminal law is defined. Therefore, Woodside would conclude that the court created a new crime. 2. I think the ruling and dissent create a good balance: they enforce a just result in the present case, but also serve to warn the legislature that they need to stay on top of developments in contemporary society and define new crimes to fit new technology. In a way, the court says: You got away with it this time (well punish the guy). But next time, we might let the guy off unless you write a statute. I dont think the court should make a habit of creating crimes, but if the legislature has been snoozing, I think its reasonable for the court to step in and set things right. In general, however, we believe that elected and accountable representatives ought to draft criminal laws rather than appointed and unaccountable judges. If the legislature had punted by passing an enormously broad statute saying that anything bad is criminally punishable, they would be violating the doctrine of void-for-vagueness. Even if justice had been served in the present case, the legislatures irresponsibility would open the criminal justice system open to unbelievable abuse. 3. At the time of this case and in this courts jurisdiction, sodomy is illegal while adultery is not illegal. Many people today do not agree that this should be so, but it would explain why solicitation of one act is illegal and not solicitation of the other act. 4. So common law is no longer controlling, but it does have authority and influence.

Chapter 3 ***** There is no crime without pre existing law and there is no punishment without pre existing law 2. the statutes have to be clear enough that people know what is and what isnt criminal. 3. arbitrary and discriminatory enforcement. l

12

Keeler v. Superior Court Supreme Court of California, 1970. 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617. Facts The defendant accosted the pregnant victim and shoved his knee in her abdomen, damaging the fetus and causing it to be stillborn. The defendant was charged with three criminal counts, including murder. In response the defendant filed a writ of prohibition to stop the proceedings. Issues Is the fetus a human being? Can the defendant be charged with its murder? Rules The California Penal Code is to be interpreted in light of the common law it codified. Cases from common law rule that only a child who has been born can be murdered. The Penal Code further forbids the courts from convicting or punishing anyone for a crime not specified by statute. Statutes are to be interpreted in the manner most favorable to the defendant. Finally, no one can be convicted of an act they committed before that act was a crime, in other words, no one may be punished under ex post facto (after the fact) legislation. Only legislature can create crime; no common law crimes in Calif. Analysis The majority reasons that the defendant may only be indicted for murder if the fetus was a human being under the definition used in the California murder statute. The words human being were chosen at the time the statute was written, which was in 1850. The court argues that in 1850, an infant could only be murdered if it had been born alive. Therefore, the words did not mean to include fetuses. In response to the States argument that the common law requirement of live birth was outdated due to advances in medicine, the majority enumerated two obstacles to any change in the criminal law. First, the majority, explains, the constitutional separation of powers and the principle of legality prevent the court from creating new crimes. (No common law crimes, therefore court has no jurisdiction to expand statute) Second, even if the court expanded the statute to include the conduct of the defendant, the change would not apply retroactively because of the Constitutional guarantee of due process. The defendant would have to know in advance that such conduct is illegal. The court finds that the defendant could not have foreseen a change in the murder statute, and thus holding him to the change would violate his right of due process. (Fair Warning person of ordinary intelligence should be able to look at statute and know what is prescribed and what isnt BW) Acting Chief Justice Burke dissented, saying that the common law was a product of its time, and that the courts interpretation of the murder statuteand in particular its

13 working definition of human beingshould take into account changes in medicine that would allow a fetus at the stage of Baby Girl Vogt to live outside the womb. Burke says that convicting the defendant of murder would not create a new offense, and thus would not violate the principle of legality or overstep the bounds of the court. Burke says that the legislature intends the words human being to be construed broadly and in such a way as to promote justice. Cites Chavez which says that a fetus can be interpreted as a human being and could be viewed as a human being. He further argues against the majoritys contention that the defendant would lack fair warning and that the defendants right to due process would be violated. Burke claims that the defendant would know from common sense that he could be indicted for murder for killing a viable fetus. Conclusion The court rules that the Superior Court does not have the power to convict the defendant of murder. Burke dissents. **BW Dissent doesnt seem all that persuasive. Its a moral/social policy question that should probably be answered by the legislature. BW Just because something is morally reprehensible doesnt necessarily mean its a crime. Notes and Questions 1. The statute broadens murder further than Justice Burke felt was required (with the explicit exception of abortion). He wanted the statute enlarged so that the term human being included the fully viable fetus. The statute as written seems to include all and any fetuses. Burke would have wanted the legislature to amend the statute to make the term human being more inclusive rather than simply append the words or a fetus. So the protection of due process is the judicial analogue of the prohibition on ex post facto laws. Accepting or rejecting the principle of legality versus the principle of crime by analogy runs in parallel to a societys value judgment between the presumption of innocence and the presumption of guilt.

2. 3.

Ex Post Facto ONLY applies to the legislature. The Constitution prohibits the enactment of ex post facto laws. These are laws that permit conviction and punishment for a lawful act performed before the law was changed and the act made illegal. Due Process APPLIES to both legislature AND courts. In criminal law, the constitutional guarantee that a defendant will receive a fair and impartial trial and that they will be aware of what is a crime. 2. The Values of Statutory Clarity

14 In Re Banks Supreme Court of North Carolina, 1978. 295 N.C. 236, 244 S.E.2d 386. Facts Banks was indicted under the Peeping Tom statute. Banks argued that the statute was unconstitutionally vague. Issue Is the Peeping Tom statute void for vagueness? Rule In order to be constitutional, a statute must clearly and with a reasonable degree of certainty tell persons who are subject to it what conduct is forbidden. Analysis The court identifies and rejects two arguments made by the defendant: The defendant argues that the word secretly fails to clarify the intention of the statute. The court says that this word conveys a definite idea that any reasonable intelligent person can understand. 2. The defendant argues that the statute is unconstitutionally broad and could prohibit innocent conduct. The court counters that the statute is sufficiently narrowed by judicial interpretation that someone could not be conviction of merely accidentally looking in someone elses window. Conclusion The court upheld the statute as constitutional. BW- Statutes are presumed to be constitutional so a court will try and find a way to interpret them as such. Will look at words, purpose, and type of mischief involved. Must look at every word b/c the words are not superfluous. Lenity Doctrine statutes should be strictly construed in favor of the Defendant. Notes and Questions 1. It doesnt seem as though the statute takes into account the defendants intent. Therefore, even if the defendant believed that the victim wanted to be spied upon, he would still be guilty. The court seemed to add, out of the blue, the concept that the spying is wrongful and that it is for the purpose of invading the privacy of the female occupant of the room. Under this interpretation, the defendant might not be found guilty if he can prove he didnt have bad intent. Maybe the court was creating a new use for the same phrase. Despite its technical meaning, I think it can be reasonably understood in this context and is relatively uncontroversial. The void-for-vagueness doctrine goes hand in hand with the presumption of innocence. It seems that as a society we find it desirable that regular lawabiding citizens not be forced to steer clear of broadly defined criminal behavior, even if that means some clever crooks will get away with bad behavior because of strict construction of the criminal statutes. It seems ridiculous that people should read the criminal statutes. In practice, 1.

2.

3.

4.

15 we usually say that ignorance of the law is no excuse. I dont think were on safe ground if we predicate that principle on the fact that we publish a list of all the crimes in a big book. I think when people use this phrase, they mean that you should have known that what you were doing was wrong whether or not you ever looked at statutes. If there wasnt prior case law on the abominable crime statute, it would be hard to argue that reasonable people would know what the heck they were talking about. Gigli might just as well be the abominable and detestable crime against nature. This seems to take things further into the realm of the ridiculous. It also makes you wonder if you could challenge a law on the books simply because its so old and obscure that nobody remembers it. Maybe it would be desirable for the sake of notice to have all criminal statutes expire after, say, twenty years, at which point they must be considered again. Hopefully, the public would then take more interest in the statutes and become more aware of their contents. I think the statute is rather clear in the most important sense: it defines conduct to be forbidden that is clearly bad: it causes substantial emotional distress and is intentional and malicious. I cannot imagine legitimate conduct that would be accurately described by the statute. The court seems to have three sides of its mouth. In addition to the two mentioned, the court also says that between finding a law constitutional and finding it unconstitutional, it must lean towards finding it constitutional. It looks like the doctrine of lenity has been severely limited, and legislative intent plays a much bigger role. Will strict construal of criminal laws really prevent selective enforcement? Wont bad cops still be bad?

5.

6.

7.

8.

B. Statutory Interpretation Language of the statute The plain meaning Dictionary meaning If the statute is ambiguous the court can look to the legislative intent Legislative purpose The grammar of the statute is indicative of the legislative intent. Attendant circumstances it is presumed that the mens rea does not apply to attendant circumstances of the crime. Lenity doctrine The doctrine that the statute should be strictly construed against the government. In the absence of ambiguity the rule has no application, some jurisdictions use it as a tie breaker NYPC/MPC Does not have the lenity doctrine but construes statutes to their fair import (i.e. communitys general understanding of a term) MPC A mens rea term applies to every material element unless it is indicated otherwise.

16

Chicago v. Morales http://www.streetlaw.org/chicagovmorales.html Concl: Unconstitutional ordinance rewritten in order for police to disperse gangs who loitered in order to gain control over areas BW Statutes are never construed in a vacuum. Banks good example of this. Keeler shows how use of common law can help construe a statute. United States v. Foster US Ct Appeals, 9th Cir. 1998 Facts Foster was a methamphetamine manufacturer. Got pulled over , and in his truck bed in a zipped up bag underneath a tarp, there was a gun. Issue Whether the court should adopt a narrow or broad definition of the word carry? Was the D carrying a gun when he drove with it in his truck bed Holding Narrow Rationale Court says that it is too broad for the word carry to encompass transport in this case. Thought the gun needed to be immediately available. Thought that a gun in a bag under a tarp in a truck bed poses less risk. Also thought it was Congresss role to define it better, not the courts. Uses rule of lenity as another justification. Dissent Cites Barber (arrested w/ gun locked in glove compartment) which stated the ordinary interpretation of carry encompasses this type of transporting. Takes perspective of drug trafficker and says they will adapt to this new standard in a negative way. Notes When presented with a similar question in Muscarello, the SC sided with the dissent *** You have to look at the behavior that the statute was trying to prevent*** CHAPTER 4 Actus Reus Introductory Comment: Defining Actus Reus - A crime has two parts: the mental part (mens rea) and the physical part (actus reus). Actus reus can be interpreted to include your conduct, the harm that your conduct caused, plus the causal link between the conduct and the harm. Murder requires a physical result (a dead person). Some crimes, however, dont require a result immediately caused by your conduct (e.g. drunk driving). They may require something called social harm, about which more later. A. Voluntary Act requires conduct and the result - BW

17 Martin v. State Alabama Court of Appeals, 1944.31 Ala.App. 334, 17 So.2d 427. Facts Martin was arrested at home and taken onto the highway, where he showed signs of being drunk. He was convicted of being drunk on a public highway and he appealed. Issue Does the accused have to go onto a public highway voluntarily to be convicted of being drunk on a public highway? Rule You cannot be convicted of being drunk on a public highway if you were forcibly taken to that place by a police officer. Analysis The case is pretty clear-cut. Even though the particular statute cited doesnt explicitly require a voluntary act, the court says that basically a voluntary act is part of the nature of any crime, and thus this particular conviction was in error. Conclusion The conviction was reversed and Martin was found not guilty. Conduct is appearance in public place and loud and profane discourse BW If he was drunk b/c some guy tricked him into drinking and he wasnt aware, hed still be considered intoxicated - BW Could look at police bringing Martin to highway as being no act at all - BW Notes and Questions 1. We dont punish people for their thoughts any longer, but should we? Its argued that its impossible to really know what people are thinking. It is also suggested that we require an act as well as a thought because we want to make sure the person cannot be deterred and because we want to prevent multiple prosecutions. Its suggested that we might want to arrest someone who freely confessed to intending to kill the President. If we did this, however, no one would confess their intention, and thus our opportunity to prevent the act would be taken away. If I was a retributivist, I might be skeptical about whether mere thoughts earn societys condemnation, and thus whether such thoughts are punishable. If I were, more specifically, an advocate of victim vindication, I might be of two minds on the matter: on one hand, I would figure that since no act had transpired, no false moral statement had been made that was in need of correction. On the other hand, I might believe that given the chance, we ought to correct false moral thoughts in a persons mind before they are expressed in action. Barring liability for purely involuntary conduct seems to be a strongly utilitarian idea. If an act cannot be deterred, there need not be punishment for that act. We clearly cannot deter involuntary actions. Thus, we should not punish involuntary actions. Let me take a stab at a definition of a voluntary act: a voluntary act is a bodily

2.

3.

18 motion accompanied by a mental state which is reflective of the intent to perform the motion. Well, well see how that holds up. State v. Utter Court of Appeals of Washington, 1971. 4 Wash.App. 137, 479 P.2d 946. Facts: The defendants son was seen entering their apartment. The son was heard to say Dad, dont and then was seen in the hallway of the building, stabbed in the chest. He said Dad stabbed me and then died. The defendant was charged with second degree murder and convicted of manslaughter. He appealed on the basis of a conditioned response theory that was barred by the trial court. Issue: Should the trial court have instructed the jury to ignore the evidence about conditioned response? Rule: The theory should have been presented to the jury if there was sufficient evidence to support it. Analysis: The court feels that the defendant makes an appropriate argument, at least in theory. If homicide requires an act, and an act is implicitly a voluntary act, then it follows that the killing of Utters son must be found to be voluntary in order to be found to constitute homicide. The court finds, however, that there is insufficient evidence in the record for the jury to consider whether or not the defendant was conscious or acting voluntarily at the time of the killing. Conclusion: The court affirmed the trial courts verdict (according to the full version of the case). No evidence that says if he was approached from behind, and he basically is trying to substitute his voluntary act of getting intoxicated for the involuntary act of murder BW Voluntariness of getting drunk is not a defense - BW Notes and Questions 1. It seems that the something that distinguishes voluntary from involuntary action is intent, but we havent discussed intent in class. The Model Penal Code says that an act can be construed as either voluntary or involuntary, but that a voluntary act is a necessary element in any crime. If you are acquitted on the ground of insanity, you could be involuntarily committed; if you are acquitted on the basis of automatism, presumably you would be able to just go home, or maybe to a hospital. It looks like there is one meaning of involuntary that means coerced, or

2.

3.

19 maybe even antivoluntary against ones will. The sense of involuntary in the present case seems to be more like sans volition no will whatsoever. Its sort of like positive (voluntary), negative (anti-voluntary) and zero (involuntary). So if you intend to do something but dont intend to do harm, this does not constitute mens rea. If you are aware that you will cause harm or could cause harm, I suppose that would constitute mens rea. It is true that conduct during an epileptic seizure is involuntary. The choice to get in the car in the first placein full knowledge of the fact that you have epilepsy and could harm others by drivingis voluntary. Thus, for an epileptic, it could be argued that operating a motor vehicle at all constitutes operating a motor vehicle in a reckless or culpably negligent manner. The prosecution would argue that getting into the car in the first place is the voluntary act necessary under Model Penal Code 2.01 (1). The Model Penal Code ( 2.01 (4)) says that you cant be convicted for possession unless you were aware of having the forbidden thing long enough to get rid of it. One does not choose to be an epileptic. Therefore, no one could be convicted of the crime because there is no voluntary act associated with it. I suspect that such a statute would be unconstitutional, but I could not name the particular grounds on which it could be overruled. Epileptic seizures themselves are only somewhat more voluntary than being an epileptic insofar as these seizures may be controlled by medication. B. Omissions (Negative Acts) 1. General Principles

4.

5.

6.

7.

People v. Beardsley Supreme Court of Michigan, 1907. 150 Mich. 206, 113 N.W. 1128. Facts: The defendant holed up with the alleged victim at his residence and drank for an entire weekend except for Sunday afternoon. The victim apparently overdosed morphine and died after the defendant left her with a neighbor. The defendant was charged with manslaughter. The defendant appealed. Issue: Was Beardsley responsible for an omission that would make him liable for Burnss death? Rule: Omission is defined as the neglect of a legal duty, rather than a merely moral duty. Analysis: The court finds that Burns was not Beardsleys wife or child and Beardsley was not Burnss custodian or caretaker. The court notes that Burns was an adult and cavorted with Beardsley of her own free will. The court suggests that there would be no question of a legal duty if the principals in this case had been two men. It should not

20 make a difference, it is argued, that the victim was a woman. The court concludes that Beardsley had no legal duty towards Burns. Conclusion: The court set aside the conviction and let Beardsley go free. It is harder to criminalize omissions, but there a host of reasons that one can perform an act-BW Omissions are much more ambiguous than wrongdoings BW Dutys to act may come from 1. statute 2. where one stands in a certain relationship status to another 3. where one has assumed contractual duty 4. where one has voluntary assumed the care of another Notes and Questions 1. I disagree with Hughes in that he neglects ones duty to oneself. If the court set up incentives such that everyone had the legal duty to help others upon pain of punishment, the potential helplessly ill person will in turn be given less incentive to help themselves when they are likely to be the cheapest cost absorber in a given situation. I believe that if you accept Hughess argument, you must also accept that Beardsley would have to be held responsible for failing to come to the aid of a male drinking partner. I believe that this is bad policy, but that it is not as far fetched as the court would have us believe. 2. This sounds like the good Samaritan rule. 3. I believe this is a duty that could be appropriately imposed by statute, that is: if you have some connection to the apparent perpetrator of a crime, then you have some responsibility to intervene to help the victim. I dont think Nix would have a duty to act if she was riding in a taxi and heard someone crying for help in the trunk, even if she was left alone in the taxi for a time. Generally, however, this is a situation where we would like to create a strong incentive for someone with the capacity to act to do so to prevent harm. She ended up being convicted, but then she got off on procedural grounds, not the issue at hand - BW 4. Ahathis sounds like a classic collective action problem. People fail to ask themselves, If not me, who? They all assume someone else is going to take care of it, and therefore no one takes care of it. 1. So omissions can be more ambiguous than actions. We dont know where to draw the line between punishable and non-punishable omission. We also dont want to encourage people to intervene when they might do more harm than good. A difference is asserted between positively causing a harm and negatively withholding a benefit. I dont think we should punt on omission as an element of crime just because its difficult. We should draw the lines we can draw while assuring fair notice and lenity, but when the omission is clearly abhorrent to society (a retributivist justification) or when an inexpensive act

21 could prevent an excessively expensive harm (a utilitarian justification), it ought to be a crime. 2. This does not seem like a good policy. What is the benefit in holding someone blameless when they wont come forward to report knowledge of an impending crime? We ought to give that potential informant a strong incentive to come forward. I suppose we do so with positive rewards, like on Unsolved Mysteries (these are our carrots) rather than with negative punishments (sticks). Is this adequate? 2. Distinguishing Acts From Omissions

Barber v. Superior Court California Court of Appeal, Second District, 1983. 147 Cal.App.3d 1006, 195 Cal.Rptr. 484. Facts: The deceased went into a vegetative state. The family asked the doctors to take him off life support. They did. The state charged the doctors with murder. A magistrate dismissed the charges, but the Superior Court reinstated them. The doctors filed writs of prohibition which were considered by the Court of Appeal. Issue: Can a doctor be tried for murder for taking a patient off life support with the familys consent? Rule: Life sustaining treatment must be continued when it is proportionate. In other words, the treatment must be continued so long as the benefits exceed the costs. Analysis: The court says the main question is whether the omission (no longer providing life sustaining care) was lawful. The omission was lawful if there was no legal duty to act. There is no duty to act if the prescribed course of treatment has been shown to be ineffective. In this case, the treatment is ineffective because the patient will never recover substantial brain function. Conclusion: The court found for the appellants and determined they must not be tried for murder. Court basically says there are some circumstances where it could be viewed as an omission or an act BW Notes and Questions 1. 2. Leavens turns it around and says that treatment equals non-action, while nontreatment equals action. The court ruled that withholding an injection is an omission, therefore providing an injection would be an act and not an omission. On the other hand, failing to provide insulin would be an omission, but could well be a breach of a legal duty, and therefore the doctor could be liable for the death of the patient.

