CRIMINAL LAW OUTLINE, 2003: JONES specific intent 1.solicitation 2.attempt 3.assault 4.larceny 5.robbery 6.burglary 7.forgery 8.

embezzlement general intent 1.battery 2.rape 3.kidnapping 4.false impris. malice 1.murder 2.arson strict liability 1.statutory rape 2.liquors to minors 3.bigamy

HOW GUILT IS ESTABLISHED The Presentation of Evidence Evidence is relevant only if it is both probative and material: Probative: Only if it tends to establish the proposition (theory of who did it) for which it is offered is more likely to be true given the evidence than it would be without the evidence Material: evidence that will affect the outcome of the case under applicable law. Has some logical connection to consequential fact under substantive law People v. Zackowitz, Defendant killed a man who propositioned his wife. Rule: The state cannot make the defendants character an issue. The defendants keeping of guns at home was not evidence of a murderous disposition. (If Prejudicial effect outweighs probative value, evidence should not be admitted). Prior criminal record is admissible only if: Other Crimes Evidence RULE: Not admissible because not allowed to enter judgment of character EXCEPTIONS: Signature Exception: Evidence of past crimes is so nearly identical as to method it earmarks the accused. Must be unusual and distinctive like a signature Impeachment Exception: Allows evidence if the defendant has testified on his own behalf. His past crimes history can be introduce. Sexual Offenses Fed. Rules of Evidence 404: Evidence admissible if used for other purposes, e.g., motive, intent, plan, preconceived design, opportunity, knowledge, to ID the criminal. MPC 1.12(1) requires the prosecutor to prove every element of an offense beyond a reasonable doubt. MPC 1.13(9)(c) defines element broadly to include the absence of any excuse or justification defense. Thus, MPC places greater burden of proof on prosecutor than is constitutionally required. --If insufficient evidence, then as a matter of law, must direct verdict for D --Judges must give D the benefit of the doubt --a conviction must be reversed for error of explaining reasonable doubt to jury even if E is sufficient as a matter of law --Reasonable doubt is inherently qualitative; any attempt to quantify may lower burden of proof PROOF BEYOND A REASONABLE DOUBT

In Re Winship: RULE: due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every element of the crime. Prosecution has the burden of proof.

Patterson v. NY: (allocating burden of proof) Estranged wife begins to sleep with neighbor. sees wife in a state of semi-undress with V. shoots V.

A) duty of to prove the affirmative defense (EED) by a preponderance of the evidence. Constitutional because state still has the burden of proving each element (intent and cause) B) Mullaney v. Wilbur-Maine: due process is violated when the burden of persuasion is shifted to . Maine statute shifted the burden of proof to so that malice element was presumed based on s acts unless persuaded otherwise

Prosecution bears burden of production and persuasion. Unless has an affirmative defense. In which case, prosecution has burden of persuasion. JUSTIFICATION OF PUNISHMENT THEORIES / OBJECTIVES Utilitarian (to deter) general deterrence: discourage others specific deterrence: discourage individual Retribution (deserves to be punished) Just Deserts: like punishment for like offense(s) Eye for an Eye: Jus Talionis Repaying debt to society: Fairness Rehabilitation (reform) More a policy than a theory. Purpose to decrease recidivism Condemnation Isolation Shaming Sanctions Sex Offenders Megans Law: community protection CASE LAW

MPC 1.02: (a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests; (b) to subject to control persons whose conduct indicates that they are disposed to commit crimes; (c) to safeguard conduct that is without fault from condemnation as criminal; (d) to give fair warning of the nature of the conduct declared to constitute an offense; (e) to differentiate on reasonable grounds b/t serious and minor offenses

Regina v. Dudley & Stevens: (cannibalism to save others) s killed V while they were stranded on the high seas in a lifeboat. s claimed defense of necessity. RULE: Killing a person who is not a threat, is murder, even if the murder is committed believing it is done to save your own life. Punishment = retributive. Only justification = self-defense (See exculpation)

US v. Bergman: (Rabbis 1st crime = lesser sentence) indicted for fraudulent claims for Medicaid funds in nursing home investigation. tried to plea to decrease imposed sentence. Held: ct imposes a 4 month sentence instead of the possible 8 yr. Max b/c well-known, popular, respected, no longer young, and danger of recidivism is not a concern. Specific deterrence used (all other theories rejected)

State v. Chaney: (Military rapists lesser sentence = too lenient) received the absolute minimum sentence. Held: objective of punishment not met. RULE: ct., on appeal, can only decide if a decision was good or bad (made in error or not), but cant change the decision itself or increase the sentence

US v. Jackson: (Released robber robs life w/out parole not too harsh) was released from prison for robbery and robbed a bank that same day. Held: b/c a career criminal and possessed a weapon, life sentence acceptable b/c statute allows for a determinable of years ct. chooses 60- which is basically the same as a life sentence in (who is aged 35) US v. Johnson: (single moms lesser sentence = justified decrease) charged with fraud. Ct. decreased s sentence based on her family situation. RULE: extraordinary (as opposed to only ordinary which was contained in the statute) family circumstances may constitute grounds for decreased punishment

ACTUS REUS
The voluntary act that causes social harm. The physical component of the crime apart from the mental component(mens rea).

7 Elements of crime

1. Actus Reus- the physical act, 2 elements:

(1) voluntary act or omission to act when D had lawful duty to act. (2) social harm. 2. Mens Rea (broad) Some mental state/intent. Committed actus reas with evil mind, or a morally blameworthy mind; culpable state of mind when D chose to commit the offense. (narrow) - person commits the actus reas of an offense with the particular mental state set out by the definition of that offense. Purpose, Knowledge, Recklessness, Negligence 3. Concurrence between actus reas and mens rea. The act or result must be attributable to the culpable state of mind: Strict Liability, Mistake of Fact, Mistake of Law 4. Harmful Result - a harmful result caused both factually and proximately by Ds act. 5. Causation - connection between mens rea, act, and harm caused: link between the act and the harm 6. Punishment: Utilitarian, Retributive 7. Legality - penal code and statutes must spell out what criminal conduct is. Punishment must be proportional to the conduct ---------------------------------------------------------------------I. Actus Reusthe physical, external component of the crime, 2 elements: A. To be guilty of an offense, there must be a i. voluntary act or omission, and ii. social harm (a) result crimes (murder---death is result) (b) conduct crimes (attempt, drunk driving) (c) attendant circumstance is a fact that must be in existence at the time of the actors conduct, without which the conduct or result is not a crime (sex is not rape unless attend circ exists with a woman, not his wife, and she did not consent) Requirements of an act 1) origin in certain bodily movements) 2) circumstances (whether or not gun was loaded) 3) result MPC 1.13(9) elements of an offense: 1) Proscribed Conduct 2) Attendant Circumstances 3) Result

B.

C.

D.

Example of a voluntary act i. habitual act---cuz appropriate way to fulfill a conscious plan of action (ie to smoke)

E. Examples of involuntary acts----i. Hypnotism: no capacity or opportunity to make a reasonable choice ii. Unconsciousness Voluntary v Involuntary Acts MPC 2.01: REQUIRMENTS OF VOLUNTARY ACT; OMISSION AS BASIS OF LIABILITY; POSSESSION AS A ACT 1. A person is not guilty of an offense unless liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. 2. The following are not voluntary acts within the meaning of the Section: a. A reflex or convulsion; b. A bodily movement during unconsciousness or sleep; c. Conduct during hypnosis or resulting from hypnotic suggestion; d. A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual POSITIVE ACTIONS: Martin v State: (Def. Was incorrectly convicted of being drunk in public place) Defendant did appear in public place while seemingly drunk and used foul language. However, the word appearance in the statue presupposes that presence be voluntary. Since defendant was brought out by the arresting police officer, involuntary. Rule: Not a voluntary act if a person is brought out involuntarily against his/her will. A person cannot be punished for a crime without a voluntary act, when under the statute a voluntary appearance is presupposed and needed. Some strict liability statutes do not require a voluntary act on the surface, however, because of the moral implications of punishment, most courts will read into the language a voluntary act People v Newton (Def. Shot by police officer and went into shock and suffered reflex shock reaction) Defense claimed he was unconscious at time he shot second police officer and that this is evidence of his shooting of the police officer is involuntary. Rule: Where not self-induced, as by voluntary intoxication or equivalent, unconsciousness is a complete defense to a charge of criminal homicide: MPC 2.01 (2b) Cogdon Def. Sleep walks and ax murders daughter thinking she is being attacked by soldiers. Court says: Not guilty because act of killing, while illegal, was not held to be voluntary Rule: Although the act of killing was illegal, she was not held responsible since it was an involuntary act: MPC 2.01 (2b) CONTRAST WITH, People v Decina pg 179 Defendant was aware of his epileptic condition and could reasonably foresee that if he drove he could get into an accident, therefore he is liable. Rule: Voluntarily disregarding the possible consequences that could result of a seizure (an involuntary act). MPC2.01 (2b) OMISSIONS I. General Rule: A person is not guilty of a crime for failing to act, even if the failure permitted harm to occur to another, and even if the person could have acted at to personal risk to his own safety.

II.

Exceptions to the rule: A person has a legal duty to act, if he was physically capable of doing so, in the following circumstances:

Types of Duties 1. Statute imposed duty (some states require a person to perform certain acts) 2. Status of relationship a. spousal (includes spouses @ CL) b. parent/child c. long term committed relationships 3. Contractual duty a. Dr. has a duty to care for his patient because of a contractual relationship 4. Voluntary assumption a. one who voluntarily assumes the care of another must continue to assist if a subsequent omission would place the victim in a worse off position than if the good samaritan had not assumed care at all b. where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. 5. Creation of risk/placing imperil a. danger invites rescue; one who created a risk of harm to another must act to prevent ensuing harm 6. Hybrid****** (more than one duty, ie. Beardsley) Statues: If law imposes a duty there is a duty if statue says you do not have to act, than you do not. MPC 2.01 (3a) and (b): REQUIRMENTS OF VOLUNTARY ACT; OMISSION AS BASIS OF LIABILITY; POSSESSION AS A ACT Liability based on omission is permitted in 2 circumstances: (A) omission is expressly made sufficient by the law defining the offense (statutorily); or (a) a duty to perform the omitted act is otherwise imposed by law. Pope v. State pg 183 (no duty, statute) took mother and child into her home. fed and clothed both. witnessed mother abuse the child and did nothing to help. HELD: when she fed and clothed the two she fell within the statutory duty. However, b/c the mother was always present, one has no right to usurp the role of the mother to the extent of responsibility for the childs supervision. No duty to do so because relationship that is required by (statute) between D and victim does not exist. This rule applies even if thinks the parent is incapable. A strong moral obligation does not necessarily create a strong legal obligation. No duty to do so b/c relationship that is reqd (by statute) between and V does not exist. Good Samaritan: no law requiring aid or rescue unless by certain circumstances proscribed by law.

Jones v. U.S. p. 190 (no duty, status): charged w/ manslaughter for failure to provide for child. HELD: legal duty must be imposed by (1) statute; (2) status, i.e. mother/child/spouse; (3) K; or (4) voluntary assumption. See also People v. Beardsley p.194 (no duty, status (Profs view Hybrid- status & volunt. assump.): s conviction for manslaughter was reversed b/c owed no legal duty to woman (not his wife) who stayed over weekend and overdosed. Rule: There must be a legal duty to act, moral duty is not sufficient. Fact that she was in house created no such duty as is owed from husband to wife. People v. Oliver p.195 (duty, voluntary assumption): took drunk man from bar to her house. He used heroin. thought he just passed out and she put him behind the house. HELD: when she took him she removed him from the help of others. Thus, she assumed duty of care. Rule: Duty of care assumed when you take one out of a place where others could help them. Rule: Where one takes charge of a person unable to prevent harm to himself, legal duty is imposed.