22 The actions or omissions of the doctors in Barber were different than the others mentioned because the family approved of the doctors actions and gave written consent. I would think that the homeowner acted by closing the door. The door would have remained open if the homeowner had not acted to close it. In terms of morality, I think the answer doesnt matter, however, legally, it would be more likely the homeowner could be held liable for actively closing a door than passively not opening a door. We punish omissions far more rarely than actions, and the standard for punishing an omission is higher than that for punishing an action. In the case of John and Mary, common sense dictates that action and non-action are morally equivalent, and Aaron should in no way be held responsible for either. Claiming otherwise would implicit assert that Johns life is worth more than Marys or vice versa. Even though the presence or absence of a certain defense should not affect the courts ruling on the law, it might have. I think the court didnt want the defendants to be tried. The court might have gone a different way on the law if the defendants had some other defense. The constitutional right to die is not decided here. C. Social Harm The thing that distinguishes crimes from torts is social harm. This harm is clear when someone commits a result crime. What about conduct crimes? They involve social harm, in a sense. They may involve the negation of a social interest. Some result and conduct crimes may actually overlap. Also, some crimes require a certain condition (which is not conduct) in order for the crime to be committed.

3.

4.

Notes and Questions 1. How aboutyou must be driving an automobile as opposed to some other vehicle. The car as opposed to tricycle part is not really conduct, its really an attendant circumstance. 2. I think this statutes conduct is basically any action at all. The result must be the death of someone. The attendant circumstances would be the presence of purposefulness, knowledge, recklessness or negligence. With burglary, the conduct is breaking and entering. I dont think any particular result is set in stone, except perhaps something in or around the house must be broken, like a lock or a window (but maybe not). The attendant circumstances are the fact that the building entered is a dwelling house, the fact that it belongs to another (i.e. you cant burgle yourself), the fact that its nighttime, and the fact that you intend to commit a felony. United States v. Cordoba-Hincapie

23 United States District Court, E.D. New York, 1993. 825 F.Supp. 485. Dressler, p. 131-132 Rule: A wrongdoers state of mind is to be taken into account when deciding whether punishment is appropriate and how much to mete out. Notes and Questions 1. Mens rea has a broad meaning and a narrow meaning. The broad meaning is guilty mind, wicked. The narrow meaning(elemental) is the mental state required to find someone guilty of an offense. You might have some general kind of guilty mind but still not be found guilty of an offense because you didnt have the right type of guilty mind. Narrow meaning culpability that is set forth in the statute that defines the crime? 2. Why do we require a guilty mind or criminal intent? Why might utilitarians require a guilty mind? Utilitarians would find it inefficient to punish conduct that cannot be deterred. If something is done by accident, punishment would only add to societal harm. Retributivists find it reprehensible to punish the innocent, and one type of innocent person is one who is innocent of criminal intent. Im a little confused whether lack of mens rea equals accident or mistake, or if, on the other hand, mistake is only one possibility among others, or if lack of mens rea implies something altogether different. Regina v. Cunningham Court of Criminal Appeal, 1957. 41 Crim.App. 155, 2 Q.B. 396, 2 All.Eng.Rep. 412. Facts: Cunningham stole the gas meter from the basement of the house he was going to live in, unknowingly causing gas to be released into the neighboring house and threatening the life of his future mother-in-law. Cunningham was found guilty by a jury based on instructions to which the defendant takes exception. Issue: Did the trial judge give the jury the wrong definition of maliciously? Rule: Malice is not merely wickedness, but either an actual intention to do the particular kind of harm or recklessness as to whether such should occur. Thinks it is difficult to say that Cunningham met the criteria of recklessness - BW Analysis: The court finds that the trial judge used the old, incorrect definition of malice instead of the one cited. Conclusion: The court quashed the conviction. Notes and Questions

24

To convict a person of arson, the Government must prove, aside from the actus reus, that the person either actually intended to cause the burning of the dwelling house of another or recklessly took the risk of such burning. 2. In this case, the trial court used the culpability approach to mens rea, while the Court of Criminal Appeal used the elemental approach. 3. The Court of Criminal Appeal defines recklessness as the mental state of foreseeing that stealing the gas meter might hurt somebody. There is no evidence in the record that Cunningham foresaw that his action might cause injury to someone. People v. Conley Illinois Appellate Court, 1989. 187 Ill.App.3d 234, 134 Ill.Dec. 855, 543 N.E.2d 138. Dressler, p. 135-137 Facts: Conley hit a kid in the face with a wine bottle. The victim broke his jaw and permanent negative effects. Conley was found guilty of aggravated battery on the basis that the victim suffered permanent injury. The defendant appealed, arguing that the State failed to prove there was a permanent disability (Raising question whether state has proved social harm aka actus reus) and that Conley intended to cause a permanent disability(mens reus). Issue: Primarily, did the defendant intend to cause permanent disability? Rule: Under Illinois law, someone intends to do something when that something is the conscious objective of his conduct. Someone does something knowingly when they are consciously aware that something is practically certain to happen based on his conduct. Analysis: The court reasons that according to the aggravated battery statute, it must be proven that either it was the defendants goal to achieve a particular harm or that the defendant was practically certain that the harm would follow from his conduct. The court reasons that the circumstances taken in total suggest that the intent to cause permanent disability could be inferred. Conclusion: The court upholds the conviction. Notes and Questions 1. The actus reus of battery is clear, the mens rea is less clear. Simple battery, at common law, was a misdemeanor, but aggravated battery was a felony.

1.

25 2. As far as result crimes go, intent includes Illinois intent and Illinois knowledge at common law. If the example presented occurred in Illinois, a court might find that Roger killed Zachary with intent and killed his wife with knowledge. It seems that it is usually true that one can reasonably infer that a person intends the foreseeable consequences of their actions. However, intent cannot be presumed, but rather must be proved beyond a reasonable doubt. The jury is not barred from using their common sense. This is very similar to the concept of transferred intent in intentional torts. Dressler and others argue that transferred intent is unnecessary to obtain a just result. They say that even if, for example, the human being killed was different than the human being the defendant intended to kill, the actus reus and mens rea are still present under the common forms of the criminal homicide statute. The difficulty arises, Dressler argues, when you try to transfer intent not only between different victims, but different crimes. This holds in torts, but it is argued it ought not in criminal law. (Need to look at what does the statute require that youre going to charge the person with rather than mens rea there might be different social harms BW)In the case where a defendant intends to kill a woman but instead causes the death of a fetus after it is born, there are some word problems. D intends to kill a human being. The fetus is not a human being (under, for example, California law) at the time of the stabbing. However, the fetus is a human being at the time of its death. I see this as analogous to a situation where D runs through X with a sword and doesnt see Y standing behind X. Say X only gets wounded but Y gets killed. D should be convicted of intent-to-kill murder of Y. Therefore, by analogy, D should be convicted of intent-to-kill murder of the fetus. I dont see a problem with this. If D intended to murder someone, and someone got murdered, and D was the cause of their death, then D should be convicted of their murder. D could absolutely be convicted of two murders. Again, if D runs through X with a sword, and Y is standing behind X and D manages to kill both X and Y, D should be convicted of two murders. In the case where Y is merely wounded, D should be convicted of murder and attempted murder. In the other case, D should be convicted of attempted murder of X and murder of Y. If D intends to kill someone, I dont think the consequences of Ds actions should have much bearing on Ds conviction and punishment. In fact, a utilitarian might make an argument that the penalty for attempted murder should be just as high as

3.

4.

5.

26 that for murder. If I was going to argue against the application of transferred intent, I would argue first that transferred intent is properly the realm of torts and should not be applicable to the criminal law. Next, I would make a retributivist argument that if D didnt mean to do something to a particular person, D shouldnt have to pay for what he did to that person. Finally, in terms of policy, I might argue that unbounded use of transferred intent would uncontrollably increase the number of prosecutable crimes and criminals and would overwhelm the justice system. There are three types of general intent/specific intent dichotomies: (1) General intent may refer to an offense for which no particular mental state is mentioned in the statute. Specific intent, on the other hand, could refer to an offense that sets out a particular mental state as part of the crime. (2) Specific intent may also mean the mens rea element of intent or knowledge, whereas general intent may mean recklessness or negligence. (3) Furthermore, general intent may mean any mental state that only relates to the acts that constitute a crime, whereas specific intent would mean, in this case, a special mental element above and beyond the general intent. When you have a specific intent crime, there are typically three types: (1) intent to commit a future act, (2) proof of a special motive, and (3) proof of awareness of attendant circumstances. A. Here, there is specific intent to commit a future act: the intent to steal. B. This is a general intent crime. Conduct that is morally blameworthy C. This is a specific intent crime which requires knowledge of the attendant circumstance that the property is stolen. D. This is a specific intent crime which requires the intent to commit a future act: the intent to commit a felony.

6.

American Law Institute Commentary 1. 2. 3. 4. Mental culpability must be proved with respect to each element of an offense. The Model Penal Code draws a distinction between purpose and knowledge. In the Model Penal Code, Recklessness means aware of substantial justifiable conscious risk creation and take that risk. Negligence means creation of substantialrisk of which the person

27 ought to be aware. If a statute doesnt say otherwise, a person must be proven to have acted purposefully, knowingly or recklessly.

5.

Model Penal Code 2.02 Notes and Questions 1. A. Jacob killed Vanessa purposely because thats his conscious object. Jacob killed Xavier knowlingly too, because 2.03(2)(a) says that the actual result differs from the contemplated one only in the respect that a different person was killed. B. I think Roberta killed Sam negligently. If she sincerely believed that Sam would not be harmed, she didnt know of the risk to Sam. However, she should have known. C. I think this might bump the culpability up to recklessness because Roberta would now be aware of the risk, at least minimally. I argued that 2.03(2) means that Xavier was killed purposefully (transferred intent). 2.02(3) specifically excludes negligence as a kind of culpability that can be attached to an element of an offense if its not specifically established. Thus, Toby is not guilty of robbery. I would argue that my clients purpose was not to kill or harm, but to steal a car. Therefore, my client did not act purposefully with respect to the material element of the crime that requires him to intend to cause death or serious bodily harm. I think this is how the Model Penal Code would deal with this too. Each element must be done purposely. Negligently doesnt cut it. 3. Knowledge of Attendant Circumstances

2. 3.

4.

State v. Nations Missouri Court of Appeals, Eastern District, 1984. 676 S.W.2d 282. Dressler, pp. 145-148 Facts: Nations owns a disco where police officers found an underage girl dancing for tips. Nations was charged with child endangerment and was found guilty. Issue: Did the state show that the defendant acted knowingly in endangering the welfare of a child? Rule: In Missouri, the Criminal Code dictates that in order to prove that someone did something with knowledge, you must show that they were aware of the attendant

28 circumstances necessary to constitute an offense. Analysis: The court basically punishes the Missouri legislature and the people of Missouri for not adopting the Model Penal Code in full. The court suggests that if the state wanted Nations to be convicted in this case, they should either have made the standard of culpability recklessness instead of knowledge for the offense of child endangerment, or else they should have had a provision incorporating so-called wilful blindness as a version of knowledge. MPC and Missouri statute of knowingly deals with attendant circumstance (girl being less than 17) not conduct or result. BW if you applied the rule of legality to this case, you could probably reach the same result as this court BW If you were to say that 2/3rds probably is sufficient, youre getting very close to recklessness, and I dont think that was the intent of the model penal code - BW Willful means knowingly - BW Conclusion: The court overturned the conviction. Notes and Questions 1. The court seems to equate high probability with substantial and unjustifiable risk. Furthermore, the court equates awareness with 100% certainty. According to the footnotes, the Model Penal Code treats wilful blindness as a form of knowledge in order to settle the question of whether it falls under the category of knowledge or recklessness. The Model Penal Code treats it as a matter of knowledge because when a finder of fact infers knowledge, the evidence they have is proof of notice of substantial probability of [a facts] existence. Wilful blindness to existing facts, the drafters argue, can only be proven the same way. I think I would like to have more evidence to find out if Nations was willfully blind, but the last paragraph of the decision strongly suggests that Nations was deliberately avoiding the age issue. Under Model Penal Code 2.02(7), if Nations knew there was a high probability that the dancer was underage, she would be found to have knowledge of this fact and would be guilty. It looks like the second definition of wilful gives a crime a tripartite specific intent. 4. Problems in Statutory Interpretation

2.

3.

United States v. Morris United States Court of Appeals, Second Circuit, 1991. 928 F.2d 504. Dressler, pp. 149-153 Facts: Morris wrote a worm that he meant to be harmless and released it on the Internet.

29 It ended up causing damage that Morris did not foresee, including damage to federal computers. Morris was found guilty of intentionally accessing and causing loss to federal computers. Morris appealed on the basis that he didnt intend to damage the computers and that the statute should be read to require intent to damage as well as intent to access. Issue: Does the statute require the prosecution to prove that the defendant intentionally caused damage to federal computers, or only that the defendant intentionally accessed federal computers and in doing so caused damage (in this case unintentionally)? Rule: One may be punished for damaging federal computers unintentionally if the damage resulted from intentional access to the computers. Analysis: By way of a review of legislative history, the statute is interpreted to only require intent to access and not intent to damage. In particular, the court cites a change that was made which added the intent requirement in order to prevent convicting people of accidentally accessing someone elses computer. Conclusion: The conviction was upheld. Notes and Questions Morris would have been found not guilty under the Model Penal Code because he did not perform all the elements of the crime knowingly. He only accessed the computers knowingly. He did not cause damage knowingly. 2.02(4) says that in the absence of clear language to the contrary, all the required elements of the offense must be accompanied by, in this case, knowledge in order to find guilt. 2. In this case, it would seem that subsection (2) would apply because Gottesman is accused of distribution of a visual depiction whose production involves the use of a minor engaging in sexually explicit conduct. The question is: what must be done knowingly, and what attendance circumstances must be known in order for a person to be guilty of the offense? It seems that the term knowledge applies to the act of distribution. You could come up with some hypotheticals, however, that would seem to demonstrate that the statute is ridiculous unless knowledge applies to the character of the depictions. The distributor might knowingly distribute what he thinks is a picture of the Grand Canyon, but it turns out that when the picture is treated with certain chemicals it reveals a depiction forbidden by statute. It seems, therefore, that knowingly must be taken to apply to the nature of the visual depiction involved. The latter is what the Supreme Court decided. You could also argue, however, that the statute writers were going for something closer to strict liability. 3. Based on Model Penal Code 2.02, knowledge would be required for each material element of the offense, unless the purpose is plainly to the contrary. I think 1.

30 the Model Penal Code would generally weigh strongly toward giving the jury the instruction the defendant requested. D. Mistake and Mens Rea 1. Mistake of Fact Strict Liability classic example of strict liability is statutory rape. Strict liability are crimes by definition, do not contain the mens rea requirement. Therefore, there is no I didnt know defense. BW Mens Rea and Mistake People v. Navarro Appellate Department, Los Angeles County Superior Court, 1979. 99 Cal.App.3d Supp. 1, 160 Cal.Rptr. 692. Dressler, pp. 172-175 Facts Navarro took some wooden beams. At trial, he requested jury instructions which would have excused his behavior based on his belief that either the property he stole had been discarded or that he had permission to take it, even if such a belief was not reasonable. The court gave instructions that suggested such belief was only a defense if the jury finds it to be reasonable. Issue Should the defendant be acquitted if he had a belief in good faith, though it was not necessarily reasonable, that the beams had been abandoned or that he had the permission of the owner to take the property? Rule A good faith mistake is a defense in a specific intent when it negates a required mens rea of the crime. Analysis The court says that the trial court erred in instructing the jury that only reasonable belief could negate specific intent. Specific intent is negated by mere good faith mistake, and reasonableness is not needed. Conclusion The court overturned the conviction. BW*****-Common Law Rule w/ respect to mistake of fact Ask if the offense is a general intent or specific intent or strict liability crime. If it is a specific offense, ask does the mistake of fact negate the specific intent element of the offense. If it does, def. entitled to acquittal b/c mens rea will not be established. If it doesnt negate the specific intent, then you treat the offense as if it was a general intent crime. Then, with general intent crimes, you do a culpability analysis (did the Defendant act with moral blameworthiness) The way you figure that out is ask if the defendants mistake was reasonable or unreasonable. If mistake was reasonable, morally innocent and entitled to defense. If unreasonable, mistake isnt it a defense.

31 MPC does away with distinction between specific and general intent crimes. It is just an elemental version of mens rea. Ignorance or mistake of fact if it negates the mens rea required of the offense Battery General intent (i.e. if a woman commits a battery against of cop b/c of a reasonable mistake that she thought shed be mugged, she would be entitled to a defense) Moral wrong doctrine (can only apply this to mistake of fact) (underpinning for statutory rape) controversial and not used that much - if you intentionally commit a morally blameworthy act (i.e. taking a young girl away from her parents), you assume the risk of your mistake of fact. To apply the doctrine, court looks at defendants conduct through accused eyes. Legal Wrong Doctrine hypo kid with his dad takes a figurine from another guys house he believes to be 5 dollars, turns out it was worth 1500, then he would be charged with the stealing of the 1500 item. **Exam question last year** Same as MWD, but replace immoral with illegal. MPC Does not have a moral wrong doctrine BUT it is has a legal wrong doctrine, and it gives you the lesser offense. Notes and Questions 1. If he was acting in a morally culpable manner that only means that he had intent in the culpability sense. This court judges his intent in the elemental and specific sense. He might have been fully intending to go and smack old ladies around with wooden beams that he mistakenly thought were abandoned. In that case, hes morally culpable, but he lacks the necessary specific intent. Perkins says that mistakes of fact are not defenses to general intent crimes unless they are reasonable, while mistakes of fact are defenses to specific intent crimes even if they are unreasonable. With general intent crimes, you must merely be morally culpable, while with specific intent crimes, you must satisfy particular requirements. LaFave and Scott dont seem to mention reasonableness, but their statement is in harmony with the second part of Perkins statement. Model Penal Code 2.04 would allow a defense as to mistake of fact in so far as it would show that the defendant didnt intend to steal the beams. The evidence in this case tends to show that R made a mistake, and such a mistake only negates a finding of recklessness. R consciously acted to unload the gun, at which point we can infer that he was no longer conscious of a substantial risk, but rather believed that he had consciously eliminated that risk. Since the offense requires the defendant to be reckless in his act, I would vote to acquit based on the law. That which is legal is codified. It is available for everyone to see and study. Everyone is, or should be, on fair notice of what is legal and what is illegal. That which is moral is not uniformly codified. There is, at minimum, disagreement as to what is immoral, at least on the razors edge between acceptable and unacceptable behavior. Furthermore, that which would not be a crime under the set of facts the defendant believes to be true is, in fact, a crime

2.

3. 4.

5.

32 under a different set of facts that actually is true. Either both acts should be crimes or neither act should be a crime. The problem with this doctrine is the ever-growing range of the criminal law and continually expanding penal codes. Virtually anything can be found to be illegal, and so this doctrine would basically create a back-door to punishing acts without mens rea. If the criminal law were more limited, it would be reasonable for someone who knowingly breaks the law to take the risk of breaking an even more serious law by mistake and suffering the consequences. By Model Penal Code 2.04(2), the defendant would be guilty of fornication though not guilty of statutory rape. This subsection mandates that mistake with regard to one crime doesnt get you off of other crimes or degrees of crimes if you werent mistaken about them.

6.

7.

People v. Marrero Court of Appeals of New York, 1987. 69 N.Y.2d 382, 515 N.Y.S.2d 212, 507 N.E.2d 1068. Dressler, pp. 177-184 Facts The defendant was a prison guard in Connecticut and was arrested in New York for possession of an unlicensed firearm. The defendant claimed that he thought he was allowed to carry the gun because he was a peace officer by the definition contained in New York statutes. The trial judge dismissed the indictment, but an appellate court reversed the dismissal and thus barred the defendant from arguing he was exempt from criminal liability under the statute. Defendant argued that he reasonably relied on the statute. The repercussions of that argument would mean that any mistaken interpretation of the law would be allowed. Issue Should the defendant have been convicted even though he was mistaken in regard to the law? Rule Mistake in regard to law may negate intent but it is not a defense to a strict liability crime. Analysis The court interprets the New York Penal Code to include the Model Penal Code treatment of ignorance or mistake. Overall, the court construes the mistake of law defense narrowly on utilitarian grounds and cautioning against the slippery-slope policy implications of allowing a broader version of the defense. In a dissenting opinion, Hancock employs retributivist arguments, along with a smattering of specific deterrence language, to argue against the majoritys narrow construction of mistake of law.

33 Hancocks main point is that it is wrong to punish someone who is not blameworthy. Hancock alleges that punishing people despite good faith mistake is equivalent to punishing a law-abiding person.Hancock says that the maxim Ignorance is no excuse comes from Medieval times when people were commonly found guilty of crimes without intent. The judge says that over time, retributivism has become more accepted and utilitarianism less so, such that crimes by and large now require a guilty mind. Hancock claims, however, that the maxim has hung around as mere dogma. Hancock raises the question of whether the interpretation of the majority went against the Rule of Lenity. Hancock also claims that the legislature clearly intended the opposite result that the majority claims. Conclusion: The verdict was upheld. *BW the mistake was about the law he was charged with. He was convicted at trial and appealed. And the general rule applies ignorance of the law is not a defense. There are two exceptions 1. Reasonable reliance One who relies on an official statement of law (i.e. trial court decision, attorney general formal opinion), later determined to be wrong. 2. Constitutional due process - Lambert was an omission and duty was imposed b/c of status SC said it didnt create a duty for Lambert to find out what the law was. Perhaps there is a duty to inquire (felons know they are subject to disabilities (not voting), so it might be highly reasonable to say that a felon who enters a house with a loaded weapon has duty to know. MPC 2.02(9) General Rule: Ignorance of the law is no excuse *MPC 2.04 Exception to General Rule of Mistake of Law: Ignorance or mistake of law is not a defense unless the def. reasonably relies on an official statement (like a trial case) that is later deemed erroneous. (Cheek rule about mistake of collateral law shown through 2.04(1a)) Notes and Questions 1. 5. Kahan makes a yeah, but argument about the utility of learning the law depending upon whether or not ignorance is an excuse. I guess Weiss thought maybe reasonably that he was doing what he was doing with authority of law, and thus one of the elements is cast into doubt. It also sounds like he might have been under duress, whereas Marrero had plenty of time to gather information and get different opinions about the legality of his conduct.

Cheek v. United States Supreme Court of the United States, 1991.

34 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617. Facts Cheeks didnt pay his taxes. He was indicted for failing to file and tax evasion. In his defense, he argued that he sincerely believed he didnt have to pay his taxes and thus he acted without the mens rea required for the crimes. He is mistaken about whether the tax code defines wages that are income, not filing the tax return itself. (BW This is distinguished as a collateral different law mistake. Cheeks was found guilty and he appealed to the Seventh Circuit, which upheld his conviction, and subsequently to the United States Supreme Court. Issues Does an honest but unreasonable belief negate willfulness? Rule A claimed good-faith belief need not be reasonable in order to be considered as a defense. Analysis The Court cites United States v. Murdock and later cases to establish that willfully in the tax code should be taken to mean voluntary, intentional violation of a known legal duty. Specific intent, b/c you have to know of the duty BW. The Court says that it is impossible to be aware that the law imposes a duty if at the same time you believe such a duty does not exist. It is argued that it is not required that such a belief be reasonable. Blackmun dissents, saying that Cheeks defense is barred by the fact that the Internal Revenue Code has been around so long and that he seeks to be mentally competent. Conclusion: The verdict was vacated and remanded. BW****Whenver the mistake of law is about another law (i.e. Marerro thought he could be a deputy), it can negate the specific intent of the crime you are charged with Mistake of fact in specific intent crimes, and when the mistake of law is about a different crime, it can negate the mens rea. Therefore, the defendant has a defense. Thats why cheek got reversed. B/c if he believed that wages were not income, then it negates the mens rea of his legal duty to file his returns. Like Navarro, who thought the wood was abandoned. BW**Mistake of law generally does not negate general intent crimes. Notes and Questions 1. Cheek is claiming ignorance of a very well-known law, while Marrero is claiming ignorance of a very obscure law.

35 CHAPTER 6: CAUSATION BW Causation between the actus reus and the mens rea (Link between the conduct and the result) Causation is a significant factor for result offenses (but issue usually comes up w/ respect to homicide) Velazquez v. State District Court of Appeal of Florida, 1990. 561 So.2d 347. Facts The defendant was in a drag race. After the race was seemingly finished, the victim turned around and raced back to the starting line. The defendant followed. The victim died when his car went through a guardrail. The defendant wasnt wearing his seat belt and had been drinking. Velazquez was prosecuted for vehicular homicide. Rule: Courts usually use the but for test of causation, which says that a defendants act was the cause-in-fact of a result if it wouldnt have happened if it werent for their action. Sometimes, courts substitute the but for test with the substantial factor test when two or more defendants did the same thing at the same time causing the intended result. Finally, some crimes have a proximate cause element that is wider than but for test. Basically, courts wont find defendants guilty if the result of their conduct was unforeseeable or when it just wouldnt be fair to find them guilty. Holding: Remanded with directions to dismiss Notes and Questions 1. If the police cant identify the driver that struck Elmer, it is inevitable that the four drivers will be treated the same, whether by being punished or by being acquitted. I dont think the value of pinning Elmers death on someone is so great that its worth assigning blame and punishment to the three drivers who did not cause it. All of them may be liable in a civil suit brought by Elmers decedents.

Oxendine v. State (Actual Cause) Facts Defendants girlfriend physically abused his child and that resulted in a serious abdominal injury to the child. Then the defendant came home from work and physically beat up the child. The child stomach got swollen and soon the child died in the hospital. The defendant was charged and convicted for manslaughter. Now the defendant appeals and argues that the childs death was the result of his girlfriends actions and his actions did not cause the death of the child. *BW- Question is But for the Defendants action, would the child have died when he did (when the theory is acceleration)

36 Issue Was there the needed causation between the actions of the defendant and the death of the child that will make him guilty of manslaughter? Holding No Rationale The state failed to prove beyond a reasonable doubt that the defendants beating worsened the injury of the child that was incurred by the girlfriend. The medical experts failed to rule whether the defendant accelerated the victims death. The states whole case was based on the view that the defendant caused (accelerated) the death of the victim. But such they failed to prove. Therefore the defendant is not guilty of manslaughter but of assault in the second degree. BW Evidence came out after the motion for directed verdict which favored the conviction of the boyfriend, but the state didnt have the evidence of acceleration until after the motion, so the evidence was not permitted. Therefore, NO BUT-FOR CAUSATION SHOWN. In Oxendine, since they acted separately, you MUST do a causation analysis separately. If they worked under a conspiracy, manslaughter would have been for both. Notes and Questions 3. Who is the actual (but for) cause of death? A. X is an actual cause of death, because V would not have died when he did but for the actions of X. D is an actual cause of death because V would have died five minutes later but for the actions of D. B. X is still an actual cause. V would not have died but for being stabbed by X. D is also but for cause. C. X is an actual case of Vs death, but D is no longer an actual cause because D did not accelerate Vs death. D. The answer to the sine qua non question is no for both actors, therefore, both actors are actual causes of Vs death. E. Here we add the words as it did to the sine qua non question and find that both actors are actual causes of Vs death by multiple shootings. Dressler, pp. 200-209: Proximate Cause (Legal Cause) Introductory Comment The but for test is too imprecise, so we use the doctrine of proximate causation. If a person is a proximate cause of a result, then they are an actual cause of the result. All actual causes are not always proximate causes. The issue of proximate cause comes up when there is an intervening force between an act and social harm. This force can be:

37 1. 2. 3. An Act of God A third-party act which accelerates or aggravates harm caused by Def. An act or omission of the victim that assists in bringing about the outcome

There is no foolproof test for proximate causation, but there are factors you may consider to determine criminal liabilty. Dressler suggests that proximate cause analysis is overly conservative. Kibbe v. Henderson United States Court of Appeals, Second Circuit, 1976. 534 F.2d 493. Facts The defendant and another man robbed the victim and left him out on the highway where he was later struck by a car and killed. The defendant was found guilty of murder and appealed on the basis of habeus corpus (hybrid of crim/civ). Claims that the court did not allow the jury to consider whether he caused the death of the victim. Jury did not have instructions in regards to the legal effect of intervening and superceding cause. Issue Did the trial court err in failing to instruct the jury with respect to the issue of causation? Rule By statute, the state must prove beyond a reasonable doubt that the defendant caused the victims death. Analysis The definition of causation is complex, and the court finds it was essential that the jury be provided with such a definition. Conclusion The court found that the trial judge had given the jury incomplete instructions and thus had violated the defendants right to due process. Controlling question is whether the ultimate result was foreseeable to the original actor and whether victim failed to do something that would easily extricate him from danger. Notes and Questions BW Seems that when an intervening cause is unforeseeable, it seems like you should show it was highly abnormal. (i.e. airplane striking Kibbe on the road) BW- Coincedental intervening cause relieves original actor of liability, unless the situation is foreseeable --- this is why Kibbe is responsible. MPC 2.03 Causation defined as but-for (2.03(1))and ties it to culpability (2.03(2)) 1. 2. So this was all for naught. An airplane making an emergency landing is far less foreseeable than a speeding motorist. I think getting hit by an airplane is a far more independent cause of death then getting hit by a car when youre left on a road. It would be different if you were dumped out of the robbers car on a landing strip. The LaFave and Scott excerpt would have been way too complicated for the

3.

38 jury. I think a good jury instruction would focus on the contrast between the words coincidence and response. For example: In order for you to convict the defendant of murder, you must find that it has been proved beyond a reasonable doubt that the victim getting hit by a truck was a response to the defendants conduct rather than merely a coincidence. I think Stafford must be seen to be contributorily negligent, so if his family wants to sue for wrongful death, the defendant could use this as a defense. A. Here, I think Xs act of jumping into the water was caused by Ds shooting, and thus D is the proximate cause for Vs death. B. Here, D is not the proximate cause of V2s death because the result was mere coincidence rather than a response to Ds actions. C. Xs shooting at V was a response to Ds shooting at V, and thus D is the proximate cause of the death of V. It doesnt seem like this should relieve the defendants of their liability because the nature of their actions has not changed and the ultimate result is not changed. It doesnt seem like they should get off just because they were lucky enough that Stafford had a malevolent brother who just happened to come along to not help Stafford. Using the analysis in Kibbe, I believe that M was the proximate cause because Ys giving the poison to V was a response to Ms buying the poison and leaving it around the house. Under Kibbe, I believe P would have been found to be a proximate cause of Vs death because her traveling to her parents house was a response to Ps violent behavior. The doctrine of contributory negligence would hold that Vs choice to fall asleep outside in freezing weather may lessen the chance that P caused Vs death. On the other hand, since P apparently wished to kill V, the doctrine of intended consequences suggests that since P got what he wanted, he caused it to happen. The safety that is described here must be safety from the defendant rather than safety in general. I tend to side with the doctrine of intended consequences and thus I would disagree with the result in this case. I dont think it would make a difference whether or not P was searching for V, but I think it would matter whether Ps threat was genuine, although it would be difficult to know. The wife batterer aspect could go either way: you could say that it showed he was regularly violent towards his wife and thus it was more likely he truly intended to kill her, but on the other hand, you might argue that if he was going to kill her he would have done so already, and, though its despicable, that what he really likes is just to beat her up. Freedom of action is a key principle of retributivism. It is considered right to punish someone who had some bad intent and by their free choice caused some harm. If it was really someone elses free act that caused the harm, we wont hold the former person accountable. Under this doctrine, I believe Preslar could be decided differently if Vs act was not seen as free, but

4. 5.

6.

7.

8.

9.

39 rather compelled by Ps actions. 10. The Model Penal Code seems to remove the idea of proximate cause, and only uses but for plus culpability. (MPC Proxmiate Cause - Paragraphs 2 and 3 of 2.03b) Prox cause is a tool for holding people responsible. It says it doesnt matter if you intended to cause harm to a different person, or intended to cause more harm (but not less) than actually occurred. It also doesnt matter if your intended result happened differently than you intended it to, so long as the actual result wasnt a coincidence or an accident. State v. Rose

Facts: D struck V who was later found wedged beneath the vehicle. D was found guilty of manslaughter. There is no proof that D was driving the car negligently, so if V died on impact, there would be no mens rea. Issues: Was the victim dead upon impact? Rule: The victim has to be dead immediately after impact for the D to be found guilty. Application: The only medical witness stated death could have resulted immediately upon impact. Lacking any reasonable medical certainty as to the time of death. Conclusion/Holding: Acquittal, but still guilty for leaving the scene of an accident. Notes BW Elements of a crime Mens rea, actus reus, causation and social harm In this case: Mens rea (negligence) needs to concur with actus reus.
MURDER Homicide a neutral term killing of a person by another, can be justified (execution in prison) Murder Criminal Homicide People v. Eulo p.1984 NY Facts: The accused shot the victim in head. At the hospital he was placed on a respirator and later declared brain dead. Issues: Did the trial judge adequately instruct the jury for what constitutes death and what time criminal liability for a homicide would attach. Application: To construe our homicide statute to provide for criminal responsibility for homicide when a defendants conduct causes injury leading to the victims total loss of brain functions, is entirely consistent with the legislatures concept of death. Conclusion/Holding: There was sufficient evidence for a rational

40 juror to have concluded beyond a reasonable doubt that each defendants conduct caused the victims death and that the medical processes were not superseding causes of death. Notes POLICY Questions - MPC 1.02(3) BW In face of ambiguity, court can interpret words (like death) in statute by fair import of the terms to further purposes of MPC. Keeler was different b/c it dealt with if a fetus constituted a human being.

B. Intentional Killings 1. Degrees of Murder: The deliberation-premeditation formula

Hypo Man stabs someone 51 times and dies. State v. Guthrie FACTS: Defendant suffered from severe psychiatric problems. Among his psychological maladies was an obsession with his nose. The victim was his co-worker. The two worked as dishwashers. The victim was teasing and joking with the defendant and snapped a towel at him several times. The victim finally snapped a towel, which flipped the defendant on the nose. The defendant took a knife from his pocket and stabbed the victim in the neck. Was found guilty of 1st degree murder. Issue Questions trial courts instructions of first degree murder were correct. Rule of Law and Holding There must be some length of time that lapses between the intent to kill and the actual murder. The time varies based on the situation. Reversed and Remanded. Notes BW Policy - Different murders are not the same so that is why there are degrees Wilful, Deliberate, Premeditation Legislature has come up with these distinctions to punish the worst type of murder. A person can premeditate about killing someone, but might not have the quality of deliberation. Unless you define these words individually, it is difficult to make a distinction between 1st and 2nd degree. Likes Morin doctrine on p. 251-2 for distinctions. Midgett v. State SC of Arkansas 1987 Facts: Defendant severely abused his son. In one such incident, the defendant was drunk and he hit his son in the stomach with his fists. These blows proved to be fatal. Procedure: At trial, the defendant was found guilty of 1st degree murder. Issue: Can the conviction of 1st degree murder stand in the given facts? Holding: No. But guilty of 2nd degree murder. Rationale: Even though the acts of the defendant were outrageous, they still lack premeditation or deliberation to support a 1st degree murder conviction. The defendant did not intend to kill his son and he only intended to further abuse him. Some states have

41 adopted statutes that make deaths resulting from child abuse and torture fall under first degree murder. But in the absence of such statute, it is the duty of the court to rule in favor of the defendant. Dissent: The defendant continuously starved, choked, and hit his child and a jury reasonably came to the conclusion that he intended for the child to die from such actions. But this court took the place of the jury in this case and came to the conclusion that the defendant did not intend to kill his child. The court clearly overstepped its boundaries. Notes Malice 4 instances when law will say malice exists 1. Murder, express malice, intent to kill, 2. Intend to cause serious bodily injury that results in death(implied malice), 3. Depraved heart murder reckless disregard for the value of human life(implied malice), 4. Felony murder(implied malice) State v. Forrest Supreme Court of North Carolina, 1987. Facts: Defendants father was seriously ill and the doctors had declared his ailments to be untreatable and terminal. The defendant went to the hospital and after observing the state his father was in, shot the father in the head with a revolver. Procedure: The jury convicted the defendant of first degree murder. Issue: Was there deliberation and premeditation present in the crime in order to establish elements of 1st degree murder? Holding: Yes Rationale: The elements of premeditation and deliberation must be determined from the circumstantial evidence. In the current case, the father did not provoke the defendant and the father laid on the bed helpless. The defendant used a five-shot single-action gun which had to be cocked each time before it fired. The defendant openly stated that he was putting his father out of his misery. From totality of the evidence, it can be seen that the defendant premeditated and deliberated the killing of his father. Therefore the trial court did not err when it submitted to the jury the issue of 1st degree murder. Comment: Compare this case with Midgett v. State . Who said law was fair! 2. Manslaughter: heat of passion Killings

Girouard v. State Court of Appeals of Maryland, 1991. 321 Md. 532, 583 A.2d 718. Facts The defendants wife verbally taunted him. He killed her. He was convicted of murder. He appeals on the basis that her provocation was sufficient to mitigate his offense to manslaughter. 2nd degree murder Issue Should the defendants offense be mitigated to manslaughter?

42 Rule Words can only constitute adequate provocation to mitigate if they are accompanied by the threat of bodily harm. Analysis Joyces taunting did not realistically threaten any bodily harm to the defendant; therefore, her provocation was not adequate to mitigate the defendants offense. The reason for this rule is that as a matter of social policy, we dont want domestic disputes to end in the killing of a spouse. Conclusion: The court upheld the verdict. BW Common Law Manslaughter 1)killing must be in the heat of passion, 2)adequate provocation, 3)suddenly no ability to cool, 4)causation At common law, adequate provocation has a few examples p. 262 If this was a jury trial, the judge would have ruled that he shouldnt get jury instruction b/c words are not enough under common law. Raises question*** What is heat of passion? Is it justification or an excuse defense? This standard for words of provocation only applies in non-model penal code jurisdiction. Notes and Comments 1. The rule from this case defines adequate provocation as calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason. Under the Christiancy instruction, I would vote for manslaughter. The difference between the two instructions, in my view, is that the Christiancy instruction does not require the provocation to be calculated. It also softens the language such that it is necessary only that the provocation might render someone liable to act irrationally. Presumably, in practice, words really do cause violent reactions. I think the rule is as it is because we think people should not react to words with violence. Therefore, we will punish people for doing so. Im not sure how you can justify informational words being more provocative than insults. Dressler tries to bait us with a case where lay jurors voted to acquit a man who beat his girlfriend because she berated him. The decision makes sense to me. I think sometimes words can hurt more than fists, and the law should reflect this. People shouldnt feel like their choice of verbally abusing someone is protected by the law. If we would have mitigated the seriousness of the guys offense if he killed people while being sodomized, it would seem that it would be inconsistent to not mitigate the offense when he kills later. Under Girouard, the question is whether the provocation is adequate. Here, if D may reasonably infer that X and V were having sex, and if V was technically still Ds wife, then technically D would have a defense to murder.

2.

3.

4.

5.

43 Dressler, pp. 245-248: Rethinking Heat of Passion: A Defense in Search of a Rationale Dressler basically says that the heat of passion argument is a partial justification thats hard to justify. Justification (indicates approval by society) and focuses on the act, while excuse (shows moral blameworthiness) and focuses on actor. On the other hand, you can argue that it is an excuse on one of three grounds: 1. 2. 3. When youre in the heat of passion, you cant think straight and thus cant form a true mens rea. The defendant is less blameworthy because his act is less voluntary. Offenses committed under the heat of passion do not reflect a persons true character, but rather general human frailty. Or whatever.