Jones v. State p.196 (Duty, imperil): raped child who fell into creek and drowned. didnt try to help her. Ct. found a duty to rescue. R: where one creates the harm, he then has the duty to assist. Regina v. Stone & Dobinson 194: and his mistress take in s sister. Sister was very depressed and became anorexic. Mistress cared for V by bathing and generally attentive. Then they tried to get a doctor for her, but when they could not find one, they gave up on her and stopped caring for her. RULE: The status relationship of family creates a duty and voluntarily assumed duty of care. MEDICAL OMMISSIONS/MERCY KILLING Life Termination: Since Dr. has contractual relationship w/patient, he can be found liable if he fails to provide continued medical care. However, courts have generally held differently. RULE: A doctor has no duty to continue treatment once it has proved to be ineffective; there is no duty to continue its use once it has become futile in the opinion of qualified medical personnel Barber v Superior Court: (OMISSION; no duty-passive euthanasia) Doctor takes patient off life support with the permission of the family (which is immaterial), life support was providing nutrition, but was not furthering the care for the patient. RULE: Drs. have duty to provide ordinary, not extraordinary, care. Where Dr. fails to continue treatment that is ineffective to their betterment no duty. Where benefit does not outweigh burden considered extraordinary care and no duty to provide treatment. RULE: Removal of life support is not an affirmative act, it is a passive act, not illegal - because no legal duty to keep a patient alive if the furtherance of treatment has become futile. In the absence of any hope of meaningful recovery and the ability of a patient to make decisions for himself, the court held that there is no legal duty to keep the life-support machines attended. Two doctrines that may be employed to determine meaningful recovery are 1)reasonable recovery and 2) proportionality of care analysis (cost-benefit analysis---benefits gained v. burdens caused) in light of the physicians expertise but as seen through the patients eyes. (in view of the patient, treatment has at least a reasonable chance of providing benefits to the patient which outweigh the burdens attendant to the treatment = let live) In addition, the doctor must obtain the consent from the patient or when not possible from the family. arg: withdrawing life support is no different from not initiating treatment {see prob 3 and notes} Rachels - active vs passive euthanasia ---killing morally worse than letting die. Motives that matter. In passive Dr. does do something---lets patient die. Would be blameworthy if patient had a curable illness. COME BACK IN CAUSATION People v. Kevorkian (ACT; duty euthanasia) An active affirmative act is intrusive, and passive act is omission, denying something. The affirmative acts end results in causing harm. Dr. prosecuted for intentionally assisting in several persons to commit suicide. Ct distinguishes between acts that artificially sustain life & acts that artificially curtail life. must commit final overt act. Euthanasia: affirmative act causing death to avoid pain and suffering (illegal) Airedale NHS Trust v Bland (pg199) (No Duty): Whether artificial feeding and antibiotic drugs may be withheld from an intestate patient with no hope of recovery, when it is know that he will die without it? Yes, RULE: Omission of Dr. is not a breach of duty because no extraordinary care required. Curzan v. Director: Patent asked hospital to end all artificial feeding and respiration Cessation of life support permits life to run its course. RULE: Every human has a right to determine what shall be done with his own body no right to refuse treatment at common law. But need consent Transferred Intent If intended harmful result to a particular person or object and, in trying to carry out that intent, caused a similar harmful result to another person or object, her intent will be transferred from intended person or object to the one actually harmed.

MENS REA
MPC 2.02: 4 GENERAL REQUIREMENTS OF CULPABILITY: Minimum Requirements of Culpability: A person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense: One of these must be proved w/ respect to each material element of the offense (result, conduct, attendant circumstances) Purpose of Mens Rea requirement: to distinguish between inadvertent or accidental acts and acts performed by ones with a guilty mind. The latter type of act is more blameworthy and arguably can be deterred. 1. Broad: blameworthiness entailed in choosing to commit an offense (vicious mind). 2. Narrow: mental state required by the definition of an offense to accompany act (e.g. knowingly as in larceny). Purposely: acts purposely w/ respect to his conduct when it is his conscious object to engage in certain conduct or cause a certain result. Knowingly: acts knowingly w/ respect to the nature of his conduct when he is aware that his conduct is of that nature or that certain circumstances exist. He acts knowingly w/ respect to the result of his conduct when he knows that his conduct will necessarily or very likely cause such a result. Conduct performed knowingly also satisfies mental state of a statute that requires willful conduct. practically certain that a result will result from her conduct. Recklessly: acts recklessly when he consciously disregards a substantial or unjustifiable risk that circums exist or that a prohibited result will follow, and this disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation. Recklessness requires to take an unjustifiable risk and that he knows of and consciously disregards that risk. Mere realization is not enough. He must know that injury might result (if knows that it is certain to result, he acts knowingly). Recklessness involves both objective (unjustifiable risk) and subjective (awareness) elements. Negligently: acts negligently when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a substantial deviation from the std of care that a reasonable person would exercise under the circumstances. OBJ STD. must have taken a very unreasonable risk in light of the usefulness of his conduct, his knowledge of facts, and the nature and extent of harm that may be caused. NOTE: MPC vs C/L: MPC splits intentionally into purpose and knowledge. MPC draws a clear distinction between negligence and recklessness not on the degree of risk involved but on Ds knowledge of the risk. MPC is more willing to hold people for willful blindness. MPC provides that when it is not clear which element a mens rea applies to, apply it to all elements of the offense. C/L: Intentionally; Negligently; Recklessly; Malice; Willful; Knowingly: at C/L, a person commits the social harm of an offense intentionally if: 1. it was her conscious object to cause the result; or 2. she knew that it was virtually certain to occur as the result of her conduct. Note: Difference between intent and motive: intent is relevant (steal money) while motive is irrelevant (to provide for poor daughter) motive is relevant to sentencing, but irrelevant to criminal liability. But motive is relevant sometimes (eg motive to discontinue life support to inherit money) Four step MPC analysis of a statute 1. separate actus reus from the mens rea (if there is one) 2. separate actus reus into its constituent elements

3. determine what mental state is required as to each of these elements 4. analyze the facts of the case to determine whether Ds conduct falls within the statute Example: Rape Knowingly having sex with a woman, not ones wife, without her consent. 1. actus reus sex with a woman, not ones wife, without her consent. 2. constituent elements a. sex, b. with a woman, c. not ones wife, d. without her consent 3 MATERIAL ELEMENTS OF OFFENSE Conduct: The prohibited act Result: Harm caused Attendant Circumstances: surroundings that make this a crime (eg. Burglary; dwelling vs. house) Helps describe what distinguishes the crime from other crime: Eg. Murder with a deadly weapon vs. murder with a car Describe certain aspects that make the crime a crime. Modes of Culpability Conduct Purpose Knowledge Recklessness Conscious object to engage in conduct that is prohibited Aware of the Nature Conscious disregard of the substantial risk that conduct would cause as result Should be aware of a substantial risk of his conduct Material Elements Attendant circumstances Conscious of circumstances; hopes/believes they exist Simply Exist; awareness of a high probability of the existence of circumstances Conscious risk creation (Substantial and Unjustifiable); consciously disregards Does not involve state of awareness of risk; Should be aware of substantial and unjustifiable circumstances Result of the conduct (harm) Conscious object to produce the result Practically Certain that conduct will produce result Consciously Disregards that the result will occur

Negligence (objective fault)

Inadvertent: should be aware that the result will occur

MENS REA DEFENSE: Involuntary Act Duress Insanity Accident Mistake 3 KINDS OF FAULT: Subjective Fault: know or intend the consequences Objective Fault: actor reasonably should have known the consequences No Fault Strict Liability: the doing of an act itself=culpable even in the absence of any mens rea. INTENT Specific Intent crimes - acts w/ desire to commit the material elements of crime. (Specific Intent offense is one in which the definition of the crime: (1) includes an intent or purpose to do some future act, or to achieve some further consequence (i.e., a special motive for the conduct) beyond the conduct or result that constitutes the actus reus of the offense , or (2) provides that the actor must be aware of a statutory attendant circumstance. Some courts differentiate specific to mean purpose EXAMPLES: solicitation, attempt, conspiracy, 1st degree premed murder, assault, larceny, robbery, burglary, forgery, false pretenses & embezzlement

General intent crimes Only requires proof that the actor committed the act with a culpable state of mind (Rape). General awareness of a possibility of a result. Some courts differentiate general to mean (knowingly, recklessly, or negligently): Contains no express mens rea terms. Malice Crimes If one intentionally or recklessly causes the harm of the offense. Strict Liability actus reus, regardless of mens rea. (Statutory Rape) MPC does not distinguish between general and specific intent Foreseeable Natural & Probable Consequences: * English Case Regina v Cunningham (Malice def./Gas Meter): tore gas meter from wall in house; did not turn off gas; gas leaked and asphyxiated elderly woman. not guilty. Convicted of stealing $ & of "maliciously endangering another" although he only intended to rob $ & not to hurt occupant. HELD: Jury was misinstructed as to what the statute's mens rea element, maliciously meant (told that it merely required wickedness) -- must be determined that the accused either specifically wanted to cause the actual harm or that he foresaw the possibility of harm & proceeded recklessly anyway. RULE: Malice is an actual intent to do harm, 1) actual intention to do particular kind of harm that in fact was done; or 2) recklessness as whether such harm should occur or not. Jury couldn't convict on second charge w/these elements. Note: (Be ready to compare to Cunningham and Luparello under the issue of foreseeability) See also, Regina v Falkener (Presumed intent/ Ship Rum Fire) : attempted to steal rum; lit match; rum caught fire. Was burning down ship a foreseeable consequence of his act to steal rum? Probably not. An act done by a person engaged in committing a felonious act, which occurs collaterally and accidentally requires a separate mens rea to convict. Only had willful intent to steal the rum, fire was set recklessly. not guilty HELD: had no actual intention of burning ship, although had intent to steal rum. ( lacked the reqd mens rea).

Cunningham/Faulkner Rule: Culpability based on foreseeable consequences only, HOWEVER, see Luparello: where held responsible for all consequences of his actions whether foreseeable or not and also committed by others

MPC 2.03 (2(a): CAUSAL RELATIONSHIP BETWEEN CONDUCT AND RESULT; DIVERGENCE BETWEEN RESULT DESIGNED OR CONTEMPLATED AND ACTUAL RESULT OR BETWEEN PROBABLE AND ACTUAL RESULT When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless: (2a) the actual result differs from that designed or contemplated as the case may be only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; Santillanes v New Mexico (Presumed Intent): Guy cut nephew in neck while fighting. RULE: In finding criminal liability the criminal definition must be used and cannot be substituted with the civil definition. Criminal liability is greater than civil liability. When moral condemnation is attached to the conviction of a crime, the crime should reflect a mental state reflecting such contempt. Criminal Negligence = when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct The risk involves a gross deviation from the standard of care that a reasonable person would observe in the actors situation Civil Negligence = rpp would foresee unreasonable risk and in the exercise of ordinary care, not do the act

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US v. Neiswender (presumed intent based on knowledge and reasonable foreseeability): told attorney that a juror is willing to be bribed for $. held: conviction upheld on the basis that needed to only have knowledge or notice of the possible result which violated the statute. Ct. ignores s argument of his actual intent and uses natural consequences theory to find liable Holloway v. US (conditional intent {maj.} = specific intent) threatened to kill V if he didnt allow him to carjack the car. Issue: can a specific intent be found if the intent is coupled with a condition? (yes) held: jury can find that specific intent was coupled with a condition RULE: may not negate a proscribed intent by requiring the victim to comply with a condition has no right to impose See MPC 2.02(6): when a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.