Notes and Questions Explaining heat of passion as a justification appeals to me more than explaining it as an excuse. It shows that society does not approve of the victims conduct that led to the defendants offense. 2. If heat of passion is an excuse, Aaron is entitled to a manslaughter jury instruction. If it is a justification, Aarons killing of Ruth is certainly not justified. Introductory Comment Who is the reasonable man? Is the reasonable man someone who is like the defendant in every respect except, potentially, he is reasonable and the defendant is not? Or is the reasonable man also sort of the average man with average physical and mental characteristics? Attorney General For Jersey v. Holley British Case 2005 Reason this in the book is b/c a lot of American courts have not considered how the subjective actions of the defendant factored in. Court sets out at test based on subjective and objective elements. Subjective Did killing happen in heat of passion Defendants mental abnormalities Subjective - (evaluate gravity of provocation [takes into account def. mental state] Objective - External standard of self-control[was provocation enough to make a reasonable man do what defendant did] and only subjective elements are age and sex Simplified 1) a)loss of self-control (adequate provocation) b)gravity c) was the provocation enough BW this case comes about b/c once you move away from actions and say words are provocation, the british legislature drastically changes adequate provocation standard. 1.

44 BW- thinks the trend is more towards subjective standard in US courts However, courts need to give juries very specific instructions for evidence in regards to each purpose in order to adhere to the subj/obj Model Penal Code i. EMED Standard is not heat of passion, it is extreme mental and emotional distress (words could qualify) People v. Casassa Court of Appeals of New York, 1980. 49 N.Y.2d 668, 427 N.Y.S.2d 769, 404 N.E.2d 1310. Facts The defendants girlfriend broke off their relationship. He stalked and later killed her. In a bench trial, the defendant argued the partial excuse of extreme emotional distress. The judge found him guilty of murder. The defendant appealed on the basis that he wasnt allowed the extreme emotional disturbance defense. Issue Did the defendant establish the extreme emotional disturbance defense? Rule The New York statute, adapted from the Model Penal Code, says that in order to use this defense, the defendant (1) must be found to have acted under extreme emotional disturbance (subjective determined from the viewpoint of a person in the defendants situation under the circumstances as the defendant believed them to be), and (2) there must have been a reasonable explanation or excuse for such extreme emotional disturbance (not for the homicide itself). (Objective) Whether the actors loss of control can evoke sympathy from an ordinary citizen. Analysis The court says that the statute was properly applied because the trial judge, as the finder of fact, made an effort to empathize and be understanding of the defendants situation. Conclusion The court upheld the trial courts verdict. BW Model Penal Code adopts extreme emotional disturbance standard instead of previous heat of passion common law standard. MPC is more broad and takes into account actors subjective standard as well. BW Seems pretty clear that if Casassa was a jury case, Casassa might have gotten the instruction under the language in the statute articulated in Note 2 of p. 285. Problem with subjectivization crimes are bad, but people should be found guilty based on their own culpability (human frailty) BW Difference between common law and MPC - Under MPC - Words can be adequate provocation BW Difference between MPC and common law manslaughter Under MPC, even if there is provocation, it need not be provoked by the victim BW Another difference no cooling off period under the MPC (i.e. Casassa, who was waiting for a bit before he acted) c.

45 Notes and Questions

1.

2.

3.

4. 5.

The defendant would have to demonstrate that he acted under extreme emotional disturbance and that the emotional disturbance was subjectively reasonable. I think he defendant would have to present evidence that in the milieu of the drug dealer, touching someones dinner plate is an incredibly provocative insult. It would be very hard to put the fact finder in a drug dealers shoes. It would be next to impossible to make a judge or jury sympathetic to the subjective state of mind of the defendant that would cause him to kill another drug dealer over some money and a plate. I suppose C can get the instruction if he makes the case for this excuse in court, but the jury can only consider the effects of Cs past experiences on his psyche rather than any political or moral beliefs. According to the Model Penal Code, that evidence should be permissible, because someone from a different culture will subjectively experience emotional disturbance differently. So the Model Penal Code makes this a broader area of defense with more leeway for the jury. If someone really has some kind of emotional response that may or may not cause them to commit a crime, why is it important to have a hard and fast rule and notice? Why cant we just go case-by-case?

Frank killed Marie and Emil. 1. 2. 3. 4. 5. The voluntary act was firing the gun three times. The social harm is the death of Emil and Marie. The mens rea is, arguably, recklessness. Frank is the but for cause of the deaths of Emil and Marie. Frank is also the proximate cause of the deaths of Emil and Marie. There isnt an intervening cause.

This act was not justified, so at common law, we at least have criminal homicide. Is there an excuse? Lets see how his case would play out according to Michigan law, noticing that Michigan law contains no definition of either murder or manslaughter: Could it be first degree murder? Did he lie in wait? If a prosecutor wanted first degree murder, this would be one option. The prosecutor could argue that the plain language of this clause is descriptive of just what Frank did: he peered through a hedge and watched his victims for some

46 period of time before killing them. The defense would argue that this isnt what the legislators meant by lying in wait. They would say that this should be interpreted as waiting somewhere for someone else to show up, rather than coming upon someone who is already there. The defense would also argue that this clause is conjoined with the willful, premeditated, and deliberate clauses in such a way that Franks conduct doesnt fall under lying in wait. Was the killing willful? Yes, if Frank had the specific intent to kill. The defense would argue that he didnt know what the heck he was doing. Was it deliberate? Not in the least. Was it premeditated? In Michigan, you could argue that this was a hot-blooded and definitely not premeditated killing. What would constitute manslaughter in Michigan? Do we have to resort to the common law definition? Then the question is whether Frank acted with malice aforethought. Did Frank have an intent to kill, which is to say, an awareness that the death of another would result from his actions? In other words, did he act purposely or knowingly? Did Frank intend to cause grievous bodily harm? Did Frank act with a depraved heart? That is to say, did Frank act recklessly? This sounds plausible. This would keep us at second degree murder. Was Frank trying to commit a felony? Not as far as we can tell. Could Frank use the partial excuse of heat of passion? The evidence in the story suggests that he didnt know consciously that he was seeing his wife have sex with another man. However, arguing the evidence in court, the defense could argue that Frank did see his wife having sex with another man which traditionally goes toward establishing the partial excuse of heat of passion. So my answer would be that Frank would get manslaughter. He acted with a depraved heart insofar as he shot indiscriminately at people, which would get him first degree murder. However, he did not act with premeditation. That would leave him at second degree murder. Finally, the heat of passion excuse would knock him down to manslaughter. In a Model Penal Code jurisdiction, manslaughter would be a somewhat clearer choice. Frank could either get manslaughter due to his recklessness or due to his seeming extreme emotional disturbance (if it is found to be reasonable).

47

Unintentional Killings Unjustified Risk Taking a. BW some risks are so unjustifiably they will be treated as murder, or sometimes they will be considered involuntary manslaughter Berry v. Superior Court Court of Appeal, Sixth District, 1989. 208 Cal.App.3d 783, 256 Cal.Rptr. 344 Facts Berry had a fighting pit bull chained to a fence near some marijuana plants. The dog killed a toddler. The defendant was charged with murder. He sought to have the charge dismissed on the basis that the evidence presented fell short of implied malice. Issue Is the evidence in the case sufficient to justify a murder charge against the defendant? In particular, does the evidence show that the defendant exhibited an extreme indifference to the value of human life? Rule The test of implied maliceis actual appreciation of a high degree of risk that is objectively present. In California, the defendant must be shown to have had a knowledge of the high degree of risk, or in other words, they must be shown to be reckless, in order to be charged with murder as opposed to manslaughter. Analysis Doesnt particularly say in text, but The court cites several facts which taken together it suggests are sufficient to show recklessness: The defendant kept a fighting dog and told others it was dangerous. 2. The defendant lived near kids. 3. The defendant kept the dog chained to a fence. Conclusion The court concludes that there is sufficient evidence that the defendant knew the dog could harm human beings. The court allows the murder case to go to trial. BW ***a person kills recklessly if he consciously disregards a substantial and unjustifiable risk to human life Under MPC, this is manslaughter - When the recklessness is extreme it is murder under depraved-heart murder It is extreme when the risk of death is great AND the justification for taking the risk was weak or nonexistent Standard of Recklessness equated with intentional killings in murder context extreme risk taking People v. Nieto-Benitez, 4 Cal.4th 91 (1992) Defines express and implied malice. Defines common law depraved heart murder (reckless conduct- known to actor) when 1.

C.

48 a person does an act , the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life Negligent conduct (defendant should have known) State v. Hernandez Missouri Court of Appeals, 1991. 815 S.W.2d 67. Facts The defendant drove drunk and got into an accident that killed someone. He was charged with involuntary manslaughter. At trial, stickers and pins with pro-drinking slogans were presented as evidence over his objection. He was convicted and he appealed on the basis that the pins and stickers should not have been admitted into evidence. Issue Was the evidence of the drinking slogans relevant to prove an element of the offense of involuntary manslaughter? Rule The evidence is admissible so long as it goes to show that the defendant was criminally negligent. Analysis The majority says that the slogans would prove that the defendant had knowledge of the risks of driving drunk. However, the court says that the prosecution did not have the burden of proving that the defendant knew the risk because they did not charge him with an offense requiring the mens rea of recklessness. The court instead finds that the evidence could only have been introduced as character testimony, which is only allowed when the defendant himself makes an issue of his reputation. The dissenting judge claims that at least some of this evidence should have been allowed because it shows that the defendant knew what the effects of alcohol were. Conclusion The majority rules that the evidence should not have been allowed. The court overturned his conviction. State v. Williams Court of Appeals of Washington, 1971. 4 Wash.App. 908, 484 P.2d 1167. Facts The parents of a child who died of an infection they failed to treat were charged with manslaughter based on their negligence. They were convicted and they appealed.

49 Issue: Under Washington law, do the facts prove the elements of manslaughter? Rule: In Washington, manslaughter is any homicide that is not murder but is neither justifiable nor excusable and is committed with simple (as opposed to gross) negligence. Furthermore, homicide is excusable if it is committed accidentally while doing any lawful act by lawful means, with ordinary caution. Analysis: The court finds that the defendants were put on notice that the baby was sick before it was too late to save the baby by taking him to a doctor. The court does not accept the excuse of the defendants that they thought if they took the baby to a doctor he would be taken away by the welfare department. Therefore, the court finds there was enough evidence to find that the parents committed simple negligence. Conclusion: The court upheld the manslaughter conviction. Notes and Questions They would be guilty of negligent homicide, because the Model Penal Code says that any homicide committed with the mens rea of negligence falls under this offense. 2. If were not going to punish character in general, then were rejecting using the threat of criminal punishment to change peoples moral makeup. If this is the rule were using, we should only punish acts, and we shouldnt bother giving people any incentives to change their character. People v. Fuller Court of Appeal, Fifth District, 1978. 86 Cal.App.3d 618, 150 Cal.Rptr. 515. Dressler, pp. 286-287 Facts: Some guys were stealing tires by breaking into cars and got spotted by the cops. They tried to get away in their car and got into an accident, killing a bystander. They were charged with felony murder based on the felony of burglary. The trial court struck down the murder count. Issue: Under California law, can the defendants be charged with first degree murder under the felony-murder rule? Rule: Under California law, all murder that is committed while committing another felony is considered first degree murder. 1.

50

Analysis: The court is very reluctant to apply the felony-murder rule here, but they do so [s]olely by force of precedent. It is rather simple for the court to find that this case falls under the felony-murder rule, but the court thinks this is the wrong result. The court believes that the defendants should not be held responsible for murder because their illegal activity, stealing tires, is not inherently dangerous to human life. Conclusion: The trial courts dismissal of the murder charge is reversed. Notes and Questions 1. 2. Presumably not, because then they would not have been committing burglary. The further this court stretches the plain language of the law, the more likely it is to get reversed. Judges hate getting reversed. But I think the best shot for the defendants at trial would be to argue that this wasnt murder in the first place based on 187 because there was no malice. The felonymurder statute in California is just that: a murder statute, not a felony-homicide statute. If the defendants could argue that they did not have an abandoned and malignant heart, and that thus this wasnt murder, then it cant be felony murder. ii. The inherently dangerous felony limitation People v. Howard SC of California 2005 Facts Man gets pulled over. Speeds away and begins to drive recklessly. Runs a few stop lights, speeds, drives with his headlights off. Ran a red light and collided w/ a car, killing the cars driver. The car D was driving turned out to be stolen, and he was charged w/ murder and evading a police officer in a willful or wanton disregard for safety of persons or property. Jury convicted on both counts. Def. appeals. Issue Is the crime of driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer an inherently dangerous felony for purposes of the second degree felony-murder rule? Rule Second degree felony murder rule is a judge made rule and only applies to felonies that are inherently dangerous in the abstract. (Malice does not need to be proven if this rule applies)

51 Holding Second degree murder rule does not apply. Reasoning Section b of the statute greatly expanded the meaning of willful or wanton disregard, so applying the statute in the abstract, he cant be guilty of 2nd degree felony murder. B/c some statutory points violations are not inherently dangerous. Dissent Thinks fleeing in pursuit of police officers is inherently dangerous, but thinks its the roll of the legislature to change it. Dissent Seems obvious that the defendant committed the reckless endangerment of human life forbidden by the statute. iii. The independent felony (or Merger) limitation People v. Robertson SC of Calif. 2004 Facts People were stealing Def.s hubcaps. He came out of his house, shot at them with intention of scaring them. One was shot in the foot and the other fatally in the back of the head. Issue Whether the defendant could be convicted of 2nd degree felony murder based upon predicate offense of discharging a firearm in a grossly negligent manner, or if it was inapplicable under the merger doctrine from people v. Ireland? Holding Merger did not bar instruction of 2nd degree felony-murder. Reasoning Merger doctrine does not apply when death results from defendants commission of a felony with an independent purpose. Collateral purpose rationale felony murder verdict based on def. commission of a felony with a collateral and independent felonious design Dissent Says that majority erred when they applied the Hansen test, b/c the defendant did not have a felonious purpose independent of the killing. Says if you intentionally killed someone, youd get the lesser offense of voluntary manslaughter. Says Defs intent to scare is neither independent nor felonious, because it is nothing more than the intent required for assault. iv. Killings in the perpetration or in furtherance of a felony State v. Sophophone

52 SC of Kansas 2001 Facts Accused was not the one who killed F2, victim one of the felons. Defendant and a co-felon were fleeing the scene of a burglary as the police arrived. Defendant was caught while his co-felony was shot and killed by a police officer. The killing occurred in the requisite timeframe Issue Applicability of felony-murder doctrine where the killing has been caused by the acts of a third party Two approaches to application of the felony murder doctrine: 1) Agency (majority): applies to homicides committed by the felon or an agent of the felon. Thus, the identity of the killer becomes the threshold requirement for finding liability under the felony-murder doctrine. 2) Proximate cause approach (TEXAS): liability attaches for any death proximately resulting from the unlawful activity even the death of a co-felon notwithstanding the killing was by one resisting the crime. Rationale: Held, use agency, therefore no guilty. Hypo: Billy bob decides to break his brother out of jail, and enlists a buddy. One of the deputies accidentally kills another deputy. Is Billy Bob guilty under Texas statute? He committed an act clearly dangerous to human life that caused the death of another. So it boils down to causation. Thus the but for question. So Billy Bob would be guilty. But what if his co-felon said he was so scared he couldnt pull the trigger. You can argue participation. The underlying felony is the jail break. But was there am act clearly dangerous to human life? Thus is appears that Texas has the proximate cause approach, not the agency approach. Dissent: the statute is not ambiguous. In felony murder, your not transposing intent, but rather its strict liability. Because no state of mind. Notes. 1. 2. 3. In most murder cases there is no necessity of the felony murder doctrine. Thats why the MPC dispenses with felony murder doctrine. So it creates a presumption that engaging in a felony is reckless disregard of human life.

53

54

RAPE
Dressler, pp. 353-357: U.S. Dept. of Justice, Bureau of Justice StatisticsSex Offenses and Offenders Only about a third of rapes are reported, and only about half of those result in an arrest. More or less all rape perpetrators are male, and 90% of victims are female. Rape happens predominantly at night, with acquaintances, near the victims home, with a single offender. Usually the victim tries to resist Notes and Questions 1. Here are two sides of a debate: are rape victims discriminated against? The answer seems to be: not in general, but acquaintance rape victims seem to be treated worse. Stranger rapes are far more likely to be reported, and thus more likely to be prosecuted. One reason is that people are far less willing to press charges against people they know. 2. A critic could argue that if you really want to find rape, and you ask the right questions, youll get rape, unless nobodys having sex at all, ever. 3. There is probably an aspect of a greater social stigma surrounding same-sex rape, as well as issues of sexual orientation. Roundtree v. United States District of Columbia Court of Appeals, 1990. The discussion here is about balancing the good of preventing and punishing rape versus the good of protecting criminal defendants from having their rights taken away or being wrongly convicted or both. In the past, the law has been really terrible to women, basically treating them as chattels.

Notes and Questions 1. Here is a conflicted female lawyer who wants to stop rape but is also a civil libertarian and doesnt want to compromise the rights of defendants. I think she should be given credit for not playing pure identity politics: that is, she might as well say I dont care about the defendants, because theyre men and Im a woman. I am in favor of anything that is good for women, especially if it is bad for men. 2. I think these two suggestions, that (1) acquaintance rape might be best handled through very private mediation and (2) there might be a better outcome for rape victims if they sue for a tort instead of filing a criminal charge. Among other reasons, the standard of proof is lower for a tort than for a crime.

55

Rusk v. State Court of Special Appeals of Maryland, 1979. Facts: Just what the facts are and which facts matter are important difficulties of this case. It kind of gives me a headache. The defendant and victim met at a bar. The victim agreed to give the defendant a ride home. While in the victims car, the defendant asked the victim to come into his apartment and she said no. The defendant took the victims keys out of the ignition and asked her again and she said yes. Issue: Is the evidence in the record of the case sufficient for a finder of fact to conclude that the act of intercourse in this case was accompanied by force or threats of force and to thus find Rusk guilty beyond a reasonable doubt of second degree rape? Rule: Under the Maryland statute at the time, the offense of second degree rape is defined as vaginal intercourse accomplished by force or threat of force against the will and without the consent of the other person. Analysis: This is a common law case. We want to believe that society is just and innocent people are not victim of crimes. Therefore the victim must have done something that lead to the crime. She might not have consented, but there was no force here. A threat of force by Mr. Rusk that would have caused a reasonable person to fear for their safety, is not apparent. It is ok for a female to have an objective apprehension of serious harm, but there also has to be some kind of act by the defendant that places her in reasonable apprehension of her safety. Conclusion: The court overturns the rape conviction. Wilner dissents and it is very powerful.

State v. Rusk Court of Appeals of Maryland, 1981. Issue: Was the Court of Special Appeals correct in reversing Rusks conviction? In particular, was the reasonableness of the victims apprehension of fear a question of fact or a question of law? Conclusion: The Court of Appeals overrules the Court of Special Appeals and reinstates the conviction. Cole dissents.

56 Notes and Questions 1. Estrich faults the judges for demanding that women act like men. Im not too sure. What if we imagine that all of the operative facts of the case are the same except it takes place between two men rather than a man and a woman? If a man behaved the same way as the victim in this case, would the court have ruled differently, notwithstanding possible (maybe likely) prejudice based on sexual orientation? If Estrichs logic holds, a man in such a situation would be expected to resist rape by force while a woman would not. 2. It seems like some of these elements are inherent in some of the others. I imagine the type of force contemplated was heavy physical force of holding the other person down or beating them into submission rather than the type of force used in this case. I think a skilled prosecutor could argue that the cited statute includes the threat of economic harm as a possible element, but there may be case law that says otherwise. I have to wonder, though, if society wants to make forced sex by threat of economic harm exactly the same grade of offense as forced sex by threat of physical harm. Theyre both serious, but I think there is a different in seriousness. 3. The resistance requirement seems to come from case law in Maryland rather than from the statute. The court seems to interpret the first element of the offense in a quasiNewtonian way, that is, there is no force unless there is resistance. I think there shouldnt be a resistance requirement in the offense, but I certainly think resistance can have a strong evidentiary function when it occurs. It should not be a necessary condition to prove rape, though. The Code approach is better than the traditional approach, but probably still lacking. 4. No one would consent to robbery. But some rapes, arguably, would be perfectly legal sex but for the internal mental state of the victim. Therefore, there is a higher risk of false reporting than the other crimes listed. I think this is a reason to treat rape differently, although we may want to abandon it as a matter of policy. 5. The prosecutor would point to (1) the difference in sizeand presumably strength between the defendant and victim, (2) the fact that the defendant said I dont want to hurt you, (3) the defendant touched the victims shoulder, and (4) the defendant carried the victim to the wooded area. The defense would counter by saying that (1) the difference in size didnt come into play because there wasnt a physical fight involved, (2) the phrase I dont want to hurt you is ambiguous, and (3) the victim was on her bicycle and could have tried to escape on it.