MPC 2.02(d): GENERAL REQUIREMENTS OF CULABILITY: (2d) Negligentlya person acts negl. w/ respect to a material element of an offense when he should be aware of a substantial & unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature & degree that the actors failure to perceive it, considering the nature & purpose of his conduct & circumstances known to him, involves a gross deviation from the std of care that a reasonable person would observe in his situation. WILLFUL BLINDNESS: General Rule: Not a defense to knowledge (mode of culpability) U.S. v Jewell pg 220 (Willful Blindness/ weed in secrete compartment) : Guy transports marijuana in secret compartment and claims he didnt know. HELD: willful blindness is equal to knowledge. Dissent: Knowledge requires a matter of subjective belief or high probability of knowledge not merely a reckless disregard as to the possession of the drugs. RULE: If one is aware of the facts indicating a high probability of illegality, but purposefully fails to investigate and remain ignorant, he has knowledge of illegality, and positive knowledge is irrelevant. RULE: Where ignorance is proven to be solely & entirely a result of a conscious purpose to avoid learning the truth, the is held to have knowledge. Knowingly was sufficient to this court b/c aware of high probability of the existence of the weed in car. MPC 2.02(7): when knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence unless he actually believes it did not exist. U.S. v Giovannetti (No willful Blindness/ allowing gamblers to use house) : ( rented out house to gamblers); ct did not inquire into the s awareness of high probability of the illegal conduct; failure to learn of illegal conduct does not automatically constitute willful blindness; failed to display curiosity; may deliberately avoid learning truth w/o fault. Ostrich comparison. HELD: no willful blindness because did not take steps to make sure that he does not acquire full or exact knowledge. Here, he did fail to display curiosity but did nothing to prevent knowledge.

MISTAKE OF FACT/LAW
MPC 2.04: IGNORANCE OR MISTAKE 1. ignorance or mistake as to a matter of fact or law is a defense if: a. the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; OR

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b.

2.

3.

4.

the law provides that the state of mind established by such ignorance or mistake constitutes a defense. Although ignorance or mistake will otherwise afford a defense to the offense charged, the defense is not available if the would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the shall reduce the grade and degree of offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed. A belief that conduct did not legally constitute an offense is a defense when: a. the statute or other enactment defining the offense is not known to and has not been published or otherwise reasbly made available prior to conduct alleged; OR b. the acts in reasonable reliance upon an official statement of law, afterward determined to be invalid or erroneous. The defendant must prove a defense arising under Subsection (3) of this Section by a preponderance of evidence.

MISTAKE OF FACT FLECHERS FIVE ELEMENTS (interpretation of the MPC): 1. Elements of the offense i. Mistake of age 2. Justification claims i. Necessity, self defense 3. Excusing conditions i. If you claim duressthen find out that the facts dont apply to the definition 4. About negligent risk taking i. Poor judgement concerning he level of risk associated with a level of conduct 5. About extrinsic elements i. Venue, jurisdiction 3 CONSEQUENCES OF MISTAKES 1. Negate liability Negates intent with respect to an element 2. Negate culpability Excludes D from liability or reduces the offense. Mistake must be reasonable 3. No outcome on the case at all Elements extrinsic to the statute Note MPC vs. C/L: The MPC will hold defendant for a lesser offense when were the situation as he supposed it to be, his conduct constituted this lesser offense. In contrast , C/L will hold D for the higher offense As seen in 2.04 (1) General Rule: A mistake is a defense if it negates the mental state required to establish any element of the offense. At C/L: It is irrelevant whether the offense would be identified as general-intent or specific-intent at common law. Simply, either the actor had the culpable state of mind required in the definition of the offense or he did not. C/L Specific Intent: (elemental approach) where a crime requires specific intent or special intent, this means that D, in addition to desiring to bring about the actus reus, must have desired to do something further. Any honest even unreasonable belief, will negate mens re. RULE: A defendant is not guilty of a specific intent crime if her mistake of fact negates the specific intent element of the crime.

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Example of mistake of fact and SI: First, 1 takes V1s property, incorrectly believing that the property has been abandoned and, therefore, does not belong to anyone. D1 charged with larceny, a SI offense defined at CL as trespassory taking and carrying away of personal property wit of another with intent to permanently deprive the other of the property. (answer: D1s mistaken belief relates to the SI portion of the applicable offense. D1s mistaken belief that the property does not belong to anyone is relevant in determining whether he had SI to steal from V1. General Intent: (culpability approach) a crime requiring merely general intent is a crime for which it must merely be shown that D desired to commit the act which served as the actus reus. Belief must be honest and reasonable in order to negate mens rea. not guilty of GI offense if, as the result of his mistake of fact, he committed the actus reus of the offense with a morally blameless state of mind (if he acted without the mens rea in the broad sense). A reasonable mistake of fact usually is a defense if its reasonable. Significance: the general/specific intent distinction usually matters in two situations:

Intoxication: rarely negates a crime of general intent, but may sometimes negate the specific intent for a particular crime Mistake: similarly, a mistake of fact is more likely to be enough to negate the required specific intent, HOWEVER, the MPC has abandoned the general/specific distinction, and instead set forth the precise mental state required for each element of each crime. General intent Crime: (culpability approach) usually mistake of fact is not a defense to a general intent crime. RULE: mistake must be reasonable to exculpate d (no reasonableness requirement in MPC) [is this accurate???] Specific Intent Crime (elemental approach): not guilty of SI offense if his mistake of fact negates the SI required for the crime Strict liability Crime: no defense: this rule is logical. A strict liability offense is one whose definition requires no proof of mens rea; therefore, there is no element of mens rea to negate. The mistake of fact is legally irrelevant. Justification of/for S/L crimes:

Moral Wrong Doctrine: no exculpation for mistakes where, if facts had been as the actor believed them to be, s conduct would still be immoral. Regina v. Prince Legal Wrong Doctrine: no exculpation for mistakes where, if facts had been as the believed them to be, s conduct would still be illegal. guilty of crime charged even if it gave a higher penalty than the crime the believed he was committing Cf. MPC = Lesser Wrong Doctrine: imposes the lesser crime that the believed he was actually committing Statutory Rape / Moral Wrong Doctrine: Mistakes defense Regina v Prince (Statutory Rape/Moral Wrong): convicted of taking 16 yr old out of fathers possession and against his will. HELD: Guilty; D belief as to the girls age may have been reasonable, but the fact that the act of taking is wrong in itself. Rule: MORAL WRONG DOCTRINE: No person excused from blameworthiness for a reasonable mistake where if the facts had been the way he believed, it would still be an immoral act . Reasonable belief is no defense to a SL crime. White v State pg 227 (Abandon Preg Rape/Moral Wrong): man abandons pregnant wife but claims he didnt know of pregnancy. RULE: Leaving wife is in itself immoral regardless of knowledge of pregnancy MORAL WRONG DOCTRINE People v Olsen (Stat Rape Trailer trash sex): 2 men convicted of raping 13 yr old claimed thought she was 16, that is what she told them. (trailer) . RULE: Mistake of fact as to a the childs age is

13

no defense to stat. Rape. Strong public policy to protect children of tender years. HOWEVER People v Hernandez which held that Ds good faith, reasonable belief as to Vs age was a Defense to Stat rape (b/c child was not in tender years.). s conviction reversed b/c girl is so close to 18 (17 yrs. And 11mos.) so S/L loosened. RULE: good faith belief as to Vs age = acceptable defense [therefore, Olsen the more stringent exception]

Public Welfare Cases / Mistake defense: likely to impose Strict Liability b/c government wants to protect the public at all costs. Strict Liability: No mens rea necessary. Blameworthiness not an issue. Retribution theory is not relevant must protect (utilitarian interests). US v Balint (Public Welfare Crime/ selling drugs): Sold opium derivatives w/o proper forms. If statue provides pursuit of public policy, may dispense of mens rea or ignorance as a defense. US v. Dotterweich (public welfare crime) convicted of shipping mis-branded products in violation of ICC. Held: no requirement that there was an intent to ship the products mis-branded. See also Staples Morrissette v. US pg 237 (No Strict Liabilty/bomb casing): D took old Air Force bomb casing and converted them into scrap metal for sale. D believed casing had been abandoned by govt. charged w/ knowingly converting govt property The statute that is evaluated is based on a common law larceny statue RULE: If specific intent to commit larceny is required to commit larceny is required at common law, it is still required even if not mentioned by the state. Public welfare offense will be criminal if it looks like a criminal offense and it violates the common law. Therefore, specific intent required [app. Ct. held that on specific intent required b/c none expressly stated in the statute] Staples v. US: s gun was worn down and had become an automatic weapon in violation of statute. Held: knowledge required to be guilty. RULE: absent a clear statement that mens rea is not required, the public welfare offense theory of S/L should not be applied to interpret any statute defining a felony offense as dispensing w/ mens rea b/c it would increase liability of apparently innocent acts. But see Freed: conviction upheld b/c hand grenades as inherently dangerous in themselves so distinguished from Staples. State v. Guminga, D, a bar owner, was not present when an employee sold alcohol to an underage person. Rule: There cannot be vicarious liability for a strict liability offense. She cannot be convicted of a crime punishable by imprisonment for an act she did not commit, did not have knowledge of, or give expressed or implied consent to its commission. Mistake must negate state of mind. Mistake must be reasonable; Any mistake, reasonable or unreasonable is a defense to specific intent crimes. For general intent crimes, mistake should be reasonable. Strict Liability Crimes: No defense

MISTAKE OF LAW
One, having knowledge of the facts comes to an erroneous conclusion as to their legal effect. (mistake as to a legal conclusion) A. Justifications for the rule: 1. Law is definite and clear 2. Promotion of education of the law: utilitarian argument for the rule suggested by Holmes: society wants people to educate themselves regarding the laws of the state so that they will obey them. Thus, the law must apply SL principles as to knowledge of the law. 3. Concern about fraud: if we allow a defense of MOL, it would invite fraud. Every D would assert ignorance or mistake.

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4.

other side: A retributivist would argue that unless a person chooses to do wrong, he should not be punished; if a person does not knowingly commit a wrong, society has no basis for exacting retribution.

C/L RULE: Mistake of law is no defense. (Typically no mens rea capable of being negated by an actors ignorance or mistake of law) C/L EXCEPTIONS: 1. Reasonable Reliance-- cannot be exculpated due to his own erroneous interpretation of law. People v Marrero, Def. Exculpated if at the time of the offense, she reasonably relied on an official statement of the law, later determined to be erroneous, obtained from a persona or public body with the responsibility for the interpretation, administration, or enforcement of that law US v Albertini (consistent with MPC). Advice of private counsel do not fall in this spectrum Hopkins v State 2. Fair NoticePublication of law is necessary in order to know the law. Failure of such is a defense under mistake of law. Lambert v. Cali: city ordinance that requires convicted persons to register with police violates Due Process Clause when it is applied to a person who had no actual knowledge of her duty to register. 3. The Ignorance negates mens rea (different law mistake)only works w/ specific intent crimes. Does not negate general intent even if reasonable. The ignorance of specific intent crime does not have to be reasonable. HOWEVER, MPC exculpates negation regardless of specific/general intent distinction. (MPC does not distinguish between specific & general intent). MPC: in general, not a defense, but can be if the statutes mens rea is acknowledged with respect to mistake of law under 2.04 (1) (remember mistake is combined under MPC) MPC 2.04 (3a, 3b) MPC [See Albertini (exception)] However, MPC basically accepts some CL exceptions under MPC 2.04 (3a&b). People v Marrero (mistake of law/peace officer w/gun at club): believed he was a peace officer under the law and could carry guns legally. RULE: Mistake of law is no defense even if reasonable and in good faith. Ignorance is no defense. Personal interpretation is not an excuse. MPC 2.04 (3) In this case, liability for weapons possession is imposed regardless of s intent, so mistake of law is no defense. (LEGAL ELEMENT is a non-observable element that requires research outside of the statute. HOWEVER, People v Weiss: mistake of law is defense b/c s lacked intent to kidnap V. A good-faith belief in the legality of the conduct would negate an express & necessary element of the crime of kidnapping, i.e. intent to confine or imprison another. Such belief would show lacked intent to confine V, as statute required. Regina v Smith pg 261 (mistake of law) D tore up floor board to remove some wiring he had installed. Thought that floorboards were his. Honest belief is a defense when the statue requires knowledge. RULE: Mistake was of the attendant circumstances not the law. Statue requires knowledge of the attendant circumstance. Cheek v US pg 263 (Mistake of Law defense) D did not file taxes b/c a group told him that it was unconstitutional. Govt must show that D knowingly evaded taxes. RULE: Any person who willfully attempts to evade or defeat the requirements to pay tax on his income, shall be guilty of a felony, where it can be shown that he knows and understands the law State v Wood (wife thought husband was divorced and remarried) - went to Nevada with a married man. He divorced wife & married her; when they returned to Vermont, they were prosecuted under Blanket Act for having affair, b/c Vermont did not recognize divorce decree. Held: guilty b/c mistake was characterized as mistake of law. Ratzlaf v United States pg 267 (Ignorance Negates Mens Rea/ gambler breaking up money) Gambler structures transaction in order to pay off debt by splitting up money in three ways. It was a violation of federal law to structure a transaction in order to avoid a reporting req. Statue subjected crim.