State v. Alston Supreme Court of North Carolina, 1984.

57 Facts: The defendant and victim were in a relationship but had more or less broken up. After a lot of rigmarole including some threats, the defendant and victim had sex at the defendants friends house. Afterwards, the victim made a complaint to the police. There is also evidence that their relationship at least partially resumed later. The defendant was convicted of second degree rape. He appealed on the basis that there was not sufficient evidence to send the case to a jury. He argues that there was insufficient evidence to establish the elements of force and of the act being against the victims will that are necessary to establish the prima facie case for rape. Issue: Was sufficient evidence presented at trial of the element of force? Rule: If an act of sexual intercourse is by both force and against the victims will, it constitutes rape even if the victim gave consent to the defendant for previous acts of sexual intercourse. Analysis: The court finds there is sufficient evidence that the sex was against the victims will, but it finds insufficient evidence that the sex was forced. The court finds that there were acts of force and threats of force, but the court considers them unrelated to the act of sexual intercourse. The court seems to suggest that it is necessary for the victim to resist the act of sexual intercourse in order for it to be rape. Conclusion: I think the court overturned the second degree rape conviction. Notes and Questions 1. I think the judgment of whether an inference of the purpose of the threat can be formed should have been left up to the jury. Then again, because of the higher standard of proof in criminal cases, it may be something that shouldnt reach the jury without a certain threshold of evidence. As to the second point, we generally do not punish people for their character, so we certainly shouldnt punish them for their physical characteristics. 2. Here goes Estrich again. She is definitely a difference feminist as opposed to an equality feminist. She says that women shouldnt be held to a male standard. On the other hand, Berger seems to be more of an equality feminist, and her interest is in showing that men and women are equally capable of defending themselves. 3. If youre incapable of responding to some action, any action is forcible.

4. Coughlin makes some interesting points. She posits that when you look at history, rape was originally a defense to fornication/adultery. Having sex against ones will in effect took away the mens rea of adultery. It seems to me that it is a step forward that we do not punish men and women for having sex outside of marriage.

58 5. Heres a note about blaming the victim. I think the essential point is that just because someone wants to have sex does not mean they want to be raped, and these two things are very different not only emotionally but physiologically. I do think there is an element of imprudence on the part of some victims, but that neither mitigates the fault of the perpetrator nor shifts substantive blame to the victim. However, from an economic standpoint, sometimes the victim is the cheapest cost avoider. If, for better or worse, women who dont walk alone at night or who are conservatively dressed are less likely to be raped, and rape is bad, then it would seem to lead to the conclusion that we want to encourage women to dress conservatively and not walk alone at night. That doesnt mean we think women shouldnt have the right to dress how they want and go where they want when they want with who they want, but it just reflects the reality of the situation and makes the best of it while we work through other means to change it.

Commonwealth v. Berkowitz Superior Court of Pennsylvania, 1992. Facts: The defendant was convicted of rape and indecent assault. Issue: Under the Pennsylvania statute at the time, does saying no constitute force on the part of the defendant? Rule: Under the rule of Rhodes, the judgment of whether forcible compulsion or the threat of forcible compulsion occurred is to be judged on the totality of the circumstances.

Garnett v. State Defendant: Garnett; the defendant had consensual sex with a 13 year old girl. There was sufficient evidence that showed that the defendant honestly believed that the girl was 16. The girl became pregnant and the defendant was charged under a Maryland statue which made it a felony to have sexual intercourse with a girl under the age of 14 if the man is 4 years older than the girl. The defendant was convicted and sentenced to 5 years of probation. Issue: Did the state need to prove that the defendant had knowledge of the actual age of the victim in order to convict him under the statue? Holding: No Legal Reasoning: The court ruled that the legislature intended the statue to be a strict liability statue, even though it does not state that explicitly in the wording of the statue. The court stated that the statue did not require mens rea on the part of the defendant. The court further ruled that the Maryland legislature had the complete discretion in making the defendant's offense a strict liability crime. So the conviction was affirmed.

59 State of New Jersey in the Interest of M.T.S. Supreme Court of New Jersey, 1992. Facts: Two teenagers had intercourse. Their testimony differed on many facts. It generally appeared, however, that the intercourse was non-consensual and was accomplished without the use of force as traditionally defined. The defendant was tried and found delinquent for second-degree sexual assault, but the delinquency was reversed on appeal. The State appealed to the Supreme Court of New Jersey. Issue: Is any force required besides the force of sexual intercourse itself to find the defendant delinquent for second-degree sexual assault? Rule: NEW RULE! [A]ny act of sexual penetration engaged inwithout the affirmative and freely-given permission of the victimconstitutes the offense of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. Analysis: Having announced the new rule as an interpretation of New Jersey law in light of its legislative history, the court applies the law to the facts. The court considers the totality of the evidence in answering the question: Did the alleged victim freely give affirmative permission to this specific act of sexual penetration? The court focuses on the defendants conduct and rejects any judgment passed upon the victim except as it pertains to the actions of the defendant. If the evidence shows beyond a reasonable doubt that the defendant knew that the sexual penetration was accomplished without freely given affirmative permission, then the defendant should be found guilty. If the evidence shows beyond a reasonable doubt that the defendant believed that the sexual penetration was accomplished with freely given permission, then the factfinder must consider whether, given the totality of the evidence, that belief was reasonable. The trial court found that the victim did not consent to the sexual penetration. The court seems to find this sufficient to say that she did not freely give permission for the sexual penetration. The court refuses to interfere with the factfinder. Conclusion: The delinquency finding is reinstated. Notes and Questions 1. It would seem that Berkowitzs conduct would constitute rape under M.T.S. because it was non-consensual sex. On the other hand, M.T.S.s conduct would not seem to constitute rape under Berkowitz. Im strongly invited to prefer the M.T.S. approach as a matter of social policy. Im worried, though, that these are close cases and broadening the definition of rape will have a chilling effect on positive intimate sexual relationships. This is all getting dangerously close to saying that sex is inherently bad, or it is presumed bad, or that it is presumed that nobody wants it just like nobody wants to get robbed or beat up. 2.The court suggests that permission, unlike consent, can be non-verbal and can be

60 inferred from the totality of the evidence. The court recognizes that most noncriminal sex occurs without explicit verbal consent, and thus it would be bad policy to require such explicit consent as opposed to the somewhat broader freely given affirmative permission. Commonwealth v. Sherry Supreme Judicial Court of Massachusetts, 1982. Facts: The defendants and the victim were at a party. The defendants were charged with rape and kidnapping. They were convicted of rape. Issue: Should the jury have been instructed as to whether the defendants made a mistake of fact sufficient to excuse their offense? Rule: The defense of mistake of fact requires such a mistake to be reasonable and in good faith. Analysis: The court finds that the defendants requested jury instructions fail to mention the good faith and reasonableness requirements. Conclusion: The conviction was upheld. State v. Herndon Court of Appeals of Wisconsin, 1988. The Sixth Amendment gives defendants the right to basically grill opposing witnesses. Weve decided to limit this in rape cases with rape shield laws. You cant ask a rape complainant about their past sexual history. Basically, the idea is to prevent defendants from harassing complainants which would deter them from reporting rape. There are four main approaches to rape shield laws: The Michigan approach This is kind of a blanket approach where pretty much all testimony about sexual conduct or reputation is barred, with a few exceptions. This approach pretty much goes to the constitutional limit. Any evidence that may be accepted is closely scrutinized. The policy considerations behind the Michigan policy are: To prevent harassment of the victim by the defendant To eliminate evidence that is legally irrelevant To eliminate evidence that distracts the jury from the legal issues To encourage reporting by victims The Texas approach Texas and some other states will basically give judges as much discretion as they want. Judges are supposed to balance the value of the evidence against the possibility that it will prejudice the jury. The federal approach This approach has three key features:

1. 2. 3. 4.

61 1. 2. 3. A blanket prohibition, like the Michigan approach Exceptions for undeniably relevant evidence A catch-all provision to selectively admit relevant evidence on a case-by-case basis The California approach Evidence is separated into two categories: 1. Evidence offered to prove consent its generally inadmissible except evidence of prior consensual sexual activity between the victim and defendant 2. Evidence offered to attack credibility if its relevant, its in Rape shield laws strike a balance between defendants Sixth Amendment rights and victims rights.

62
Statutory Rape Garnett v. State (retarded 20 year old has sex w/13 year old girl) Statutory rape is a strict liability crime (no mens rea necessary) and therefore, mistake of fact is not allowed to come into play No defense for mistake of factThink about for Friday is - - - does it make sense to protect females or males for that matter from sexual activity in this fashion Should rape be a strict liability offense? He was arguing that he wanted to get away from strict liability mistake of fact essentiall? Based on the moral wrong doctrine From the standpoint of rape law (w/o consent) here we dont care about consent Problem of branding an 18 year old as a sex offender must register Other sanctions report for the rest of your life Some states have moved in the direction of mistake of fact Strict liability crimes go against many things weve discussed so far in this class: culpability, levels of blameworthiness MPC strict liability not there A. Categories of Defenses (1) Voluntary Act (2) Social Harm (3) Mens Rea (4) Actual & Proximate Causal Connection b/w (1) & (2) Elements of a Crime After these things are shown, may raise certain defenses Types: Failure of proof defense o is saying 1 of the above elements is missing o Mistake of fact (strict liability) no mens rea Incest requires that the actor knew that the victim is related to him in a certain way say he doesnt know, mens rea of the crime is knowledge, how can the prosecutor establish that? If he cant, jury should acquit or judge issue directed verdict o If prosecutor couldnt establish a voluntary connection b/w 1 & 2 Justification defense o Conduct that is otherwise criminal but is socially acceptable under the circumstance that it occurred, it a good thing to do Classic self-defense o What it does Negates the social harm element above o Focus on the act says he didnt do anything wrong Excuse

63
Usually all the elements above ARE MET Common - insanity o Negates the moral blameworthiness o And w/respect to excuse, generally the FOCUS IS ON THE ACTOR, not the act o It is a wrongful act but excuse the actor b/c the conditions suggest that the actor is not responsible for the deed o I did something wrong, but shouldnt be punished Offense Modifications o Someone paying ransom or extortion to someone o They could be seen as accomplice to the crimes, but they are also victims, courts dont criminalize the victim, by paying they didnt cause the social harm Non-exculpatory Public Policy Defenses o Statute of limitations doesnt say didnt do anything wrong, but for other policy reasons no prosecution o

C. Principles of Justification 2. Self-Defense

United States v. Peterson (dont take another step) Kids stealing windshield wipers guy went into house, got gun, kids leaving, provoked The issues: Instructions given to jury involved evidence whether or not Peterson was an aggressor, and (2) whether or not the was a duty to retreat Aggressor see top of pg. 497 When use deadly force (common law) non aggressor is justified to use deadly force if he or she reasonable believes that such force is necessary to prevent imminent use of unlawful deadly force by the other person What is deadly force force that is likely to cause death or serious bodily injury Three prongs Necessity Reasonable Belief Proportionality W/respect to justification defenses there are triggering conditions there has to be a set of circumstances that allows a to use the defense Those triggering conditions permit a proportional and necessary response Pg. 500 1(B) Is he an aggressor? No But language on 496 and 497 if a person has any fault (maybe) o Depends if adultery is illegal Not under MPC 1(A) MPC would require her to take a different route Seems to favor the bully Bullys life more important that persons right to walk down a particular street if they could walk down another one

64
When the social harm is someone dying, we think we can avoid that, and that is what we ought to do In Peterson Our guy was sort of in it, then left got the gun

People v. Goetz Court of Appeals of New York, 1986. Facts: Goetz shot four men on the subway. He claimed he did it in self-defense because he thought the men were going to rob him. He was charged with attempted murder and other charges, and he moved to dismiss the charges on the basis of the prosecutors instructions to the Grand Jury in regard to the justification defense. The trial court dismissed the charges, and the intermediate appellate court upheld the dismissal. Issue: Is the reasonable person standard for self-defense as justification an objective standard or a subjective standard? Rule: The reasonable person standard is an objective standard. Analysis: The court finds that the prosecutor accurately articulated the standard to the Grand Jury. Conclusion: The court reinstates all counts of the indictment. The Model Penal Code is subjective about the use of forceit says when the actor believes They are saying the prosecutor is right in the jury instruction.

State v. Wanrow Supreme Court of Washington, 1977. Facts: The defendant went over to Ms. Hoopers house with a gun to protect her against a child molester. The child molester came over, and she ended up shooting him. The defendant appealed the conviction. Issue: Were the jury instructions proper? Rule: The jury may stand in the shoes of the defendant in assessing whether his or her conduct was justified. Conclusion: The defendants conviction was reversed.

65 Model Penal Code 3.041Force in general; not necessarily deadly forcethe most significant point is that the MPC substitutes so that the focus is not on the timing of the threat, but so what kind of reaction the threat will induce The MPC definition of deadly force3.11(2) force which the actor uses with the purpose of causing or which he knows will create a substantial risk of death or serious bodily injury. 3.04 is subject to the requirements of 3.09 TheoryMoral Forfeiture You are focusing on the right of the defendant to defend his own interests. Moral Right DoctrineActor has the right to protect moral interest

State v. Norman Supreme Court of North Carolina, 1989.

Facts: Defendant was the victim of years of abuse by her husband. D and medical experts testified that defendant was certain that her husband will kill her. D shot and killed the husband while he was asleep. Procedure: Trial ct. refused to instruct the jury on self defense. Ct. of appeals reversed and ordered a new trial. Issue: Was the Court of Appeals correct in ruling that the jury should have been instructed on self defense under the given facts? Holding: No Rationale: According to the court, in order for there to be self defense, the defendant must face imminent danger of death of great bodily harm. Imminent is defined as: "immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law." In the current case, the husband was asleep. D went to her mother's house and got the gun and when the gun jammed, she fixed it and then shot the husband three time in the head. She could have used other avenues to seek help, but she chose to kill. D's belief that her husband will kill her is too indefinite and cannot be considered imminent. Therefore, the trial ct. was correct in refusing to instruct the jury on self-defense. BRAITHWAITE NOTES Look at the next to last paragraph of Goetzit tells you the factors to take into account for reasonable belief (this is the law) How much subjectification is allowed? Some states have allowed almost total

66 subjectification The idea of the reasonable racist should be rejected because it goes against the normative rule of the criminal law. Even if the persons fear has a factual basethey can show itthe major factor to that is that it may lead to some racial bias in juries. For imminent harm MPC language is immediately necessary Necessity ("Choice of Evils) General Principles

1. a.

Nelson v. State F: Guy gets truck off side of highway. Trespasses and takes a dump truck and front end loader to get his truck out, to no avail. Arrested for joyriding and reckless destruction of personal property. D claims necessity. Trial court and appellate court upheld conviction. I: Whether jury was properly instructed regarding defense of necessity? H: Yes, such a defense exists only when natural forces create a situation wherein it becomes necessary for a person to violate the law in order to avoid a greater evil to himself or his property. Necessity is a public policy doctrine. Rule: 3 elements to the defense of necessity: 1)act charged must have been done to prevent significant evil 2)there must have been no adequate alternative 3)harm caused must not have been disproportionate to the harm avoided.

b.

Civil Disobedience

United States v. Schoon Brief Fact Summary Defendants appeal their conviction for obstructing the activities of the IRS office in Tucson, Arizona and failing to comply with the order of a federal officer. The convictions stemmed from a protest staged by the defendants in order to bring attention to United States involvment in El Salvador. Rule of Law and Holding The court held that the necessity defense was not intended as justification for illegal acts taken in indirect political protest.

67

EXCUSE DEFENSES 1. Duress

United States v. Contento-Pachon United States Court of Appeals, Ninth Circuit, 1984. Facts: The defendant was forced to smuggle cocaine into the U.S. At trial, evidence of duress or necessity was suppressed, and he was convicted. He appealed, saying that he should have been allowed to present testimony in support of a duress or necessity defense. Issue: Was there sufficient evidence of duress to present a triable issue of fact? Rule: The elements of the duress defense are: (1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear that the threat will be carried out, and (3) no reasonable opportunity to escape the threatened harm. Analysis: The court focuses on the first and third elements of duress. The defendant presented evidence that showed that he believed he was being watched the whole time he was doing the smuggling. The court finds that there was enough evidence of this that a factfinder could reasonably conclude that the threat was immediate. The defendant also claims that he had no reasonable opportunity to escape because he thought the police were corrupt and fleeing would be too dangerous. The court also finds that there is enough evidence for the issue of whether escape was reasonable to the factfinder. On the other hand, the court upholds the decision of the trial court to exclude the defense of necessity. The court finds that necessity doesn't apply when the allegedly necessary action was precipitated by human action rather than some physical force of nature. DISSENT: The dissenting judge would not have allowed either defense, and accepts the district court's rationale for refusing duress. I think this is bogus, especially the part about going to the cops. The way the cops are in Colombia, there might as well be no cops at all. This should be allowed to come out at trial. Conclusion: The conviction was reversed. (Was a new trial ordered? I guess you can't.) People v. Kurr Michigan Court of Appeals Defendant was convicted, after a jury trial in the Circuit Court, Kalamazoo

68 County, Richard Ryan Lamb, J., of voluntary manslaughter. Defendant appealed. The Court of Appeals, Meter, P.J., held that: (1) defense of another extends to the protection of a fetus, viable or nonviable, from an assault against the mother, and (2) failure to give such instruction deprived defendant of her constitutional right to present a defense. Procedural History: Reversed and remanded. The killing of another person in self-defense is justifiable homicide if the defendant honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm. Failure to give defense of another instruction deprived defendant of her constitutional right to present a defense, in prosecution for voluntary manslaughter, though jury was instructed on self-defense; defendant alleged she was protecting her nonviable fetuses after her boyfriend had punched her twice in the stomach, and jury could have concluded the punches to the stomach did not warrant use of force to protect the defendant but did warrant use of force to protect the fetuses.

People v. Ceballos Supreme Court of California, 1974 Defendant was convicted in the Superior Court, Marin County, Samuel W. Gardiner, J., of assault with deadly weapon and he appealed. The Supreme Court, Burke, J., held that defendant was not justified in setting trap gun to prevent burglarizing of garage in which defendant sometimes slept, but in which he was not present at time the gun shot boy who was attempting to burglarize garage and that where defendant did not move in court in which he was arraigned to have information set aside on ground that he had been committed without probable cause, he was precluded from making the objection on appeal. Some tools were stolen so defendant mounted a pistol. Boy contends he was going repay a debt by stealing defendants property and selling it. People argue a trap gun is excessive force.