15

penalties for willfully violating the statue. HELD: Def. Structuring did not constitute a criminal offense and willful requirement not met. US v Albertini (Mistake of law defense/ Exception 1): Def. Relied on court ruling to allow him to picket. Decision was later overturned. Convictions cannot be retroactive. RULE: Actions done before the passing of the law is not subject to the new law. It was innocent when done. Reasonable reliance on judicial opinion is legal MPC 2.04 (3b) HELD: exception to mistake of law b/c mistake of law was a result of s reasonable reliance upon an official statement of law; Later convictions revd. Hopkins v State (Mistake of Law not Exception1/ Dirty Marriage) convicted of violating statute which prohibited erecting any sign which solicited for performing marriages. tried to introduce evidence that states attorney advised him that he was not violating statute. HELD: Even though followed advice of attorney, attorney not official source of law; therefore, it is not an excuse for a person who violates the law to use dependence upon an attorney as a defense. MPC 2.04 (3b) Lambert v California: D did not register with the LAPD in violation of the registration law for felons. When a duty is not known, and there is no probability of knowledge, due process is violated. Due process requires knowledge so that the person had a chance to defend against charges. HELD: If based on an omission status of defendants excuse for an act which is not inherently bad, but only is because it is prohibited. Violates Due Process Clause to convict in the absence of actual knowledge of duty to register or proof of the probability of such knowledge (D had no notice of duty to register). Due Process is probably not violated unless three factors exist: 1) unknown act punishes an omission (failure to register) 2) the duty to act must be based on a status condition rather than an activity (presence in L.A.), 3) the offense is malum prohibitum in nature. RULE: Mistake of law is a valid defense under special circumstances if the actor is unaware of published law. MPC 2.04 (3a) Morissette v. U.S.: entered an Air Force bombing area and took old, rusty bomb casings. s conviction reversed. Held: cannot be criminally responsible on a strict liability basis for a codified crime which at C/L required proof of intent; therefore, proof of mens rea is reqd. If specific intent (to commit larceny) was required at common law, it is still required even if not mentioned in the statute. Not a public welfare offense, it is a true crime and true crimes require mens rea. He had no mens rea as to who owns it. To be guilty of larceny he must know they belonged to someone else (he has to really intend to steal them). Morisette was ok to steal spent shell casings cuz he thought they were his (MOL) RULE: If statute makes no mention of a mens rea requirement, strict liability cannot be assumed. Knowingly vs. Willfully standards for mistake of Law (whats the more appropriate std. When a statute requires Knowingly or willfully?] Possible interpretations:

a) b) c)

knew of the existence and meaning of the regulation that their actions violated (see international minerals = knowingly) was aware of doing the actions that violated the regulations and did them anyway (see Liparota = willfully)

HOWEVER, see Ratzlaf [both stds. Applied]: deposited 100,000 in 10,000 increments. Convicted under statute that makes it illegal to structure a transaction (i.e. by breaking it up). The state argued that act itself so corrupt that willfulness requirement satisfied even if was unaware of the statute. Held: ct. reversed stating that prosecution had to prove both stds. (see above). d) Rationale for favoring #2 interpretation: using #1 interpretation may criminalize a broad range of apparently innocent conduct. Summary of Mistake of Law A. Same Law Mistake 1. C/L and MPC: D is not guilty if he believed that the criminal law did not apply to his conduct, based on an official, erroneous interpretation of the law. Albertini, 2.04(3)(b)

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Three defenses: 1) MOL negates mens rea element of crime charged (Cheek), 2) authorized reliance (Cox), 3) Due Process Clause (Lambert) B. Different Law Mistake 1. A D may claim that he should be excused because of a mistake on his part regarding the meaning of a different law (a law other than the one he is being prosecuted) 2. At C/L, a different law mistake: a) Is a defense if it negates the specific intent element of the offense b) Is not a defense in the prosecution of a general-intent offense, regardless of whether the mistake was reasonable or unreasonable.

Under the MPC, a MOL is an excuse if it negates an element of the criminal offense. The specific intent/general intent distinction is irrelevant. STATUTORY RAPE (make sure to look under Mistake of Fact)

C/L: Strict Liability Crime C/L: there is no such thing as attempted statutory rape because you need specific intent for each element of the crime and you dont need to prove intent in SL. MPC: Crime of carnal knowledge of a female under age of consent. Even if female willingly participated, the offense is nevertheless committed b/c consent is irrelevant. MPC, whatever mens rea towards attendant circumstances is required by the target crime will also be required for an attempt; therefore, under MPC you can be convicted of attempted statutory rape b/c no mens rea reqd for a strict liability crime. Mistake as to Age: s reasonable mistake as to age does not prevent liability. HOWEVER, may be argued that a reasonable mistake as to age may prevent conviction if reasonably believed V was old enough to give an effective consent.

RAPE I. FORCIBLE RAPE A. B. Key Elements In a typical rape statute, the prosecution must prove the defendant used force or threat of force; that the victim did not consent. The key elements: Force / Threat of Force How Much Force To determine how much force, or its threat, is required to convert the offense to forcible rape, the common law has developed a resistance requirement. 1. Hazel To justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety. Rusk (Dissent): Essentially, the female must resist the rapist to the utmost, or until exhausted or overpowered. Thus, the rape is not forcible unless the male uses force sufficient to overcome this resistance. If she does not resist, the prosecution must show that she was prevented from resisting by a threat of substantial force, such as a threat of death or serious bodily harm. Majority says if the victims fear is reasonable, then she does not have to resist.

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Note: discuss physical weight, height, age for issue of whether she should be required to use utmost resistance. Courts consider strength, age, mental/physical condition, and nature of force. Criticism of Rule: The resistance requirement forces the female to escalate the dangers to herself. Also, it assumes that verbal resistance - saying no - is not enough. Its wrong to forgive the male because victim failed to protect herself. Modern Law: Many states retain the resistance requirement, although a few states have expressly abolished the rule. States that retain it usually only require reasonable resistance, not to the utmost. Modern Trend: Some courts have begun to rethink the subject of force, and hold that the force inherent in the sexual act itself is sufficient. Any penetration done without the voluntary consent of the victim to the specific act of penetration is rape. Thus, force = nonconsent. The offense is proved unless the female, by words or conduct, permits the intercourse. That is, the females subjective consent is insufficient; it is rape unless she gives permission for intercourse. (M.T.S.) Berkowitz Where there is lack of consent, but no showing of physical force or threat of physical force, or psychological coercion, the forcible compulsion requirement is not met. (college dorm girl said no but guy only used weight on top of her) Thompson, Principal threatens non-graduation. Rule: Intimidation, fear or apprehension is not force. Mlinarich If threat of force does not involve physical violence, it is not considered sufficient to satisfy the force requirement. (threat to send back to juvi not enough) Alston, D and victim were involved in a violent relationship, she left, he found her and had sex, she remained silent during the act. Rule: D not guilty, general fear of D even if justified by his prior conduct is insufficient to establish force. Estrich says this notion ensures the broad male freedom to seduce women who feel themselves to be powerless. The force requirement is not needed if the victim is: 1) below a given age, 2) mentally incompetent, 3) unconscious, or 4) deceived by D impersonating her husband II. FORCIBLE RAPE - Mens Rea D claims mistake as to Victims consent A. Since Rape is a general intent offense, the majority view is that a person is not guilty of rape if, at the time of intercourse, the D entertained a reasonable belief that the female was voluntarily consenting. Minority Rules:

B.

Regina v. Morgan, RAF rape mans wife believing she is consenting Rule: The English House of Lords has ruled that an honest belief even if unreasonable may be a defense to rape if the belief is truly held (MOF). Rape requires proof of intent (or at least recklessness), and that this element modifies all the actus reus elements of rape, including the element of non-consent. In essence, the House of Lords converted rape to a specific intent offense. Sherry, The more popular view is that a defendants subjective belief that the victim consented is not a defense to rape. Mistake of fact as to victims consent is not a defense to rape. Thus, negligence as to non-consent is sufficient to convict. The issue of her consent is strict liability.

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(Court knew she clearly was refusing sex, thus, a reasonable or unreasonable MOF is not a defense, ---3 doctors raped nurse, requested a jury instruction that the jury had to find they had actual knowledge of the victims lack of consent request rejected) Commonwealth v. Ascolillo, On the other end of the spectrum, a few states provide that even a defendants reasonable MOF is not a defense. This rule is of questionable validity, as it converts forcible rape into a SL offense. --what constitutes a reasonable mistake? (gender gap). Womens fear of seeming promiscuous Hernandez, a good faith, reasonable belief that the victim is over 18 is a defense to a charge of statutory rape. MPC 213.1 has taken focus off victims lack of consent and placed it on Ds use of force, and differentiates between degrees of force. Guilty of Rape if male has sexual intercourse w/female not his wife, and compels her to submit by force or threat of imminent death, serious injury, extreme pain, or kidnapping to be inflicted on anyone. 213.1(1)(a) 1. substantially impaired her power to appraise control of her conduct by administering drugs without her knowledge for purpose of preventing resistance, 2. female is unconscious, or 3. female is less than 10 MPC 213.1(2) permits conviction for gross sexual imposition where there is threat of force or any threat that would prevent resistance by an ordinary woman. NONFORCIBLE RAPE - Issue of Victims Consent A. Statutory Rape: All states provide that intercourse by a male with an underage female constitutes rape. Neither force nor the underage females lack of consent is an element of the offense. 1. Non-consent: The rationale of statutory rape laws is that an underage female is too young to validly consent. The age of consent varies by jurisdiction. 2. MOF regarding age: Most jurisdictions provide that statutory rape is a SL offense. Thus, the D is guilty of the offense, even if he reasonably believed that the victim was old enough to consent. Rape by Fraud 1. Fraud In The Inducement: (she knows she is engaging in the sexual intercourse) At common law, a seducer is not a rapist. A man is not guilty of rape if he fraudulently induces the female to consent to intercourse with him. D induces V to have sex, by falsely claiming it will cure her of a serious illness. (Boro) Victim consented, was aware of the nature of the act. This is Not Rape. Deception: Evans: sociology experiment, D seduced victim with sob story. No sufficient threat of force. Not guilty, seduction not rape, no direct threat or physical force I could kill you---Ds intent measured by his meaning of words, not meaning V construes. 2. Fraud In The Factum: (she does not know she is engaging in sexual intercourse) Consent to engage in sex is invalid if, as a result of fraud, the victim is unaware that she has consented to an act of sexual intercourse. D is guilty of rape. (V agrees for physician to insert an instrument)

B.

*the fraudulent obtaining of sex by impersonating a spouse can be viewed as fraud in the factum (and thus rape) or fraud in the inducement (where she consented to sex)

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3.

The Marital Exemption: is still around in about 40 states, under the rationale that wife gives matrimonial consent, and we need to protect marriage against government intrusion into privacy. Marital exemption does not apply to legally separated couples (Liberta), but informal separations are trickier.

MPC 213.1 retains marital exemption: not his wife Liberta,(NY) D took estranged wife to motel, had a restraining order. Rule: Ct strikes marital exemption and the gender exemption from the Penal law. This follows trend of limiting marital exemption. The court finds fault with the 5 defenses of marital exemption: 1) implied consent, 2) property, 3) not in states interest to interfere with the marriage, 4) marital rape would be difficult to prove, 5) marital rape not as serious as other rapes. (studies show harm is more serious in marital rapes) At common law rape occurs when a defendant engages in sexual intercourse w/ a woman against the will of the victim AND under force or threat of force (Blackstone - carnal knowledge of a women forcibly against her will). Nonconsensual intercourse is not generally criminal unless accompanied by force, threat of force, forcible compulsion. Some exceptions are 1)statutory rape 2) unconscious 3)deception (as when someone pretends to be a husband). In some jurisdictions, non-consent alone is enough but most have force factor. Resistance is either included in the formal statutory elements or is implied as elems of force or non consent. Old requirement was utmost resistance. Now just reasonable or earnest resistance. Mens Rea-comes up when man says woman consented -Regina v. Morgan : Rule: An honest but unreasonable mistake of consent is a valid defense. It is strictly a SUBJECTIVE test. No courts follow this approach today. -Commonwealth v. Sherry consent is a defense only when perps mistake is genuine and reasonable must negate mens rea - AN OBJECTIVE Std. Acteus Reus State v. Rusk: 1)vaginal intercourse 2) by force or threat of force 3) against the will (and) without consent. Lack of consent=proof of resistance. If she was fearful & did not resist, the fear may be reasonably grounded. Force is established if resistance or reasonable fear which=resistnce a) fear of death or serious body harm, b) fear so extreme to preclude resistance c) fear that could render the mind incapable of resistance d) fear so overpowering that dont dare resist (Hazel std intro frozen fright). any consent obtained under these circums is ineffective and the victim is n/ reqd to engage in utmost resistance. CONTRAST People v Warren Girl riding bike dragged to woods, 5.2 100lb to 6.3 185lb. failure to resist will exculpate def. Testimony of reasonable fear n/ enough. Despite circumstances indicating that it was not wise to resist, plaintiff was required to do so since resistance is an element of the crime. No resistance gives impression of consent. State v. Interest of MTS Sexual assault statute req physical force. Ct finds any act of sexual penetration engaged in by defendant w/o affirmative & freely given permission of the victim to specific act of penetration is sexual assault. Also, physical force is satisfied when df applies any amt of force against another person in the absence of affirmative and freely given permission to the act of sex penetration, the act itself is the force. Jury may decide whether df act was done under circums that led df reasonably 2 believe victim freely gave aff permission to specific act. Silence is not consent. State v. Thompson no sex no graduation. Ct held no rape, inducement must be based on a threat of physical force People v Berkowitz lack of consent alone without force is not forcible rape-only indecent assault.

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MPC 213.1: (1)A male who has sexual intercourse w/ a female not his wife is guilty of rape if: (a) he compels her to submit by force or by threat of imminent death, serious bod inj, extr pain or kidnapping, 2 b inflicted on anyone; or (b) he has substantially impaired her power 2 appraise or control her conduct by administrating or employing w/o her knowledge drugs, intox or other means for the purpose of preventing resistance; or (c the female is unconscious (d)female is less than 10 yrs old Some cts hold no marital exception (MPC still has). See People v Liberta. (H&W had been separated, H raped her in front of child - eliminating statutory exemption as violating equal prot). Those that keep it have sometimes restricted it by not allowing the exemption if couple is separated, living apt, or woman acts in any way 2 indicate the marriage is over.

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HOMICIDE
MPC 210.1: CRIMINAL HOMICIDE: a. A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being. b. Criminal homicide is murder, manslaughter or negligent homicide MURDER COMMON LAW MURDER RULE: the unlawful killing of a human being by another human being with malice aforethought. (express or implied.) MPC Murder (MPC 210.2) criminal homicide constitutes murder when a person is guilty of criminal homicide if he purposely, knowingly, or recklessly causes death of another human being under circumstances manifesting extreme indifference to the value of human life. NOTE: MPC DOES NOT SEPARATE MURDER INTO DEGREES/NEITHER DOES C/L 4 Types of Murder

Intent to kill murder: malice aforethought presumed on the basis of intent Intent to commit grievous bodily injury murder

[1st degree] [2nd degree] [2nd

Depraved Heart (aka reckless indifference to the value of human life) murder degree]

Felony-Murder: a killing occurring during the course of a felony, malice imputed From the commission of the felony [1st/2nd degree] C/L 1st Degree : (1) willful (intentional); (2) premeditated ( actually reflected on the idea of killing, if only for a brief period of time); (3) deliberate ( made decision to kill in a cool & dispassionate manner); (4) w/ expressed malice aforethought. (i.e. poison, lying in wait) Intent to kill murder: an intentional killing that is unjustifiable(self-defense), inexcusable(insanity), and unmitigated(heat of passion). Guilty of C/L murder since killing w/ malice aforethought. NOTE: Malice aforethought is expressed through premeditation and deliberation Malice Aforethought: A person acts with malice if they unjustifiably and in the absence of any mitigating circumstances, kills another w/any of the following mental states: 1. Intent to kill (1st degree only) a. Actor is presumed to intend the natural consequences of the act. b. Done with deadly weapon (ie[object] which in the manner it is used or intended to be used is known to be capable of producing death or serious bodily injury.) 2. Intent to do serious bodily injury (1st and 2nd degree) (i.e. injury which creates a substantial risk of death or which casuses serious. Permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ) a. Foreseeability 3. Extreme disregard for human life (1st and 2nd degree) disregard for human life a. Risk taking dangerous use of dynamite, car operation etc. b. Foreseeable death if conduct continues 4. Felony murder (1st degree): intent to commit a. Person engages in a felony and a death results

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b. Intent to kill is imputed from the act

C/L 2nd Degree Murder

1. willful (intentional) killing 2. with implied malice aforethought (intent to inflict grievous bodily injury or an extremely 3.
indifference to value of life (depraved heart murder); without premed & delib.; Intent to inflict grievous bodily injury killing, reckless killings & deaths that occur in commission of felonies not listed in 1st degree section of murder statute.

NOTE: Malice Aforethought is implied because there is no premeditation deliberation Intent to do serious bodily harm: a person acts w/ malice aforethought if he intends to inflict grievous bodily injury on another. Usually is 2nd degree murder. Depraved heart murder: extreme indifference to the value of human life implies malice; usually 2nd degree. see Commonwealth v Malone and US v Felmming MPC 210.2(b): criminal homicide constitutes murder when it is committed recklessly under circums manifesting extreme indifference to value of human life. Recklessly: conscious disregard of a substantial & unjustifiable risk that the material element exists or w/ result from conduct. Gross deviation from standard of conduct that a law abiding person would observe in actors situation. 1st Degree Murder: (Premeditation-Deliberation Formula) 1st degree Premeditation: Cool reflection needed prior to the killing Deliberation: Calculation some consideration on how the crime will be accomplished

Commonwealth v Carroll (p/d formed in an instant) : murders wife whos crazy. takes gun from head of bed. Claims no premeditation. Statute requires deliberate and premeditated killing. D says that because an escape plan is not feasible given the atten circums, does not negate premed. Intent may be inferred from the intl use of a deadly weapon on a vital part of anothers body. HELD: D guilty b/c specific intent: remembered the gun deliberately took it down and deliberately fired two shots: 1st degree murder. RULE: (1) Time is irrelevant when it comes to premeditation if intl, willful, and deliberate. Intent can be formed in an instant, Specific intent to kill may be found from words, conduct or attendant circumstances (use of deadly weapon), together with all reasonable inferences drawn there from. (2) The fact that an escape plan is not feasible given the atten circums, does not negate premed. Intent may be inferred from the intl use of a deadly weapon on a vital part of anothers body.

CONTRAST, State v Guthrie (p/d not formed in instant): D had a psychotic obsession with his nose; Dishwasher was slapping towels V hit D in his nose; D removed a knife from his pocket and stabbed V in the neck and killed him. HELD: s 1st degree conviction reversed on the grounds that RULE: although no elaborate scheme is required, there must be an opportunity for some reflection/cooling time on the intention to kill after it is formed- evidence of Ds consideration and weighing of decision necessary for murder 1. People v Andersen (3 prong test): Drunk kills girlfriends 10 yr old daughter. Stabbed 60 times before and after she was dead. D Argues no premed and delib. HELD not guilty of 1st, but 2nd.RULE: 1. Planninglook at actions prior to killing; (No planning, D was drinking all day 2. Motiverelationship of to V to infer motive; and (No motive) 3. Manner of killingto support inference of preconceived design. (Erratic stabbing, before and after death). Evidence of 1, 2 and 3 = 1st degree; strong evidence of only 1 = 1st degree; 2+1 or 2+3= 1st degree.

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2nd Degree Murder Types of 2nd degree murders

Intent to do serious bodily harm: a person acts with malice aforethought if he intends to inflict grievous bodily injury on another

Subjective std: most states apply a subjective standard as to the risk of serious bodily harm -- has the requisite mental state only if he actually realized that there was a high probability of serious harm (not necessarily death) to V, and the fact that a reasonable person would have realized the danger is not sufficient.

Def. of serious bodily injury: most cts. Hold that only conduct that is likely to be life-threatening suffices for intent to commit serious bodily injury. MPC: rejects this notion of murder, uses recklessness std. / depraved heart std. Depraved heart murder: extreme indifference to the value of human life implies malice; nearly all states hold liable if he causes a death, while acting with such great recklessness that he can be said to have a depraved heart or an extreme indifference to the value of human life. MPC: follows the subjective approach to this problem: i.e. shows the required extreme recklessness only if he consciously disregards a substantial and unjustifiable risk. [see MPC 210.2(b)] ** A person whose conduct manifests an extreme indifference to the value of human life one who acts in an extremely reckless fashion, or with a depraved heart acts with malice aforethought. ** An actors conduct is extremely reckless if she consciously takes a substantial and unjustifiable foreseeable risk of causing human death. A person who appreciates the high degree of unjustifiable risk inherent in her conduct but who proceeds anyway, manifests thereby an extreme indifference to the value of human life. In such circumstances, the common law implies malice. States with degrees; depraved heart and extreme recklessness would ordinarily be 2nd degree. Note: This shows the line between Commonwealth v. Malone (Russian Poker) boy shoots friend playing Russian poker. Does not spin barrel RULE: when person acts w/ gross recklessness for which he must reasbly anticipate death to another is a likely result, acted w/ malice (malice is not necessarily malevolent to the V particularly, but any evil design in general; the dictate of a wicked, depraved and malignant heart) US v Fleming: drunk guy driving recklessly on wrong side of road lost control, collided w/ another car. HELD Court held that it was not the fact that he was drunk, but the fact alone that he was driving with recklessness with disregard of life. Not necessary that every drunk driver is driving reckless . RULE: Malice must be established by evidence of conduct which is reckless & wanton & gross deviation from a reasble std of care; inference that was aware of serious risk of death or serious bodily harm. Parrish v State (pg 430 husband chases wife and wife killed in crash) D persued his wife in his car wife in an attempt to escape husband wife drove recklessly , crashed and died. HELD D was convicted of 2nd degree murder RULE: Since D evidencing a depraved mind regardless of human life. NOTE; Murder by Vehicle: A majority of courts hold that extreme carelessness in the operation of an automobile can support a conviction for murder, usually on the theory that the defendant had an actual awareness of harm. Judges are divided as to what constitutes extreme carelessness. Dissent in Watson said death is not probable result of DWI. Thousands drive drunk every week without accident. However, in Watson the jury found the defendant must have known that he would have to drive his car after drinking because he drove to

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the get to the bar. It was also assumed that the defendant knew the dangers of drunk driving. He was found guilty of murder COMPARISONS MURDER V. MANSLAUGHTER

Murder: WITH malice aforethought Manslaughter: WITHOUT malice aforethought

Diff bwtn murder & mans 1. recklessness is extreme in murder (the degree of risk taking is more substantial & less justifiable than in mans). 2. If just recklessness is used to describe murder, then crim negl would be used to describe mans. 3. C/L murder is killing with malice aforethought. 4. C/L mans is killing without malice aforethought. Intentional Killings can constitute either Murder or Manslaughter. MANSLAUGHTER C/L Manslaughter: an unlawful killing of a human being by another human being without malice Voluntary Manslaughter: an intentional, unjustified, inexcusable killing, which is ordinarily murder, constitutes voluntary manslaughter if it is committed in sudden heat of passion, as a result of adequate provocation.