Commonwealth v Graves * Defendant drank a quart of wine and took LSD. Then he committed a robbery that lead to the owners death. He claims to have no recollection of the event. * Voluntary intoxication neither exonerates nor excuses criminal conduct. However, intoxication is relevant to the question of the capacity of the actor to have possessed the requisite intent of the crime charged. When it is a specific intent crime, evidence of intoxication becomes relevant if the degree of inebriation has reached that point where the mind was incapable of attaining the state of mind required. * Although intoxication never exonerates or provides an excuse, it may be relevant to establish that the crime charged never occurred. * Burglary and robbery are specific intent crimes, so evidence of his intoxication

69 should be allowed in b/c the defendant should be able to produce evidence to contest the mental state required by the statute. * Dissent: An individual who places himself in a position to have no control over his actions must be held to intend the consequences. The majority is just using a play on words there is no difference in admitting evidence to negate an element of the crime and admitting evidence to allow a defense. Notes 579-585 on intoxication: * Under English common law there was no difference; if you were intoxicated, you were still treated as if you were sober when you did the act * The current public trend is that the actor should be responsible. The counter is that alcohol is a disease and the actor cannot help it. * After Graves, the Pennsylvania legislature went back to the prior decision in Tarver: evidence of intoxication or a drugged condition may be offered by defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder; this is the only time intoxication is relevant If intoxication can negate specific intent, why cant it negate general intent? Did Graves have requisite mens rea at the time of the crime. BW** That is essentially what Montana is doing If you choose to get voluntarily intoxicated, you are going to be responsible for your actions. BW** The point is that the idea of intoxication can be used to negate the requisite mens rea for the crime is falling out of disfavor. 3. INSANITY United States v Freeman * Rehabilitation, deterrence and retribution are not satisfied when the truly irresponsible are punished. * A man who cannot reason cannot be subject to blame, and we dont punish without blame (Holloway) * An adjudication of guilt is more than a factual determination in our criminal justice system it is a moral judgment that the individual is blameworthy; our criminal law is designed to punish those who choose freely to do wrong the insane dont make choices (Lyons) State v. Johnson 597-601 1. MNaughten Test To be insane under this test the defendant must not have known the quality or nature of the act, and additionally the defendant must not know that it was wrong. The elements are both cognitive. An example is a person that has pyromania and cannot control his compulsion to set fires. The defendant would have no excuse under the MNaughten test because he knows what he is doing is wrong even though he cannot control his acts. MNaughten appears to require a complete impairment due to mental disease.

70 2. Irresistible impulse This test focuses on a defendants incapacity to control his acts due to the fact that he is insane. This test supplements the McNaughten test. This is a volitional test the defendant has lost his ability to choose his actions. This is rejected by most courts because it is hard to prove if there was or was not the power to choose to act. This could lead to the creation of a slippery slope where every defendant argues this defense. The purpose of the defense was that you cannot deter these individuals so there is no need to punish them. 3. Durham Test The Durham test allows a defendant to be acquitted by reason of insanity if they could show that the crime was the product of mental illness. This test allows the testimony of an expert to control the outcome of the case. One of the criticisms of the MNaughten test is that it limits expert testimony to matters only related to the defendants understanding of his acts. The Durham test opens that up. It takes out the right/wrong dichotomy it does not restrict expert testimony to this. It takes the view that the act is the product of a mental disease. Thus, you are allowed to look at expert testimony in a broader sense not just in figuring out if the defendant knew it was wrong/right. It does not even consider a volitional test. 4. MPC The MPC is broader than MNaughten. Instead of finding insanity when there is a total incapacity as to what is right or wrong the MPC substitutes the word substantial. This is therefore similar to MNaughten in that there is a focus on the cognitive element, but the MPC requires a substantial impairment rather than a complete impairment due to mental disease. It also has a modified irresistible impulse element Lacks substantial capacity to conform to the law. Therefore under the MPC a defendant is not responsible for their act if, at the time of the crime, they lacked substantial capacity to (1) appreciate the criminality/wrongfulness of their conduct or (2) to conform his conduct to the requirements of the law. * Model Penal Code: 4.01; recognizes that no test is workable that calls for complete impairment of ability to know or control * appreciate in the MPC is better than know in McNaughten test because a person is not held responsible for his actions unless understanding of his conduct involves a fuller, deeper knowledge than simple cognition, involving emotional as well as intellectual awareness; example: a child may know that he is doing something, but he may not appreciate the significance of his actions * PAGES 602-609 ARE NOTES DISCUSSING AND CRITIQUING THE INSANITY TESTS Ake Dah * Ake Dah heard voices telling him to kill his son, so he attempted the murder of his son * Blair considers the McNaughten test for the insanity defense: there is a defense of

71 insanity if by reason of unsoundness of mind at the time of the act charged as the crime, the accused did not know the nature and quality of his act or did not know that what he was doing was wrong. * Blair is torn because Ake Dah is mentally ill, but he also knew that what he was doing was unlawful. His illness led him to believe he should murder his son, but he always knew it was murder and that that was against the law. * Ake Dah was doomed to either go to prison or spend a lot of time locked up in a mental hospital * Blair suggests that Ake Dah knew his voices were the result of a mental problem, but said they came from a deity so that he wouldnt have to face the truth and lose respect from everyone so it was a self-protection and pride. So is he blameless? * Blair questions whether he was so sick that he ought not be held responsible for the crime * Should mentally ill killers be convicted of murder, and, if not, what are the criteria that should distinguish those who should be so convicted from those who should not? * Obviously Blair did not want Ake Dah imprisoned in a prison or mental hospital for the rest of his life, so he found a loophole that he would keep him under medical supervision for one year, then charge him with wounding his son, and give him credit for time served. Ake Dah would not have met the insanity defense, and Blair obviously did not think he deserved punishment, so he found a way around it. * Why do we have a rule that prohibits insane people from using insanity defense if they know what they are doing or that what they are doing is wrong? If they cant help themselves anyway, they arent morally blameworthy, and we dont punish when there is no blame. On the other hand, you must distinguish the mentally ill from assassins, because both find virtue in their acts criminal acts even though they both may know that what they are doing is wrong. So you have to either acquit both or convict both. Thats why we convict the mentally ill if they know that what they are doing is wrong to be consistent with the way we treat other criminals. * Ake Dah would not have met the requirements for an insanity defense under McNaughten, Durham or MPC tests. He may have met it under Durham test depending on what Veraswami had to say about whether defendants crime was the product of mental illness. Notes page 602-606 - Criticisms and contrasts of the different tests for insanity * Comparison of McNaughten and MPC * Note 4 criticizes the volitional component of irresistible impulse and MPC tests * Discussion of the Durham rule note 5 * The Durham test has been abandoned

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Note #7 607-608 mental disease or defect * All of the definitions of insanity require the actors cognitive or volitional impairment to be the result of mental disease or defect, yet few courts define this crucial term * McDonald defined it in note 5 top of 605 as including any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls. * Courts do not include sociopathy (antisocial personality disorder) or narcotics addiction in this definition * MPC specifically excludes sociopathy from insanity defense Notes on Insanity Page 618-620 Under McNaughten and MPC tests, wrong has three possible meanings: 1. Contrary to law 2. Contrary to public morality 3. Contrary to ones own conscience (subjective approach not guilty if he believes that he is morally justified in his conduct) Insanity BW Notes If a person wishes to give an insanity plea they must give advance notice There will be an medical expert from both sides Insanity applies at the time of the commission of the criminal act Typically in a criminal case you have verdicts, possible jury verdicts (not guilty), (not guilty by reason of insanity) or (guilty) Michigan and a couple other states have (guilty but mentally ill) Guilty by mentally ill means at the time of the trial the defendant was mentally ill. Who bares the burden of proof on insanity? The MPC says: If it doesnt have a volitional element; people who may not be able to control impulses BW: Why would a party put in evidence that is not self-serving Federal Testhave to prove by clear and convincing evidence that at the time of the offense by reason of ever mental defect, D is unable to appreciate nature of conduct and whether conduct was wrong. BW_ Retribuvists believe that because we do not push insane wrong doerswe do punish sane wrong doersInsanity serves as a tipping point between the mad and the bad.

Clark v. Arizona It dispense with whether the person appreciated or knew the quality of what they were doing

73 The question in Arizona became whether they knew they were doing right or wrong. It became a Due Process challenge. Abolished the first prong of McNaughten Insanity is an excuse defense it takes away moral blameworthiness If a defense takes away the mens rea of the crime is that an excuse defense One way that a diminished capacity is a failure or proof claim It means that the state could not satisfy all the elements of the crime. Diminshed capacity is a mental abnormality that doesnt rise to the level of mental abnormality. A "diminished capacity" plea differs in important ways from "not guilty by reason of insanity." "Reason of insanity" is an affirmative defense to crimes. That is, a successful plea of insanity will, in most states, result in a verdict of "not guilty" and commission of the defendant to a mental institution. "Diminished capacity," on the other hand, merely results in the defendant being convicted of a lesser offense. Diminished capacity is also used to reduce the degree of the crime A partial excuse It may not necessarily acquit the defendant entirely An example might be the difference between a burglary and a criminal trespass Essentially the model penal code Apparently the judge here (because this is a bench trial, the right of the jury trial was waived) the judge did not believe his insanity claim here He was not found guilty by reason of insanity I guess the judge did not believe the alien testimony

In Re: Devon T. Facts: Juvenile possessed heroin with intent to distribute (if committed by an adult). He had 20 bags of heroin in his pockets. Juvenile was 13 years, 10 months, 2 weeks and raised the infancy defense. Common Law children under 7 presumed to be without criminal capacity. 714, there is a rebuttable presumption of criminal incapacity. To Overcome burden of presumptive incapacity ---- Children are not crminlaly responsible unless they are capable of having criminal intent, an to have criminal intent, they need to know between right and wrong . (mainly concerned w/ cognitive element rather than volition Issue: Is there evidence that Devon knew what was right or wrong AND what he was doing was right or wrong? Analaysis and Holding Devon was at or near grade level in school. Surrounding circumstances were legally sufficient to overcome the presumption of incapacity due to infancy. MPC 4.10(1) In an adult court its called a conviction, in a juvenile court its called an adjudication.

74 7 to 14 presumption infant does still not know right from wrong, but the State is in position to re-but it. 625 S.2d 1187 READ FOR BW ********* Goes against the holding of Devon T. In many jurisdictions juveniles are being tried as adults because the crimes of juveniles are getting worse. Chapter 10 Inchoate Defenses Inchoate means unfinished, incomplete BW DEFININTION: Crimes that deal with conduct that is designed to culminate in the commission of a substantive offense, but has failed in the discreet case to do so, or has not yet achieved, because there is something that the actor or another still must to do. Do you want law enforcement to be reactive or proactive if proactive we want them to prevent crimes from happening. The important thing to rememberin regards to Terry v. Ohiois a procedural rule Probable cause becomes a big issue in thisfor what?for the statute the legislature has decided to criminalize! broad statutes give police more leeway and vice versa BW wants cops to be proactive (to a certain extent) it seems the penal law would like to prevent the commission of a crime. And of course, I guess it deters criminals, if they know attempts you can arrest people for, and another thing is the idea that in many cases one of the major things that the penal law focuses on culpabilityis the same, whether you accomplish the crime or you dont. Hypo X intends to kill Y. Shoots at Y and misses. Z does the same thing with S. S dies. Is the culpability the same? Do we want to say the guy that shot and missed gets away? BW: (angrily) I dont think so. I dont think so.

MPC attempt requires substantial step toward the completed offense So far, weve been looking at completed offenses. Now were going to look at incomplete or failed offenses. (conspiracy) Consider the range of conduct: 1. Someone thinks about committing a crime (we dont punish this). 2. Someone solicits a crime. 3. Someone conspires to commit a crime. 4. Someone attempts a crime. 5. Someone completes a crime.

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There are other inchoate offenses, like stalking. Weve made something a crime where nothing has happened yet but we fear something will happen. Burglary is also, in some sense, an inchoate crime. Its breaking and entering with intent to commit a felonyit doesnt matter if the felony isnt completed. Conspiracy and solicitation Conspiracy is very complicated. Theres a lot of law in that area. This is what we need to know: at common law, conspiracy is agreement between two or more persons to commit an unlawful act. Theres a lot of complexity in those words that we wont cover. But the crime is the agreement to commit an unlawful act. Its not an act! Before youve done anything towards committing the actual crime, you could be found guilty of conspiracy. Solicitation is the act of asking someone else to commit a crime. The moment you ask someone to commit a crime, youve committed solicitation. Its a oneperson crime! It comes even earlier than conspiracy! If the other person says no when you ask them to help you commit a crime, its solicitation. If they say yes, its conspiracy! The line between though, solicitation, and conspiracy can be very thin. Attempt, on the other hand, will take somewhat more time to materialized. There are specialized problems and issues regarding inchoate offenses. Note that you can sometimes have double and triple inchoate offenses. These bring us closer and closer to punishing thought. Can you have an attempted solicitation? Sure! You can ask someone to help you kill someone, and if they never get the message its failed solicitation: attempted solicitation. The issue is not only where the law is, but also where the law ought to be. At what point should the government be able to intervene in the process of preparing to commit a crime? Why would we have an inchoate offense? What are the arguments for recognizing a crime like attempt? Its a way that law enforcement can prevent crime. We dont want people murdered, robbed, or raped. So if we have someone stalking an individual or pointing a gun at someone, we want to give law enforcement a way to stop potential criminals in the act. Attempt Heres some terminology: whats the difference between a complete and an incomplete attempt? In a complete attempt, the offender does everything necessary to complete the crime but they fail (e.g. you shoot someone but they dont die). In an incomplete attempt, the offender gets stopped short from completing the attempt. Preventive law enforcement cant explain why we have inchoate offenses for complete attempt. How else can we explain the punishment of complete attempts? We might say that they are as culpable as the actual offender, but they just got lucky (or unlucky). Also, the person who failed this time might succeed next time. That person might be dangerous. Finally, complete attempts may be subject to general deterrence.

76 Why might murders go down while assaults go up? It is suggested that people who live in poor areas with poor emergency room care died, while people in wealthy areas with good emergency room care were saved. So as medical care gets better, more people survive murder attempts. So if you want to kill someone, try to kill them in a poor area. But that doesnt seem to have anything to do with ones dangerousness or moral culpability. Why should the law recognize luck? It is thus suggested that an attempted crime should get the same punishment as a completed crime. There are a whole bunch of arguments for inchoate offenses. General deterrence is not an argument for inchoate offenses (or so Dressler says). There are also arguments as to why we maybe shouldnt punish inchoate offenses.

McQuirter v. State McQuirter alleged followed a woman and children around, but never did anything. We should be careful about how quickly we should arrest. One risk is that the sooner you arrest a person, the more likely it is that youre punishing an innocent person. Big Brother! Even if someone is guilty, how soon do we really want government interfering? We do want the government to stop crimes, but how soon? Even if McQuirter was planning harm, at what point do we feel comfortable with having the officer drag the guy away in handcuffs? What are we going to punish McQuirter for? He was arrested for attempt to commit an assault with intent to rape. Assault, at common law, was an attempted battery. If you hit someone, its a battery. If you attempt to hit someone, its an assault. So, we can parse this crime as attempt to attempt a battery with intent to rape. This is a triple inchoate crime! You cant separate criminal law from criminal procedure. Note that Terry v. Ohio allows a police officer, short of arresting a person, to forcibly stop people and briefly question them. Terry is the most important case in criminal procedure. Terry and some other guys were walking back and forth in front of a jewelry shop late at night. The cop thought they were casing the joint. The cop forcibly stopped them and patted them down for weapons. He found that Terry had a gun. Terry got arrested and taken off the street. How much punishment? Should attempted bank robbery get the same punishment as completed bank robbery, or less? What are the arguments for punishing as much? What are the arguments for punishing less? 6 Stages from BW 1. You conceive of the idea to commit the crime 2. Evaluate the idea to determine if you should go forward 3. Form the intent to go forward (we do not punish at this point) 4. Prepares to commit the crime by getting the instruments necessary 5. Approach with the instrument in the menacing way

77 6. Make the demand (give me the wallet with the brick in hand) after this the crime has been committed Where is the inchoate crime? The MPC says anything after the substantial steps 4 and 5 are the areas where it is inchoate Whenever an attempt is charged, proof of the actual target crime establishes the intent.

What about the social harm? If there was less harm, shouldnt there be less of a penalty? Thats almost exclusively a utilitarian argument. Utilitarians are concerned with what will happen in the future. Retributivists are concerned with having you pay your debt to society. But there are two kinds of retributivists: harm retributivists and culpability retributivists. Culpability retributivists would say that we should punish attempt and completed offense equally. To a retributivist, inchoate laws themselves create a problem: wheres the harm? If I try to kill Mr. X but I fail, wheres the harm? If theres no harm, maybe there should be no punishment. Recall one definition of social harm: [N]egation, endangering, or destruction of an individual, group, or state interest, which [is] deemed socially valuable.[2] Compare this to drunk driving. If you see someone driving drunk, we get scared. Thats a harm. It forces us to behave differently. Thats also a harm. Theres also a utilitarian argument for punishing attempt less than a completed offense: marginal deterrence. If youre starting to attempt a crime, but you still have an incentive to stop early, you may still be deterred. Objectivism versus subjectivism An objectivist doesnt look inside the head of the offender. You dont punish an attempt unless and until you can find objectively that theres harm. A subjectivist says, basically, Who cares about the harm? They are much more focused on what the person has in mind, expressed through their statements or their conduct. An objectivist who focuses on harm will likely say less punishment for less harm. A subjectivist will say equal punishment for equal culpability. Model Penal Code generally treats attempted crimes as severely as completed crimes. Therefore, they are subjectivist. The exception is murder or first-degree felonies. For the most serious crimes, they give a benefit to the attempter by reducing the grade of the crime. Dressler tries to shoot the clock, but kills Mr. X instead. At common law, thats murder by depraved heart. But if Mr. X doesnt die, its not attempted murder. At common law, the mens rea of attempt is the intent to do the act that constitutes the attempt and the intent that the underlying offense be committed. Attempt is a specific intent crime. It requires the specific intent to have some future act happen. Attempt always requires intent. Even if the underlying crime doesnt require intent (like extreme reckless murder), the attempt does

78 require intent. A subjectivist looks at the mens rea. An objectivist looks at the actus rea. Hypo: Imagine I am standing here and I have a gun in my pocket and I take my sweater off and wrap it around my ahead, and I make sure I cant see anything, I am going to take this gun out to stop the clock from operating shoot Sheri **BW**The actor must intentionally commit the act or acts the actus rea of the offense, he must perform acts that bring him close to the proximity of the offense. there is no question I intentionally fired the gun (first intent) (second intent) I must commit the act with the intentions of performing the target crime the target crime is murder, and I would have to intend to kill Sheri usually the second, specific intent is the key in mens rea.