Involuntary Manslaughter: killing caused by criminal negligence (gross negligence)

Factors to differentiate between Involuntary Manslaughter and Voluntary Manslaughter

a. c.

Magnitude of the risk (Welansky) (Malone) b. Presence or absence of justification of social utility i.e. excuse s awareness of risk (Fleming)

Mitigation of 2nd degree murder to Voluntary Manslaughter [can work the opposite way to increase the degree as well]

a.

C/L = Provocation If provocationvoluntary manslaughter, if no sufficient provocation2nd degree murder (also possibly 1st degree if with malice, premed. And/or delib.)

MPC = EED (extreme emotional distress) If EEDvoluntary manslaughter, if no sufficient EED(2nd)degree murder (also possible (1st) degree murder based on requisite mens rea) Note: No Degrees of Murder under the MPC MPC 210.3 Manslaughter (1) Crim hom constitutes manslaughter when: (a) it is committed recklessly; or (b) a hom which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actors situation under the circum as he believes them to be, (2) manslaughter is a felony in the second degree Voluntary Manslaughter: ***Thesis Sentence: To be able to use provocation, one must prove that the provocation was sufficiently strong that it aroused some high passion and that their was no cooling off time.

b.

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C/Lcommitted in sudden heat of passion as result of adequate provocation. Under common law an intentional homicide committed in sudden heat of passion as the result of adequate provocation mitigates the offense to voluntary manslaughter. Elements of Adequate Provocation: 1. provocation must have been one that would arouse sudden and intense passion in mind of an ordinary person. 2. must have in fact been provoked. 3. There must not have been a sufficient time between provocation and killing for the passions of a reasonable person to cool. 4. in fact did not cool off between provocation and killing. Adequate Provocation: 1. assault & battery 2. mutual combat 3. commission of serious crime against close relative 4. illegal arrest 5. observation by husband of wife committing adultery (must be observed in the act Denis v State and not learned through a third party Maher v People 6. modern courts include homosexual advances Nature of Provocation:

1. Objective: legally sufficient (above list) 2. Subjective: D must have been provoked in his situation
THE RULE OF PROVOCATION: 1. There must have been adequate provocation; 2. The killing must have been in the heat of passion; 3. It must have been a sudden heat of passion that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool; and 4. There must have been a causal connection b/w the provocation, the passion, and the fatal act. *Words alone can never be provocation. *Words must be accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm. *Defenses to Provocation: (1) Passion serves to mitigate the punishment b/c the actor is so dethroned of reason that he either cannot premeditate or form the specific intent to kill; passion negates the required mens rea of murder. (2) Implies the blameworthiness of the actor is reduced b/c the killing is largely involuntary; the killing is sudden. (3) It represents a concession to human weakness; killing, although perhaps voluntary does not stem for a bad or corrupt heart, but from infirmity of passion to which even good men are subject. Words Alone: (adequate provocation?) - C/L in majority of states words alone do not constitute adequate provocation. Few courts allow this defense to be used in informational circumstances, but not insulting words. Other courts have held open the possibility that insulting words may qualify in extreme circumstances. Words alone are not enough under MPC, see:

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Girouard v State (Words Inadequate Provocation) (Lousy Fuck) Wife made fun of husbands sexual ability, falsely claimed to have to have filed charges against him during an argument so he killed her. RULE: Words alone do not provide sufficient provocation to mitigate murder to manslaughter, and to inflame the passion of a reasonable man. The provocation must have been such that it might inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than judgment. CONTRAST WITH,

o Maher v People (Words Adequate Provocation) D watched wife and victim walk into
woods and friend told them that they had went there to have sex RULE: Words do provide sufficient provocation learning about wifes infidelity w/o viewing may be sufficient evidence of provocation.

Cooling Time: under C/L a long lapse of time between provocation & act of killing will render
provocation inadequate as a matter of law. Cooling time negates provocation defense. Must have instant incitement (obj std) see:

o US v. Bordeaux (pg 413 Cooling Time) learned that V raped s mother 20 yrs ago.
& friends beat up V. returned later and slashed Vs throat. Held: convicted of murder, not mans b/c was not in a heat of passion. RULE: provocaton can occur on instant incitement. Where period between provocation act & killing is of considerable length no provocation. If had enough time to cool off, absent rekindling no provocation. CONTRAST WITH

o Maher v People (pg 407 No Cooling time) D watched wife and victim walk into woods and
friend told them that they had went there to have sex Applying subj test for cooling time, tried to kill man he had been told had had sex w/ s wife. Held: seeing wife and man go into woods, and being told that wife had sex w/ man earlier in the day is sufficient evidence to go to jury on issue of provocation

o People v Berry (pg 413 Sub. Test No Cooling Time) , provoked, waited for V in her apt
for 20 hrs before killing her. HELD: ct found smoldering the wait served to aggravated rather than cool the defendant. Applying the subjective test for cooling time RULE: Passage of time could make the D smolder and not cool down PROVOCATION a) At Common Law, what constituted Adequate Provocation was determined by the judge as a matter of law. b) Modern trend is to allow the jury to decide what provocation would lead an ordinary person liable to act rashly. (Maher) RekindlingTheory: some courts may hold even if there is sufficient cooling time rekindling may be adequate provocation defense. Many courts have rejected this theory

o State v Gounagias (pg 413 No Rekindling Theory): ct did not allow rekindling theory for
who had been sodomized weeks before but argued passion rekindled when sodomizer told everyone and they teased and taunted him. RULE: Court did not allow rekindling theory. See also People v. Berry , provoked, waited for V in her apt for 20 hrs before killing her. Held: entitled to mans jury instructions, b/c although had sufficient cooling time, the passage of time may have served as aggravation (rekindling) rather than actually cooling down .

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 Provocation as a defense for the killing of a Third Party: Whether a person may raise a
provocation defense for killing a person who was not the provoker depends on the courts view of provocation. The court looks at partial excuse and partial justification 1. Partial Justification: Provoked by another and justified in responding. who kills a non provoker will not be entitled to provocation defense b/c non provoker (i.e. 3rd party) did not partially deserve to die Rex v. Scriva - father observed driver knock down & severely injure his daughter. He went after the driver & when a bystander intervened, he stabbed him. Ct held no provocation by victim, which was a partial justification approach, victim was not culpable so not allowed provocation def.

People v. Spurlin - man kills wife after learning of sexual escapades and then kills son. Ct did not allow provocation against son, the innocent party-partial justification approach.

Note: Both above cases held that no provocation defense was available with respect to the charges of murdering the no provoking relatives or bystander. Manslaughter Justification: requires that the victim provoke the killer. Manslaughter Excuse: emotional state and timing = excuse. 2. Partial Excuse: may get off because act is wrong but excusable under the circums. Provoked and retaliates in heat of passion. Excuse is not premised on the idea that victim is at fault. However State v. Mauricio(bouncer case) man killed someone else by mistake, thinking he was the bouncer HELD: allowed provocation defense when man in attempt to kill a bouncer who had beaten him up, killed wrong person. Defendant who Elicits Provocation:

Regina v Johnson: D made threatening and insulting remarks to V provoked V who attacked D, D then pulled out knife and killed V. Trial court held: D who excites provocation cannot in turn rely on provocation as a defense, but RULE: Does not matter if D illicit provocation, if as long as D is provoked EXTREME EMOTIONAL DISTURBANCE: a person who would be guilty of murder because she purposely or knowingly took human life, or b/c she killed someone recklessly under circumstances manifesting an extreme indifference to the value of human life is guilty of the lesser offense of manslaughter if she killed victim while suffering from EED. Note: EED is much broader than C/L provocation defense. MPC 210.3(1)(b) - a person may raise the affirmative defense of EED, which will reduce the offense to manslaughter, if there is a reasonable explanation of excuse for the disturbance that led to the killing. However, that reasonableness is determined from the viewpoint of a person in the actors situation under the circumstances as he believes them to be. Takes into account personal handicaps and other external characteristics but excludes idiosyncratic moral values of the D. Elements 1. D must act with EED 2. Reasonable explanation or excuse for such EED 3. May have provocation, brooding, fear, abuse, psychiatric testimony. 4. Understandable response that deserves mercy. Differs from Provocation b/c: (see Elliot below) 1. words are sufficient 2. need not be triggered by a specific event 3. not based on any specific time

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4. 5.

no cooling off or rekindling period EED occurs over a period of time

2 Part test (following MPC) (rule from Cassassa) 1. Subjective: the person must have suffered EED. It did not have to be state of mind so far fm norm to be mental illness. It is enough that the experienced intense feelings, sufficient to cause a loss of self-control @ the time of homicide. 2. Objective: there must be a reasonable explanation or excuse for the EMED-not for the killing but for the distress that caused actor to lose control. People v Cassasa (Subjective test): D obsessed with V who told D she did not love him, D broke into her apartment to eavesdrop and laid NAKED, Eventually D killed V and claimed EED. Court views MPC approach & holds: RULE: s EMED was not reasble. 2 prong test: (1) must have suffered EMED. Subj test. (2) must be reasble explanation or excuse for EMED; reasbleness determined from viewpoint of a person in s situation under circums as believed them to be. Obj.& Subj test. CONTRAST WITH, State v Elliot (EED and prov different): suffered from overwhelming fear of brother. Went to brothers house and killed him. RULE: EED does not need hot blood or triggering event. Rather it is caused by significant mental trauma that caused D to brood for long period of time and then react violently, seemingly without provocation Patterson v New York (was quoted in Cassassa) after separating from his wife, killed her new boyfriend. P was charged with second-degree murder. P raised affirmative defense that he suffered from EED. Jury convicted him. Appealed saying that State didnt prove beyond a reasonable doubt that he was not emotionally disturbed at the time. HELD: state only has to prove elements of the crime, has to prove affirmative defense. Affirmed. People v Walker (Contrary to MPC) D shot fellow drug dealer over money owed for drugs. HELD: Court does not allow EED defense for D provoked by words alone. This is contrary to the MPC. Dissent argues the premise of EMED is to allow the words alone and other broader exceptions to the traditional rule. Reasonableness Std. Of EED (Objective) Camplin: 15 yr. old boy was mocked by victim. D broke victims skill with frying pan. In determining reasonableness, a jury may consider an ordinary person of similar age. State v. McClain (battered woman). D shot and killed man whom she had a 9 yr. Troubled relationship. Man beat D twice w/in 9 yrs. Ct held s status as battered woman irrelevant on question of whether Vs conduct was adequately provocative b/c inquiry requires application of reasble person std. INVOLUNTARY MANSLAUGHTER C/L: A killing that occurs as a result of criminal (gross) negligence Commission of a lawful act which might produce death in an unlawful manner or w/o due causation or circumspection. should have realized that his conduct involved substantial & unjustifiable risk. No intent to kill but foreseeability of risk of engaging in that conduct.

Misdemeanor-Manslaughter RULE (unlawful act doctrine): when in the perpetration of a misdemeanor, a death results

Malum in se: if violation is a dangerous act in itself, then only but-for causation needed

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Malum in prohibitum: it violation is regulatory and therefore not dangerous in itself, both but-for and proximate cause must be shown MPC rejects; HOWEVER, if an act is unlawful, may be evidence that the act was recklessly done/committed (MPCs std. For manslaughter) MPC 210.3(1) Manslaughter when (a) committed recklessly; OR (b) under the influence of extreme emotional disturbance for which there is reasonable explanation or excuse, determined from viewpoint of person in s situation under circumstance as he believed them to be. GROSS NEGLIGENCE MPC 210.3 (a) does not divide manslaughter into voluntary/involuntary but equivalent of CL involuntary criminal homicide is manslaughter when it is committed recklessly. Recklessly conscious disregard of a substantial & unjustifiable risk that the material elements exists or w/ result fm his conduct. Risk m/b of such a nature & degree that, considering the nature & purpose of the conduct & circumstances known 2 him, its disregard involves a gross deviation fm std of conduct that a law abiding person would observe in the actors situation. Involves killing another where the intent is recklessness or gross negligence. Involves a considerable amt of risk taking. No intent to kill but foreseeability of risk of engaging in that conduct. Criminal Negligence A. General Rule: A person who kills another in a criminally negligent manner is guilty of involuntary manslaughter. If he should have realized that his conduct involved a substantial and unjustifiable risk. If he knew, it would be murder. Thus, the difference is in the persons awareness of the risk. Williams, Indians did not take ill child to doctor. They were unaware of the seriousness of the condition, although a RPP in their circumstances would have realized the child was seriously ill. Their conduct was negligence. (If they had been aware of the life-threatening condition, and ignored it, their conduct would have constituted reckless murder.)

B.

Williams allows a conviction in the face of mere ordinary negligence. This objective std is now disfavored because it allows conviction when there is no guilty mind at all. CW v. Welansky (Nightclub owner blocks fire exits p.425) Nightclub owner blocks fire exits to keep patrons from leaving w/o paying. Waiter lit match and tree caught on fire and customers died b/c exits blocked. Ct held that created homicidal risk by reckless and wanton conduct. convicted of involuntary manslaughter. CREATION OF HOMICIDAL RISK. MPC 2.02(2)(c) culpable recklessness: (1) magnitude of risk; (2) awareness of risk; and (3) absence of justification or social utility. If has duty to care for guests safety, then s conduct is wanton or reckless if he intentionally fails to provide care. Even if thought he was careful, if facts are such that a reasble person would believe otherwise, then behavior was reckless. Rule: When a duty of care exists, wanton or reckless conduct may be imputed from omission. HOWEVER, US v. Fleming: Drunken driving @ excessive speed, collided w/ car and killed woman driving. Murder conviction (AND NOT MANS) affirmed. Held: Malice aforethought is element of murder. Malice does not require an intent to kill or injure, nor does it require ill will against V. Evidence of reckless & wanton conduct that is a gross deviation from reasble std of care, sufficient to support inference that was aware of serious risk of death, may demonstrate malice. CONTRAST WITH THE GROSS DEVIATION FROM REASONBLE STANDARD OF CARE IN FLEMMING (2ND DEGREE MURDER) State v Barnett (car dangerous instrumentality): convicted of invol mans b/c of a homicide resulting from gross negl operation of car. Rule: When dangerous instrumentality (e.g. cars, guns) are involved, the regular negligence gross/crim negligence.

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State v Williams (children tooth infection): Native American parents failed to seek medical attention for babys tooth infection that turned into gangrene. Baby died. HELD: s convicted of involuntary manslaughter due to status relationship. RULE: Where the failure of a person to act while under the duty to do so is the prox cause of the death of another, that person may be convicted of invol mans, even though his conduct was no more than ordinary negligence. MISDEMEANOR MANSLAUGHTER

Killing in the course of the commission of a misdemeanor is manslaughter. If misdemeanor involved is not inherently wrong, death caused during commission is mans only if death was foreseeable result of commission of misdemeanor. (Ex. Driving at a slightly accelerated speed & V dashes out from bushes. No M-M b/c misdemeanor of slightly speeding is not inherently wrong).

FELONIES NOT INCLUDED IN F/M Killing caused during commission of felony but does not qualify as a F/M case, killing will be involuntary mans. DEFENSE Consent is never a defense.

FELONY MURDER (F/M)

1. A person is guilty of felony murder if he kills anyone during the commission of a felony. It authorizes strict liability for a death that results from a felony that is intentionally committed, without requiring mens rea. There is NO provocation or diminished capacity defense. 2. At common law, a person is guilty of murder if he kills another person, even accidentally, during the commission or attempted commission of a felony. (Serne) 3. FM is not limited to foreseeable death (Stamp) (thin skull doctrine, robbery victim dies of heart attack) People v. Stamp Robbery victim dies of heart attack (thin skull doctrine) F/M applies to all homicides that occur during felony whether foreseeable or not, whether death was a natural consequence or not. Robber takes his victims as he finds them. A. MPC rejects FM, however, a killing during a dangerous felony is presumed to have been committed recklessly under conditions manifesting an extreme indifference to the value of human life. In states that divide murder into degrees, FM is 1st degree murder when the statute enumerates specific felonies (usually rape, robbery, arson, burglary). All other FMs are 2nd degree murder. FM rule eases the prosecutors burden of proving malice aforethought by dispensing of the requirement that he show the felon intended to kill or injure grievously or aware conduct highly dangerous (malice aforethought is imputed, prosecution must only prove intent to assault. D would have to use MOF as a defense, to show he did not intend to commit felony. D cannot offer evidence to rebut his intent to kill (cuz its imputed! Imputation is not a rebuttable presumption) such as heat of passion, EED, intoxication, etc.

B.

C.

Felony-Murder at C/L Rule: a murder committed during the commission of or escape from a felony where the mens rea for murder is imputed from the felony.

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Malice aforethought imputed from felony. Strict liability for deaths that occur during the commission of a felony. Lessens the prosecutions burden by imputing malice from the felony. Purpose is to deter felons from killing negligently or accidentally in the commission of a felony Policy of F/M: to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit (People v Washington)

MPC: does not specifically have a F/M rule MPC 210.2 (b): criminal homicides constitutes murder when committed recklessly under circumstances manifesting extreme indifference to value of hum life. Such reckl & indifference or presumed if actor is engaged or is an accomplice in commission of or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. Regina v Serna (pg 448) father sets house on fire: set house on fire to collect insurance $ and killed son in fire. HELD: Jury found (JONES feels this verdict is random) Defrauding insurance company not an inherently dangerous felony not guilty of F/M. RULE: Any act known to be dangerous to life, and likely in itself to cause death, done for the purpose of committing a felony, which causes death, is considered murder. RULE: F/M doctrine not limited to foreseeable deaths. Felon held strictly liable for ALL killings committed by him or his accomplices in the course of felony. As long as homicide is direct causal result of robbery, F/M applies whether or not death was a natural and probable consequence of robbery. People v Stamp (F/M D take V as you see them): burglarized store w/ gun. V forced to lie on floor until left. Fat-ass V suffers heart attack and dies. HELD: guilty of 1st degree. RULE: F/M doctrine not limited to foreseeable deaths. Felon held strictly liable for ALL killings committed by him or his accomplices in the course of felony. As long as homicide is direct causal result of robbery, it does not matter that V may have had a predisposed condition, so long as that is not the only cause of death take your V as you find them applies whether or not death was a nat & prob consequence of robbery. NOTE: Most courts limit F/M doctrine to those that are inherently dangerous: kidnapping, rape, robbery, burglary, arson & assault 1st degree F/M; all other felonies 2nd degree. Causation: death must have been caused during commission or attempted commission of felony; but the fact that felony was technically completed before death was caused does not prevent killing from being F/M. (Deaths that occur while fleeing are F/M). HOWEVER, once felon reaches place of temporary safety, impact of F/M rule ceases & deaths subsequently caused are NOT F/M. 3 LIMITATIONS TO FELONY MURDER 1. Inherently Dangerous Felonies: Homicide must occur in the perpetration of the felony. A few cts require that homicide occur at actual moment of felony. Only felonies inherently dangerous to human life can support application of F/M. Most courts limit F/M doctrine to those that are inherently dangerous the following is 1st degree F/M: o kidnapping, o rape, o robbery, o burglary, o arson o assault all other felonies 2nd degree

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2 Approaches to determine Inherently Dangerous Crimes:

1. ABSTRACT TEST: Consider the elements of the crime as defined by statute ignoring the facts of the specific case; Question: whether the crime by its very nature cannot be committed without creating a substantial risk that someone will be killed. if statute can be violated in a manner that does not result in death, then felony is NOT dangerous in the abstract. People v Philips (CA case Not Inherently dangerous in abstract) , chiropractor, told parents he could cure child w/ eye cancer. s misrep was categorized as grand theft, which is not inherently dangerous to life. HELD: Conviction revd on the grounds that wrong felony-murder instruction was given. RULE: To determine whether a felony is inherently dangerous, look to the elements of the felony in the abstract- grand theft is not inherently dangerous in the abstract. Therefore, no F/M. People v Stachell (pg 462 CA caseNot Inherently dangerous in abstract) Ex-felon possessed a gun and killed a man in a street fight. RULE: court said that an ex-felons possession of a gun is not inherently dangerous in the abstract, thus no F/M. People v Henderson (pg 463 CA case Not Inherently dangerous in abstract) D held V hostage by holding gun to gun, when hostage ducked, gun went off, and killed by standard RULE: Unlawful restrain false imprisonment is not inherently dangerous in the abstract 2. PARTICULAR FACTS TEST: Consider the facts and circumstances of the particular case to determine if felony was inherently dangerous in the manner and circumstances in which it was committed. Is the way felony was committed likely to cause death? If yes, felony-murder rule applies. People v Stewart (Inherently Dangerous) D, on a crack binge, neglected to feed her infant (under 2 mths); D charged with the felony of wrongfully permitting a child to be a habitual suffer. HELD: D was charged 2nd degree F/M RULE: Conviction upheld on the grounds that jury found that Ds conduct leading to commission of felony was inherently dangerous in the circumstances of the particular case. CONTRAST WITH, People v Caffero (CA Not Inherently Dangerous) two week old baby dies of bacterial infection due to parental neglect, parents charged with 2nd F/M and the felony was child abuse, HELD: D NOT charged with 2nd degree F/M RULE: Since the felony (child abuse) was not inherently dangerous in the abstract, it could not properly served as a predicate felony to a predicate 2nd degree felony murder. 2. Independent Felonious Purpose

Merger Doctrine: Felony must have independent felonious purpose, otherwise the murder will merge w/ the predicate felony. o IF MERGER NO F/M RULE!!! o Ireland Rule: if underlying felony is same transaction as murder, merger applies & no F/M. This is so because there is no way for an actor to commit an assault with a deadly weapon in a non-dangerous manner.