People v. Gentry Facts Gentry convicted of attempted murder. Appeals and say intent necessary for attempted murder was erronerous. Ct. says you need specific intent to kill. Agrees w/ gentry and reverse. Analysis: There is a difference between the mental states required to prove murder and attempted murder. Attempt murder requires specific intent to kill. Consider some variations on the facts of this case under the Model Penal Code. If youre dealing with a completed attempt, use 5.01(1)(a) or (b). If youre dealing with an incomplete attempt, use 5.01(1)(c) and 5.01(2). If youre dealing with a conduct offense, use 5.01(1)(a). If youre dealing with a result crime, use 5.01(1)(b). Did Gentry complete his attempt? Yes. Should we look at 5.01(1)(a) or (b). Is murder a conduct crime or a result crime? Common Law: If Gentry threw gasoline on his girlfriend in order to kill her, thats evidence of purpose. He would be guilty of attempted murder. Causing a particular result, her death, is an element of the crime. He did the actions with the purpose of causing that result. This is consistent with common law. What if Gentry did it to teach her a lesson, but he knew that her death might result? Its still a completed attempt, with the result being death. But his state of mind has changed. Is he still guilty of attempted murder under the statute? Its different to say that you believe something might happen versus will happen. This case sounds more like reckless behavior. This is almost like knowingly. But in this case, hes not guilty. If he sets his girlfriend on fire without knowing how dangerous his actions were, hes definitely not guilty of attempted murder. One more point before we proceed to the actus reus of attempt. Bob believes that his actions will cause the death of the people. This will make him guilty under the Model Penal Code of attempted murder. Whats the answer at common law? We dont know how we solve this. There is a split of authority. Many jurisdictions say that when you use the common law definition of attempt, what we really mean is purpose, not knowledge. Some jurisdictions say that intent means purpose or knowledge. They say he basically

79 acted purposely. We have a split. The Model Penal Code gives us an answer by having the word belief in there. The Model Penal Code would convict Bob, but common law would be split. BW: Judge should have stopped with the intent to kill that would have satisfied our second intent my example. BW: Instead the judge in Gentry charged alternative mens rea there are different mental states besides intention that can support a murder charge BW: Depraved heart murder is reckless murder given that you could establish murder that is less (such as reckless) as intent Do we all recognize that murder is greater social harm than attempted murder? BW: If someone is intent on committing a particular crime and they are thwarted in some way, there is unspent intent, so there is a likelihood they will try again think of the definition to attempt, it means to try if you fail, maybe you will try it again whereas someone who commits a reckless homicide, maybe they achieved it when they acted recklessly, or had another goal in mind, the may not be as dangerous as someone who does something intentionally. BW: Murder in the MPC Murder is a result crime 5.01 (b)

Bruce v. State Held that ATTEMPTED felony murder in not a crim in Maryland b/c it is not a specific intent crime. Voluntary manslaughter is an intentional killing brought on by heat of passion can be an attempt crime Involuntary manslaughter is an unintentional killing cannot be an attempted crime. Felony murder is the same as first degree murder BW: The court has subordinated the policy of felony murder that is deter dangerousness during the commission of feloniesto the policy of attempt law. But to me there is a policy out there that equates felony murder to first degree murderis there any malice involved in felony murder. BW: Malice: intent to kill, intent to do grievous bodily harm, depraved heart murder, felony murder BW: Because statutory rape is a strict liability crime, there is no mens rea with respect to having sex with a 14 year old. If thats the case, can he be charged with an attempted rape. Actus Reus

Tests for attempt Last act test A criminal attempt only occurs when the actor has performed all the acts they believe are necessary to commit the target offense. Physical proximity test To be guilty of attempt, the actors conduct must be so near to the completed offense that it would result in that offense actually

80 happening if the actor wasnt hindered by outside circumstances. Dangerous proximity test This is Holmess test: theres no attempt unless the danger of success is very great. Indispensable element test There is no attempt if the actor has not obtained some indispensable feature of the criminal plan. Probable desistence test The actor has committed an attempt if they reached a point where its unlikely that they would have voluntarily desisted from his effort to commit the crime. Unequivocality (res ipsa loquitur) test An act isnt an attempt until it ceases to be equivocal. This is an objectivist test.

United States v. Mandujano Preparation alone is not enough for attempt. There must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter and the act must not be equivocal in nature. BW: You do not want to interfere too soon to prevent someone who may desist from the crime and determine it is inappropriate BW: the notion of objectivism and subjectivism makes drawing the line hard. BW: The strength of the evidence of the actors mens rea the better. Commonwealth v. Peaselee The defendant is indicted for an attempt arson (to burn a building and the goods within it) to secure the insurance proceeds. The facts indicate that the defendant "constructed and arranged combustibles in the building" (including wood in a pan of turpentine) which was to be set fire by a lighted candle. The defendant seeks the help of a young man to help carry out the task but the young man refuses to get involved. The defendant, driving with the young man who has refused to become involved, gets within 1/4 mile of the building, when he claims to have changed his mind and drives away. He carried out no further acts toward putting his plan into effect. Chief Justice Holmes's opinion take up the question of the evidence to determine whether it was sufficient to deny the defendant's motion for a directed verdict. Holmes notes that in preparation/attempts cases, "there is still a chance that the would-be criminal may change his mind." . The significance of the "he-mightchange-his-mind" consideration is that it raises a question about the defendant's present intent. In attempts case, we are generally dealing with a question as to whether the acts taken in conjunction with the intent are "substantial acts" taken toward the commission of the offense. Holmes makes clear that the acts must be accompanied by a "present intent to set the fire . . . ." The defendant "must be shown to have had a present intent to accomplish the crime without much delay,

81 and to have had this intent at a time and place where he was able to carry it out." People v. Rizzo Facts: Df and three others planned to rob Rao or his payroll person of the $1200 either would be carrying from the bank. Two Df had guns. They drove a car looking for Rao or the other man having the payroll. They went to the bank, then to various buildings, to no avail. Then while Df Rizzon entered a building, two police officers apprehended all four df. Neither Rao or the other man were at the place of apprehension, neither had been seen. Issue: Whether the steps taken by the Df prior to his arrest amounts to the commission of a crime? Holding: No. Procedure: S. Ct. found Df guilty of attempted Robbery. Reversed and remanded for new trial. Rule: An act, done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime. Tending = to exert activity in a particular direction. Ct Rationale: The money wasnt taken from Rao or the other man by force or other means. Rao was not found, Dfs were still looking for him; no attempt to rob him could be made, at least until he came in sight. Rao was not in the building nor the other man when Rizzo entered. No money had been drawn from the bank for payroll by anybody at the time of arrest. PL A: Four armed assailants stalking the known paths of a man carrying payroll is a dangerous, and near completion of the crime. Def A: The preparation for the crime is too remote to constitute the crime of attempt. Actus reus of attempt How far do you have to do from thought to completion in order to have an attempt? Tests for attempt. . . 1. Last act test. . . 2. Physical proximity test . . . 3. Dangerous proximity test . . . 4. Indispensable element test . . . 5. Probable desistence test . . . 6. Unequivocality (res ipsa loquitur) test Courts dont usually mention these tests with these terms. These tests are only here to help us remember. With only a few exceptions, most jurisdictions that follow the common law dont follow one particular test. Usually, a jurisdiction will use multiple versions of these tests. For the purposes of the exam and for purposes of being a lawyer in a non-Model Penal Code jurisdiction, you must be familiar with all the tests. The Model Penal Code has its own test, so you would use that test in a Model Penal Code jurisdiction. There are a few states that really actually apply a particular common law test, like New York. In most states, all of these tests and more are out there and may be considered.

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Drawing the preparation-perpetration line You will frequently see courts saying that the line between a non-attempt and an attempt is the line between preparation and perpetration. This is the thing courts will talk about most frequently. When youre preparing, youre not attempting. When youre perpetrating, youre attempting. But this is an admittedly useless standard. Consider the facts as set out in Dressler, pp. 716-717. We will discuss the January 15th situation, steps 1-10. There is nothing intellectually inconsistent about convicting someone for two counts of attempted murder of the same person. If we assume that we know that Anne wants to kill Bob, when can we arrest her for attempted murder? If we know shes dangerous and culpable, why dont we stop her? Who do we use in the probable desistence test? Is it an objective test or a subjective test? Its usually viewed as an objective test. But what is the standard by which we judge the accused? Some of these tests are very hard to justify from a subjectivist perspective. What about preventative law enforcement? Whats the dividing line? In a Model Penal Code jurisdiction, there is a defense of renunciation. You must freely and completely give up your plan. If youre an objectivist, what is your position? Should we recognize a defense of genuine abandonment of the criminal plan? The objectivist would reject the defense, while a subjectivist would accept the defense. If you have truly renounced your dangerous intentions, you are no longer dangerous or culpable. The common law tends to be objectivist, while the Model Penal Code tends to be subjectivist. We dont want to find attempt too close to the mere thinking stage because that would be unjust, but we dont want to find attempt to close to the completion stage because we want a shot at preventing the criminal conduct. Strict Version of the Unequivocality Standard An act does not constitute an attempt unless the actors specific criminal purpose is evident from her conduct, without considering any statement she may have made before, during, or after the incident regarding her state of mind. BW: the fundamental shortcoming is Just how dangerous does it have to get before you are going to let the cops intervene. Solicitation Specific intent crime Requests, invites, encourages, another to commit a crime A solicitation an a slight act by the commissioner can elicit an attempt.

83 People v. Miller Ignore the guy saying he was going to kill him earlier Guy walks towards him and loads the gun, but never points it BW: Do you want it to go that far before intervention? As a society? State v. Reeves Two middle school students plan to kill their teacher with rat poison. They actually did take rat poison to school. But they were giggling. Look at the Model Penal Code approach. The Tennessee statute basically uses the Model Penal Code, but not completely. Look at 5.01(1)(c) because this was an incomplete attempt. You will be guilty if you do a substantial step towards the commission of the crime. In 5.01(2), there are a bunch of things that are examples of things that may be sufficient to corroborate the actors criminal purpose. We dont want to punish innocent people. Nothing in the Model Penal Code requires that we figure out purpose merely from physical conduct. If somebody says, Im gonna kill X, we want to see conduct that strongly corroborates their statement that theyre going to kill X. The poison in the purse is presumably strongly corroborative. But if any of the categories 5.01(2)(a) through (g) are present, it just means that its not legally permissible for a judge to hold that its not legally sufficient. To put it another way, if any of these factors are present, the case should go to a jury and it would be wrong to direct a verdict of acquittal for a defendant if they meet one of those categories and its strongly corroborative of criminal conduct. The categories (a) through (g) are only for the judge. They are not read to the jury. The jury only hears the substantial step language. The Model Penal Code is strongly distinguished from the common law in that most of the common law tests look back to see how close the defendant has come to completion. The Model Penal Code test asks how far the defendant has gone from the thought process. If the defendant has taken a substantial step towards committing the crime, even if there is a lot more to be done, you can convict. Therefore, its much easier to convict under the Model Penal Code than at common law. What if they thought that they brought poison, but it was really sugar? Thats the impossibility defense. The case for tomorrow involves Internet chat. The defendant is charged with attempting to send pornography to an underage female when in fact he sent pornography to an overage male. Is there a defense there? This is a complicated issue. BW: The MPC supports a number of things that can support a finding of guilty Tennessee did not adopt that. BW: What does proximity focuses onthe proximity testwhat needs to be done

84 BW: The MPC focuses onwhat the actor has already done, and whether that action is a substantial step of the corroborative purpose. BW: 5.01(2) intended to give some definite content to the substantial step requirement. #3: Incomplete attempt: do defendants acts create a substantial attempt that is strongly corroborative of the crimehere it is burglary? Not 501 (2)(a) lying in wait . . . 501(2)(c) is he reconordering, by shining the light into the van . . . can you CHARGE him, not CONVICT, CHARGE . . . evidence in mens rea to attempt crimes is almost always circumstantial

Conspiracy defined: a partnership in criminal purposes, its an AGREEMENT a mutual agreement or understanding, express or implied, between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means. Who else besides the trigger man is also guilty of that offense? BW Hypo: Three people are walking down the street and one of them runs up an assaults the person and takes his watch and all three run off. **BW**: the jist of the substantive crime of conspiracy is very simple, its the agreement to commit some crime. It is not the group, people use the term loosely in terms like partnership for criminal purposes. It is the AGREEMENT. BW: At common law it is a separate and distinct crime so that it does not merge with the object of the conspiracy. BW: The thing that you have to understand is that, in a lot of cases, when two people or more to conspire to commit a crime the government can normally show that not only show they were conspirators, but they were accomplices. . . BUT YOU HAVE TO BE VERY CAREFUL TO KEEP CONSPIRACY AND ACCOMPLICE SEPARATE. BW: The crime is complete upon formation of the agreement You must think about this issue and entirely different from Torts. In Torts, you talk about vicarious liability. The employer isnt really negligent; its just that they hired a certain person who was negligent. Whats good for Torts is good for Torts, but this is Criminal Law. Its much different from Torts. Were looking for personal responsibility. Its obvious if you pull the trigger that youre responsible. But who else should be held responsible for something they did not do? Thats the question of this chapter. BW: THE RATIONALE: pg. 810 the heart of the rationale lies in the factor at least the assumptionthat the collective action toward an antisocial end involves a greater risk to society than individual action towards the same end. BW: It is good, because it fills the gap that police can intervene before the attempt stage

85 BW: Conspiracy is a specific intent crime. BW: Under the common law a person can be convicted of a conspiracy before committing any act.

There are two kinds of complicity: 1. Accomplice liability 2. Conspiratorial liability Accomplice liability and conspiratorial liability overlap 99%. Most of the time, if you could be held liable under accomplice liability, then you could also be held liable under conspiratorial liability and vice versa. But not always. There are a few cases where someone is one but not the other. The common law terms were make-or-break distinctions for prosecutors at common law. Virtually no state today follows the odd, technical common law rules that existed way back when. But even though thats true and some of the distinctions between the terms have disappeared, you will find that courts even today will talk about defendants using those terms. To understand what theyre talking about, you need to refer to the original common law definitions. For a very long time, an accessory after the fact is no longer part of this analysis. That sort of person who is described as an accessory after the fact today is not deemed to be guilty of the crime for which they were accessory after the fact. Well hold them guilty of obstruction of justice or misprision of a felony. Pinkerton v. United States BW: Two kinds of conspiracysingle and continuous BW: Significance of Case: Conspiracy is a substantive crime in which you have agreed to commit a target crime, but is also a theory of responsibility for the actions of someone else, and that is what this case is about BW: One of the Pinkerton brothers, was not out committing the crime (he was in jail), the substantive crimes that were committedcould the brother in jail be liable for those crimes even though he committed no act to further those crimes. BW: In other words, in conspiracy, in a true conspiracy, one actors actions the other action is responsible BW: Many times you now need an overt act to commit conspiracy, we do not convict people for what they think, its what they do BW: The overt act requirement is statutorily imposed Facts: The Pinkerton brothers were convicted of tax crimes. All the offenses were based on a single conspiracy. Issue: Can we convict Daniel based on the conspiracy even though he was in jail at the time the crimes actually occurred? Rule: NEW RULE! In the case of a continuous conspiracy, an overt act of one partner may be the act of all without any new agreement specifically directed to that act unless a conspirator takes some affirmative action to withdraw from the conspiracy.

86 Analysis: The majority finds that when you have a conspiracy, its all for one and one for all unless someone affirmatively pulls out of the conspiracy. Even if they didnt physically participate in the act for which theyre charged, they can be found at fault just for being in the conspiracy. Rutledge believes this goes too far. Since Walter was the only one who committed the actual crimes, and there was no evidence to establish that Daniel helped in any way, finding Daniel at fault imposes a very broad form of conspiratorial liability that this Justice is worried about. Conclusion: Daniels conviction is confirmed. Notes and Questions 1. Okay! 2. A, I think is guilty of solicitation, and then I guess robbery and car stealing as an accomplice. B is only guilty of robbery, as is C. D is probably guilty of car stealing and he would be the accomplice to the two robberies of B and C. However, under Pinkerton, I think everybody would be guilty of everything: conspiracy, one count each, robbery, two counts each, then also aiding and abetting robbery, two counts each, maybe solicitation, one count each, and car stealing, one count each. Maybe theyd also inherit As aiding and abetting robbery (two counts each) and aiding and abetting car stealing (one count each). Thats a heck of a lot of stuff! People v. Swain BW: Mens rea for depraved heart murder is recklessnesswhich by definition is unintentional. BW: Pinkerton says if you are a conspirator you are responsible from any acts that flow from the conspiracy. BW: The common law is Bi-Lateral for conspiracy BW: At this point in our discussion, we are talking about common law conspiracy and it not bilateral here (Question 3, pg.821), no conspiracy. BW: (Question 5, pg. 821) Use 5.01 B, keyword belief, they are guilty of attempted murder, o BW: They probably would not be guilty of conspiracy to commit murder, because they were trying to blow up the building, not people. BW: Does not necessarily agree with this case, if you view it under Pinkerton. Facts: Swain and Chatman convicted of conspiracy to commit murder of 15 year old in drive by. Question: Whether the intent to killis a required element of the crime of a conspiracy to commit murdermore particularlytarget offense is murder in the second degree, does that require a proof of express malicethe functional equivalent of intent to kill, or can one conspire to commit implied malice murder? Dfs contend it was an error to instruct the jury on implied malice second degree murder since implied malice does not require a finding of intent to kill Crime of conspiracy is defined in the MPC as a specific intent crime (a) the intent

87 to agree or conspire and (b) the intent to commit the offense that was the object of the conspiracy. MPC 187 Def of Murder: unlawful killing of a human being with malice aforethought MPC 189: 1st: Wilfull, deliberate, and premeditated killing, 2nd: all other murders Held: One cannot be found guilty of conspiring to commit murder where the requisite element of malice is implied. Conclusion: A Conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice. BW: Intent has two meanings what you know will happen, and what will happen BW: Conspiracy is an intent crime Is knowing conduct enough to find conspiracy?

Common law versus the Model Penal Code You can be found guilty if you did it, or if youre legally accountable for the person who did do it. But when are you legally accountable? There are three circumstances, but we only need to worry about two of them. MPC 2.06(2)(c) involves accomplice liability. What makes someone an accomplice? You need the mens rea of purpose, and the actus reus of solicitation, aiding, or failing to carry out a legal duty. Its kind of like the common law so far. Whats the significance of lookout by prearrangement? Why would it matter? It could matter because youve given your friends a psychological boost by promising to help themthats encouragement. If the assistance isnt prearranged, they dont get the benefit of the encouragement. If theres no prearrangement, and thus no encouragement, and the attempt to aid fails, then at common law, the defendant isnt an accomplice. Under the Model Penal Code, the attempt makes him guilty as an accomplice. Mere prearrangement can give you both the mens rea and the actus reus at common law. The agreement to aid is a mens rea of accomplice liability in the Model Penal Code. When is there a legal duty to prevent something from happening? Where do we look at common law to get the answer? No clue. Oh, you look back at omission by commission. There are certain categories where you have to act, but you dont usually have a legal duty to keep harm from occurring. These are the basics. People v. Lauria Facts: Lauria ran an answering service. Some prostitutes used his service. Lauria got arrested along with several prostitutes and was indicted for conspiracy to commit prostitution, but the trial court set aside the indictment. The People

88 appealed. Issue: Is a supplier part of a conspiracy if he knowingly supplies goods and services to a buyer who will use them with criminal purposes? Rule: NEW RULE! To establish the mens rea necessary to convict a supplier of conspiracy, you need either direct evidence that he plans to participate in the criminal activity of another or you need to be able to draw an inference that he has a special interest in the activity or show that the crime is of an aggravated nature. Analysis: The court deduces the new rule from cases where intent (purpose) may be inferred from knowledge. In application, the court finds that Lauria didnt take any direct action to help in the commission of criminal offenses. Furthermore, the court notes that the offense hes alleged to have furthered is only a misdemeanor, and so purpose cant be inferred from knowledge that way. The court finds there is thus not enough proof to try Lauria for conspiracy. Conclusion: The decision of the trial court is upheld and Lauria is free to go. This deals with the mens rea part of accomplice liability. Do you have to have purpose or knowledge? This case teaches us two important things! 1. Sometimes you can infer purpose from knowledge. There are several ways you can do that. Its not just that they knew, but they actually wanted it to happen. For example, they might have a stake in the venture. If the Sacramento Bee charges prostitutes more to advertise than others, then you can infer that the Bee wants them to succeed in prostitution. 2. This is dicta: but the possibility is suggested that for really serious crimes, maybe we should be able to punish people simply on the basis of knowledge and not purpose. The common law is deeply divided. Many jurisdictions say only purpose will do. Some jurisdictions are willing to punish on the basis of mere knowledge, at least for serious crimes. The Model Penal Code requires purpose. Sometimes you can infer purpose from knowledge, but you need something extra in order to draw the inference. This is a controversial issue. Some would say, How dare we prosecute the accomplice who is otherwise law-abiding and not making any special profit? Others would say, We want to require people and businesses to have some level of morality and not participate in bad acts theyre aware of. In reality, this doesnt happen too often. The more common situation is that the merchant believes hes selling to a gang member, for example. This suggests recklessness. But no one has argued that we should punish for recklessly assisting in a crime.

Commonwealth v. Azim The actus rea of conspiracy is the agreement itself Azim was there during the beating and robbing of the Defendant, he appealed for his conviction of conspiracy.

89 You need the double intentBW: WHERE IS IT IN AZIM!?!?!?! Hes driving his carboth intents

Commonwealth v. Cook BW: But how is this different than Azim? BW: We are talking about the crime of conspiracy here. BW: There has to be an intent to agree and intent that the crime has been achieved to commit a conspiracy. BW: An agreement has to be proven (although I am not sure there is an agreement in Azim) BW: The Cook court realizes that a conspiracy is an agreement and not simply the parties to it. BW: So to be an accomplice to a conspiracy, you must aide in the formation of the agreement. State v. Foster Facts: The defendant recruited someone to go after a guy that he thought raped his girlfriend. They found someone who they thought matched the description, and they started to beat him up. The defendant wanted to go get his girlfriend to have her check if it was the right guy, but he didnt want the supposed rapist to get away, so he gave his friend a knife. While the defendant was gone, the supposed rapist charged at the defendants friend, who stabbed the supposed rapist and killed him. The defendant was convicted of kidnapping, assault, and accessory to criminally negligent homicide. The defendant appealed on the basis that being an accessory to criminally negligent homicide is legally impossible because you cant intend for something to happen unintentionally (negligently). Issue: Must the defendant act with intent in order to be convicted of accessory to criminally negligent homicide under the rule of dual intent? Rule: Accessorial liability for criminally negligent homicide requires the same level of culpability as the underlying offense, that is, negligence. Analysis: Even though you cant attempt or conspire to commit an offense that doesnt require intent, you can be an accessory to such an offense. The court says that the statute that establishes accessorial liability in Connecticut is not limited to purposeful or knowing crimes, but also reckless or negligent crimes. To be found guilty as an accessory to a crime, you must have intentionally assisted while having the level of culpability as to the underlying crime that is required by that crime. Conclusion: The conviction is upheld. Notes and Questions 1. The statutes in New Hampshire might actually be different in substance from the ones in Connecticut. On the other hand, this court might be confusing two possible meanings of intentional: voluntary and purposeful or knowing. 2. A. Alice intentionally solicits the behavior that leads to the death of Carl. If

90 Alice herself was criminally negligent, then she may be found guilty. B. never asked Bob to run red lights. Maybe she would not be found guilty. Alice

Kilgore v. State Issue: Defendant does not want evidence allowed because he was not a coconspirator with the states witness. 3 Separate Conspiracies Has to be a member of a conspiracy with Kilgore for hearsay evidence to be presented. This type of conspiracy is a wheel conspiracy Complicity There are two kinds of complicity: (1) Accomplice liability, and (2) conspiratorial liability. Accomplice liability and conspiratorial liability overlap 99%. Most of the time, if you could be held liable under accomplice liability, then you could also be held liable under conspiratorial liability and vice versa. But not always. There are a few cases where someone is one but not the other. The common law terms were make-or-break distinctions for prosecutors at common law. Virtually no state today follows the odd, technical common law rules that existed way back when. But even though thats true and some of the distinctions between the terms have disappeared, you will find that courts even today will talk about defendants using those terms. To understand what theyre talking about, you need to refer to the original common law definitions. For a very long time, an accessory after the fact is no longer part of this analysis. That sort of person who is described as an accessory after the fact today is not deemed to be guilty of the crime for which they were accessory after the fact. Well hold them guilty of obstruction of justice or misprision of a felony Youll be liable as an accomplice if: (1) The person gave helped out in the crime, or (2) the person had the intent to promote or facilitate the commission of the crime. So the actus reus is: youve acted, youve encouraged, or youve made an omission when you should have done something. The mens rea is: intent to aid and intent that your assistance result in the commission of the offense. Whenever you think about accomplice liability, think about actus reus first: how did the defendant aid? Then go to the mens rea. Did the defendant intend to do that act? Did the defendant also intend that the act result in the commission of an offense? You can be found guilty if you did it, or if youre legally accountable for the person who did do it. But when are you legally accountable? There are three circumstances, but we only need to worry about two of them. MPC 2.06(2)(c) involves accomplice liability. What makes someone an accomplice? You need the mens rea of purpose, and the actus reus of solicitation, aiding, or failing to carry out a legal duty. Its kind of

91 like the common law so far. If youve given your friends a psychological boost by promising to help them thats encouragement. If the assistance isnt prearranged, they dont get the benefit of the encouragement. If theres no prearrangement, and thus no encouragement, and the attempt to aid fails, then at common law, the defendant isnt an accomplice. Under the Model Penal Code, the attempt makes him guilty as an accomplice. Mere prearrangement can give you both the mens rea and the actus reus at common law. The agreement to aid is a mens rea of accomplice liability in the Model Penal Code.

What makes a risk unjustifiable? Its product of the gravity and the risk of the harm. This is the Learned Hand formula, more or less. What goes on the other side of the balance? Its her purpose in encouraging the cab driver to speed. 2.06(4) deals with result crimes: (4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. If we want to find out whether someone is an accomplice in the commission of an offense, we go back to 2.06(3). So an accomplice in the conduct becomes an accomplice in the offensive if they act with the kind of culpability with respect to that result that is sufficient for that offense. If the defendant doesnt have that kind of culpability, they should be acquitted of that offense. Look at 2.06 as a three-step question: (1) What conduct caused the result? (2) Was the defendant an accomplice in the conduct that caused the result? (3) If yes, did the defendant have the level of culpability regarding the result, as stated in the definition of the offense? If you dont solicit the thing that caused the result, you can argue that you werent an accomplice. Look at 2.06(4): it deals with result crimes. (4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. The result is the death of Carl. Subsection 4 applies in this case because were dealing with a result crime: homicide. If we want to find out whether someone is an accomplice in the commission of an offense, we go back to 2.06(3): (3) A person is an accomplice of another person in the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense, he

92 (i) solicits such other person to commit it, or (ii) aids or agrees or attempts to aid such other person in planning or committing it, or (iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or (b) his conduct is expressly declared by law to establish his complicity. So an accomplice in the conduct becomes an accomplice in the offensive if they act with the kind of culpability with respect to that result that is sufficient for that offense. If the defendant doesnt have that kind of culpability, they should be acquitted of that offense. Look at 2.06 as a three-step question: 1. What conduct caused the result? 2. Was the defendant an accomplice in the conduct that caused the result? 3. If yes, did the defendant have the level of culpability regarding the result, as stated in the definition of the offense? If you dont solicit the thing that caused the result, you can argue that you werent an accomplice. Braverman v. United States Reinforces the basic principle of conspiracy The most important thing is what did you agree to Not how many offenses Problem 2 pg 849 BW SAYS ASSUME THIS COULD BE AN EXAM QUESTION Under the MPC they would only be guilty of one conspiracy as long as they were decided at the same time, or if it was one continuous conspiratorial relationship For BW exams, make sure you got the reasoning correct In this case it the relationship, not decided at the same time Whartons Rule An agreement by two persons to commit an offense that by definition requires the voluntary concerted criminal participation of two persons e.g., adultery, bigamy, incest, receipt of a bribe cannot be prosecuted as a conspiracy. Whartons Rule does not apply if more than the minimum number of persons necessary to commit an offense agree to commit the crime or if the two persons involved in the conspiracy are not the two people involved in committing the substantive offense. An exception to merger under the common law MPC does not recognize Whatron 2 exceptions to Wharton third party exception, more than two required Wharton does not apply exception if the two persons involved in the conspiracy are not

93 the two involved in the substantive offense D1 and D2 also the legislative exemption rule [1] Common Law A person may not be convicted of conspiracy to violate an offense if his conviction would frustrate a legislative purpose to exempt him from prosecution for the substantive crime [2] Model Penal Code Unless the legislature otherwise provides, a person may not be prosecuted for conspiracy to commit a crime under the Model Code if he would not be guilty of the consummated substantive offense: (1) under the law defining the crime; or (2) as an accomplice in its commission. A person is not guilty as an accomplice in the commission of an offense if he was the victim of the prohibited conduct, or if his conduct was "inevitably incident to its commission." [MPC 2.06(6)(a)(b)] Ianelli v. United States Whartons rule sort of ignores second rationale for conspiracy Presumption crimes do not merge Wharton merges them Questions on page 854, #2 WHARTON? A) No, offer takes only one. But for D4? Yes, because completing of a sale takes two people. B) No, because the taxpayer could do it on his own without the other persons knowledge. Gebrardi v. United States Female cannot be prosecuted under the Mann Act. A subjectivist looks at the mens rea An objectivist looks at the actual actions. Accomplice Liability (BW) In a lot of situations you are going to have parties who engage in group criminality There is going to be conspiracy and aiding/abetting Aiding and Abetting is not a crime as opposed to one way that you can view conspiracy, conspiracy is a crime but it is also a basis of liability for substantive offenses He puts flammable materials in the home, and one of his guys pursuant to the agreement lights the match. Broker indicted for conspiracy, arson, but he didnt throw match. However, the theory of the arson was conspiracy (i.e. pinkerton), and arson on theory of aiding and abetting (accomplice liability). He was convicted. Point of this example is that aiding and abetting is not A CRIME. Conspiracy is a crime and a basis of liability for substantative offense. Aiding and abetting is only the later.

94 It is a basis for making you liable for the acts of another party. Its basically a theory of responsibility. It is derivative liability. It is dependant on the principal violating the law.

State v. Ward Principals 1st degree Perpetratorsis the one who actually commits the crime by his hand, an agency, or an innocent person 2nd degree Abettors is one who is guilty of felony by reason of having aided, counseled, commanded, or encouraged the commission thereof in his presence, either actual or constructive Accessories as before the factInciters is one who is guilty of felony by reasoning of having aided, counseled commanded or encourage the commission thereof, without having peen present either actually or constructively at the moment of perpetration Accessories after the fact criminal protectors one who, with knowledge of the other

2. Elements of accomplice liability: In general State v. Hoselton Facts: Hoselton was hanging around with some of his friends who broke into a barge. He was arrested along with them and charged with entering without breaking into a vessel with intent to commit larceny as an accomplice. The only evidence that showed that he was an accomplice was his statement during questioning that you could say that he was a lookout. Hoselton was convicted and he appealed, claiming insufficient evidence. Issue: Is there enough evidence to convict the defendant of entering with intent to commit larceny? Rule: If the State can show that the defendant was a lookout, the defendant may be convicted as a principal in the second degree (someone who helped out at the actual time of the crime). Analysis: The court says that the evidence that the defendant was a lookout is far too thin to meet the States burden of proof. The defendant just said that you could say he was a lookout. He didnt know his friends were going to steal stuff and he never reaped any benefits from the crime. Conclusion: The conviction is overturned. The only evidence that showed that the defendant was an accomplice was his statement during questioning that you could say that he was a lookout. Is there enough evidence to convict the defendant of entering with intent to commit larceny? If the State can show that the defendant was a lookout, the defendant may be convicted as a principal in the second degree (someone who helped out at

95 the actual time of the crime). Youll be liable as an accomplice if: (1) The person gave helped out in the crime, or (2) the person had the intent to promote or facilitate the commission of the crime. So the actus reus is: youve acted, youve encouraged, or youve made an omission when you should have done something. The mens rea is: intent to aid and intent that your assistance result in the commission of the offense. Whenever you think about accomplice liability, think about actus reus first: how did the defendant aid? Then go to the mens rea. Did the defendant intend to do that act? Did the defendant also intend that the act result in the commission of an offense? You can be found guilty if you did it, or if youre legally accountable for the person who did do it. But when are you legally accountable? There are three circumstances, but we only need to worry about two of them. MPC 2.06(2)(c) involves accomplice liability. What makes someone an accomplice? You need the mens rea of purpose, and the actus reus of solicitation, aiding, or failing to carry out a legal duty. Its kind of like the common law so far. If youve given your friends a psychological boost by promising to help them thats encouragement. If the assistance isnt prearranged, they dont get the benefit of the encouragement. If theres no prearrangement, and thus no encouragement, and the attempt to aid fails, then at common law, the defendant isnt an accomplice. Under the Model Penal Code, the attempt makes him guilty as an accomplice. Mere prearrangement can give you both the mens rea and the actus reus at common law. The agreement to aid is a mens rea of accomplice liability in the Model Penal Code. PG 984 Section 2.06 3 the mens rea, its purpose. 3 (i,ii,iii) actus reus

Mens rea of accomplice liability People v. Lauria To establish the mens rea necessary to convict a supplier of conspiracy, you need either direct evidence that he plans to participate in the criminal activity of another or you need to be able to draw an inference that he has a special interest in the activity or show that the crime is of an aggravated nature. This case teaches us two important things: (1) Sometimes you can infer purpose from knowledge. For example, they might have a stake in the venture. If the Sacramento Bee charges prostitutes more to advertise than others, then you can infer that the Bee wants them to succeed in prostitution. (2) This is dicta: but the possibility is suggested that for really serious crimes, maybe we should be able to punish people simply on the basis of knowledge and not purpose. Sometimes you can infer purpose from knowledge, but you usually need something extra in order to draw the inference. The common law is deeply divided. Many jurisdictions say only purpose will do.

96 Some jurisdictions are willing to punish on the basis of mere knowledge, at least for serious crimes. The Model Penal Code requires purpose. BW: He knows of the crime and he intends to participate OR the crime is very harmful or serious and he has a stake (no legit purpose for the type of goods supplied, too much) BW: You have this question of whether knowledge is sufficient BW: Intent at the common law means knowingly or purposely BW: Aiding and abetting is knowledge enough? Most courts treat the same as conspiracy Knowledge alone usually isnt. BW: Because conspiracy is inchoate and so far away from the actual crime maybe it is appropriate they have appropriate crime so you can justify a lesser mens rea with aiding and abetting however most court hold not an accomplice in the commission of an criminal offense unless he shares the criminal intent of a principle there must be a community of purpose in the unlawful undertaking

Riley v. State Riley and another man opened fire on a crowd of people. State wasnt able to prove b/c of ballistics evidence whose weapon hurt the injured individuals. Jurors were instricuted to decide whether Riley acted as a prinipal (by firing the shot) or as an accomplice (aid and abetting Portalla to fire). Jury found him guilty as accomplice. Riley argues that state didnt prove mens rea. Riley relies on Echols which says intent must be shown, not recklessness. Issue: does the law of complicity require recklessness or intent for assault cases? Holding: Must have acted with intent to promote or facilitate the commission of the offense 206 (a) MENS with the purpose of promoting or facilitating the commission of the offense he ACTUS (i) solicits such other person to commit it, or (ii) aids or agrees or attempts to aid such other person in planning or committing it; or (iii) having a legal duty to prevent the commission of the offense, fails to properly do so. BW: The mens rea in Riley is recklessness it is unintentional act BW: The question becomes can you aide and abet an unintentional act, you cannot conspire to commit an unintentional act. BW: Under the MPC you can, but its a little confusing. Requires 3 and 4 of 206 BW: This is a result crime so we can use 4. BW: Question you are asking yourself: Was the defendant an accomplice in the conduct of the offense BW: ***** #1 pg 874 (B) You need to have the culpable state of mind for the offense. BW: If you have a felony murder rule that for the felony murder that doesnt require a culpable state of mind, you have to ask about the result (since its a result crime).

97 BW: In RILEY, you can make out a felony murder charge BW: You can have aiding and abetting in crimes in which recklessness is the culpability of that offense.

Foreseeable consequences doctrine State v. Linscott BW: Linscott is the accomplice, their plan was to go in the back way, but they could not, so they decided that Mr. Linscott would break the window (which he did with his body without entering), principal shoots and kills and stills BW: You can charge with Depraved Heart Murder under the Model Penal Code its reckless with disregard for human life. BW: You can charge him with burglary, the guy breaks the glass and the guy immediately shoots, but lets get back to our discussion BW: Linscotts argument is Winship this particular statute in Maine allows me to be convicted of murder without the state having to establish each and every element of the offense. BW: The court says the statute in Maine for aiding and abetting is (see page 877) BW: Reasonably foreseeable consequence of his conduct is the issue here, is it one? BW: Linscott says he had no intention of killing the drug dealer, he only wanted to rob him. BW: Isnt accomplice liability in and of itself? I mean if you take the idea that in criminal law we punish people for what they do and in lots of cases and accomplice is going to be doing a lot less than a principal, why are we punishing them equally? BW: Linscott you assist a person to commit crime A and during the commission of crime A person commits person commits crimes B and C and if B and C are reasonably foreseeable (think negligence), Mr. Accomplice you are responsible for A, B, and C. BW: The Model Penal Code does not have a probable consequences doctrine. BW: The doctrine requires a culpability of intent, so it requires less culpability than the conviction of the primary target. Facts: The defendant and some other people went to rob a coke dealer. One of the other people brought a gun, and when they busted into the place, the guy shot the coke dealer and killed him. The defendant didnt intend to kill anyone, but was found guilty of murder and robbery. The defendant appealed on the basis that the accomplice liability statute was unconstitutional because it could convict him of murder, which requires the mens rea of intent (purpose) or knowledge, just by showing he was negligent. Issue: Is the foreseeable consequence rule constitutional? Rule: The accomplice liability statute in Maine allows conviction of accomplices for crimes that were reasonably foreseeable consequences of the crime they

98 actually intended to aid. Analysis: The court doesnt see a problem with the current construction of the rule. Conclusion: The conviction is upheld. Notes and Questions 1. So to conflict under the foreseeable consequence rule, you must find: a. The primary person did the primary crime. b. The secondary person helped the primary person commit that crime. c. The primary person committed another crime. d. That other crime was a foreseeable consequence of the primary crime. 2. It doesnt matter, because someones death is arguably a reasonably foreseeable consequence of any of those encouraged acts 3. This isnt quite right. Using words to encourage someone to commit a robbery, for example, cant possibly in itself lead to murder, but the robbery that might ensue might lead to murder. 4. The Pinkerton doctrine talks about the natural and probable consequences of an agreement, rather than of a crime. The Pinkerton doctrine seems broader. 5. I think the death of one of the participants of a staged accident is reasonably foreseeable. The lawyer also encouraged it. Sure, Id say you can convict the lawyer. This doctrine seems pretty broad.

REVIEW EXAM OUTLINE Exam is 4 hours May 8th 10-2 Administered via the web It will be three or four essay questions Please, answer BWs questions, in other words remember in the class we had a rule, you cannot change the hypo, same thing on the exam People have a way of changing the question to one they can answer, that is not a good thing Please think about the question and what you are being asked to do do not dump your notes into the exam, please BW is not impressed by a listing of thing you learned that are not related to the question Exam questions are going to be putting you in a circumstance and asking you to perform a task answer this task enjoy the exam If you happen to receive a grade that you do not like If thats the worst thing that happens in your life you will have a wonderful life

REVIEW NOTES

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Robbery, grand theft auto, and murder all planned at one event that is one conspiracy but you would also have three other chargers, but only one count of conspiracy This is Braverman What are the strict liability crimes the primary crime is statutory rape, you have to look at the way the statute is drawn, if it does not have a culpability, then it might be a strict liability crime courts generally try to avoid construing statutes as strict liability crimes Can you been be charges with both a conspiracy an attempt? Yes. Mistake of fact v. Mistake of law Marrero (concealed weapon corrections officer) Cheek (tax returns not filed) Generally mistake of law is normally going to be about some of the law, Marrero (the law does not allow a mistake of fact about the law he was charged with) Depraved Heart Murder someone is being reckless Depraved Heart Murder is I Dont Give a Damn Murder An example is Russian Roulette You manifest an extreme indifference in human life You can have a reckless homicide (this is manslaughter, as long its not heat of passion) See pages 295296 This is different than driving drunk and committing homicide (which CAN be charged as reckless murder, instead of reckless homicide) Does not care about the structure of the exam answers all BW wants is an answer to his question Murder At common law 1st degree is premeditated Pennsylvania was the first state to grade homicides A lot of stuff we did in this class, was common law Most criminal law now, is statutory, a codification of the common law, but statutory Goetz A homicide that would otherwise be murder would have a reasonable explanation or excuse both a SUBJECTIVE and an OBJECTIVE element this is the MPCs reaction to heat of passion the model penal code calls this extreme emotional disturbance there has to be a reasonable explanation for the mental or emotional disturbance the reasonableness will be determined by an actor in the persons situation. that comment to the MPC is that the word situation is deliberately ambiguous Intent for complicity Generally applies as it does in statutory rape however, it might be overcome by the policy of the crime