People v. Smith (No F/M): Parents beat 2 yr old to death as discipline. HELD: that b/c homicide was result of assaultive child abuse killing merged into main crime of violating child abuse stat. RULE: Here the assault directly caused childs death; therefore merger rule applies. CONTRAST WITH,

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People v Shockley (F/M): The death of a child was caused by malnutrition and dehydration. HELD: Where the underlying felony is based on an independent felonious (child abuse malnutrition/ dehydration) purpose merger rule does not apply and F/M on these facts Ireland compels application of the merger rule. 3. Killings Not In Furtherance of the Felony: Causation Limitation: the mere fact that a death occurs during the commission of a felony will not subject the felon to FM liability. Instead, it must be shown that there is a causal connection between the felony and the harm.

killing must be in furtherance of the felony, otherwise NO F/M

A. AGENCY THEORY: (majority rule). Co-felons only responsible for other co-felons actions and not responsible for acts of non-cofelons which are in furtherance of the felony. Who the V does not matter. State v. Canola (No F/M): and co-felons robbed jewelry store when V shot one of the cofelons. HELD: no F/M. RULE: Co-felons are not guilty b/c they are not responsible for acts of non-felons. Thus, no F/M. People v. Cabaltero (No F/M): A panicky look-out shot at occupants of a car driving by; leader of group shot look-out b/c of his stupidity. Would other members of group guilty of murder? HELD: Therefore, no F/M. RULE: Co-Felon killing not in furtherance of the crime; therefore, other members not guilty under agency theory. US v. Heinlein (pg 476 No F/M) 3Ds committing a rape; V slapped D in an effort to defend herself; D killed V; could other Ds be held liable? HELD: No. The unanticipated actions of a felon not in furtherance of the common purpose and was an extra unrelated action cannot be attributable to other felons. RULE: D will not be held liable is act the unanticipated acts that are not within the furtherance of the felony B. PROXIMATE CAUSE THEORY: (minority rule). Felon may be liable under F/M for killing committed by non-felon or co-felon, if felon or accomplices set in motion acts that result in Vs death. 1. killing must be foreseeable 2. causal act has to be part of felonious conduct 3. act must be linked in causal chain People v. Hernandez (pg 475) police killing another in shooting caused by armed robbery; felon guilty b/c proximate cause in furtherance of crime. RULE: Criminal liability will adhere only when the felons acts are a sufficiently direct cause of death. Some cts limit this rule to not include cofelons death b/c V is justified, whereas non-felon killing by V is excusable homicide. Keaton v State (pg 473 Shield Cases) D uses V as Shield. V is shot by officers. Court found D guilty of murder b/c death was a reasonable natural and probable result of his act. RULE: In shield cases where victim is used as a shield the felon is held liable in F/M for the death because it is in the natural and foreseeable result (proximate) of his conduct C. VICARIOUS LIABILITY: (NOT A PART OF F/M) Felon is responsible for any killing attributable to the intentional acts of a Co-Felon Committed with conscious disregard for life More expansive than the F/M rule, and more people are going to be convicted under the rule

4 factors: 1. 2. 3. 4. Concious disregard for life Conduct of V attributable to D. Actions V kills in reasonable response to act Must be in furtherance of the crime

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NOTE: If D and B rob a bank trying to escape D fires at a cop a cop fires back and shoots B D is vicariously liable for Bs death, because death was in response to the gunplay which he initiated. Taylor v. Superior Ct. (No F/M) was in a look-out car while co- s attempted to rob store. 1 of co- s, while pointing gun & saying provocative things, instructed Vs to follow the orders. Vs wife shot & killed co- . RULE: When or accomplice, w/ a conscious disregard for life, intentionally commits an act thats likely to cause death & his V or a police officer kills in a reasble response to such an act, is guilty of murder thru V/L b/c mens rea requirement is estd by co-felons act. Intent is determined by reckless conduct of . CONTRAST WITH, People v. Antick (No F/M) ( s robbed house & got away. Police saw their car & one of the s was found; he (V) was shot by police while trying to get away. The other was found & charged with Vs murder under both F/M and V/L theories). Held: was not convicted under F/M b/c killing was not committed by a felon or confederate acting in furtherance of the felony. not guilty for V/L b/c V had to have committed a murder (caused the death of another human being w/ malice). Vs malicious conduct (in starting shoot-out w/ police) did not result in the unlawful killing of another, but rather in his own death. F/M DISTINGUISHABLE FROM V/L: F/M: mens rea imputed from s felony; co-felon killed someone V/L separate mens rea is required; either V or cop killed someone Defenses to F/M 1. if has defense for underlying felony, he has one for murder 2. felony not independent of killing (invoke Merger Doctrine) 3. death not foreseeable 4. deaths caused while fleeing from felony is F/M but once reaches point of temporary safety, killing that is subsequent break in causation. 5. Consent is almost never a defense.

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C/L:

MURDER Unlawful killing w/ malice aforethought

1st degree: premeditation and deliberation- Carroll 2nd degree: lack of premeditation and deliberation- Guthrie and Anderson Justification or excuse allowed MPC Committed purposely, knowingly, or recklessly Extreme indifference to value of human life (ie robbery, rape, deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape

MANSLAUGHTER Vol- an intl killing w/ existence of adequate provocation (ie heat of passion) w/o malice aforethought Invol- (1) crim negl (neg or reck) (2) misdemeanormanslaughter rule & felonies not included in F/M No justification or excuse

NEG HOMICIDE

F/M Malice imputed from felony

Felony must be independent of killing. Death occurred during commission of felony. If death occurs while fleeing F/M

Committed recklessly OR committed under EED for which there is a reable explanation or excuse

Negligently caused death of a human being

Felony Murder v. Vicarious Liability Vicarious Liability Intent not imputed, malice present, either express or implied by s actions: a. recklessness b. initiating gun battle c. threatening / aggressiveness = initiation Killing can be in hostility to or in resistance to the felony ????

Felony Murder Mens rea imputed from s intent to commit the felony

Killing must be done in furtherance of the felony Agency and Proximate Cause theories apply as to the extent of the liability

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CAUSATION MPC 2.03 (1) CAUSAL RELATIONSHIP BETWEEN CONDUCT AND RESULT; 1. Conduct is the cause of a result when: a. It is an antecedent but for which the result in question would not have occurred and b. The relationship between and conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense 2. When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of th eact or unless: a. The actual result differs from that designed or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or b. The actual result involves the same kind of injury or harm as the designed or contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on the actors liability oron the gravity of his offense. 3. When recklessly or negligently causing a particular result isan element of an offense, the element is not established if the actual result is not within the risk of which th actor is aware or, in the case of negligence, of which he should be aware unless; a. The actual result differs form the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or b. The actual result involves the same kind of injury or harmas the probable result ad is not too remote or accidental in tis occurrence to have a [just] bearing on the actors liability or on the gravity of his offense 4. When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actor conduct Jerome Halls Factors of Causation 1. Mens Rea (must be more than negligence) 2. Must be the Cause of the Harm a. But-For (Actual) cause i) but for rule ii) substantial factor test: actual cause satisfied if the act was a substantial factor in bringing about the result b. Proximate (Legal) cause i) is a policy question: is the connection between the act and the harm so stretched that it is unfair to hold liable or that harm? (or vice versa: is the harm close enough to hold the liable. 3. Perception by the actor of the means/end relationship a. must be aware that consequences are intended and foreseeable

ACTUAL CAUSE (AC)

not guilty of offense unless he is an actual cause of harm. C/L & under MPC, AC exists if the result that constitutes the criminal offense would not have occurred but for s voluntary act or omission.

MPC 2.03 (1) Conduct is the cause of a result when (a) it is an antecedent but for which the result in question would not have occurred; AND (b) the rel. btwn conduct & result satisfies any addl causal requirements imposed by Code or by law defining offense. MPC 2.03(2)(b) In the code but for causation is the only causal element that is required. The remaining issue of proximate cause is the proper scope of liability in the light of the actors culpability.

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That means the issue is whether D caused the prohibited result with the required degree of culpability purpose, etc. stated in the offense. Under code there are 2 tests to determine whether or not D had the required culpability: (1) in non-strictliability offenses D lacks the required culpability if the actual result was too remote or accidental in its occurrence to have a bearing on the actors liability or on the gravity of the offense. (2) in Strict Liability case, causation is not established unless the actual result is a probable consequence of the actors conduct. A. Proximate cause is ultimately a way of saying that it is morally just to hold the person causally responsible for the harm, that it was somehow foreseeable that the harm would result, or that the resulting harm is not so attenuated from what the actor did, to make it unjust to hold him responsible. PROXIMATE CAUSE (PC) PC determines who ought to be held causally accountable for the harm. Person who is an actual cause of resulting harm is not responsible unless hes also the p.c. of the harm A cause that directly produces an event & w/out, which the event would not have occurred. Three intervening causes: (this is when proximate cause generally arises) -Act of God -Third Party -Omission of the victim; himself/herself INTERVENING ACT: An independent force that produces social harm and only comes into play after the Ds voluntary act. SUPERCEDING ACT: (an intervening cause that breaks the causal chain): Breaks causal connection btwn s action & result b/c its remote; unforeseeable & independent from what did. Result supercedes s volition; independent act which had no control over & breaks causal chain. Thus, is not PC; not liable; PUBLIC POLICY ARG: would be unfair & unjust to hold liable if causal chain is broken. Breaks the causal connection between s action and result b/c its remote; unforeseeable and independent from what did. Result supersedes s volition; independent act which had no control over and breaks causal chain. Thus, is not liable; PUBLIC POLICY ARG: would be unfair and unjust to hold liable if causal chain is broken. HOWEVER, see Feinberg: [causation] received some dangerously toxic sterno and still sold to customers. Held: guilty b/c his negligence (failure to warn despite high knowledge of risk) RULE: decedents contributory negligence does NOT supersede s negligence, esp. since he had knowledge 1. of the risk and 2. of Vs proclivity to drink the product. See also Wassil: [causation] where drug dealer held liable b/c Vs not really acting voluntarily (not volition). ALL NATURAL & PROBABLE RESULTS RULE: is responsible for all results that occur as a natural & probable consequence of his conduct, even if he did not anticipate the precise manner in which they would occur. CHAIN OF CAUSATION ONLY BROKEN BY SUPERSEDING FACTORS. FORESEEABILITY & COINCIDENCE NOTE: Preexisting conditions does not break chain of causation. takes the V as he finds him. (People v Stamp) People v. Acosta (helicopter collision/PC) helicopter collision while chasing ; HELD: Extremely remarkable or unusual results are excluded from the purview of proximate cause. Ds conduct of fleeing the police, the helicopters would never have been in position for he crash. Applying the highly

38

extraordinary result standard the result was not highly extraodinary, but was foreseeable. RULE: not highly extraordinary, but foreseeable. People v Arzon: (No Superceding Factor/PC): (sofa caught fire in abandoned bldg. 2nd fire on another floorunlinked to 1st. Firefighter killed. convicted of 2nd degree murder & 2nd degree f/m).. HELD therefore PC. RULE: When acts with depraved indifference to human life, it is not necessary that ultimate harm be intended. If harm should have been foreseen liable. Has to be actual cause, but not sole and exclusive cause. NOTE: Jones says 2nd fire not a superceding cause People v Kibbe (pg 521 PC): D abandoned drunk robbery victim, on the side of the road naked. HELD: D was guilty, because death ensued from one chain of causation over another it is enough that the D exposed their V to the risk of death and he died. It is does not matter if the ultimate harm was intended by the actor, just that ultimate harm is something that would have been reasonably foreseen People v. Warner-Lambert (pg 523 No PC): D was told that chemical build up was dangerous. There is an explosion and employees are killed. HELD: Not guilty, because specific trigger effect no foreseeable. RULE: Ds actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability. CONTRAST WITH, People v Deitsch (pg 524 PC): In warehouse fire employee killed b/c he was trapped on the sixth floor and fire escape was blocked. HELD D created conditions in the warehouse which they should have foreseen could have resulted in death in the event of fire. Medical Maltreatment (Dependant Responsive Intervening Cause): Rule: D is liable for death of V if the wound is a substantial cause of the death as long as the act is not grossly negligence, incompetent, or highly unusually Dependant Responsive Intervening: An act that occurs in response or reaction to the Ds prior wrongful conduct and is not a superceding cause Hall v State (pg 526 PC) Robber struck victim 10 times in the head, D tried to prove death was caused by medical negligence. HELD: courts held even if so, he was responsible RULE: Person who inflicts serious wound to endanger life not relieved of responsibility even though improper medical treatment aggravates the wound & contributes to death State v Shabazz (pg 526 no superceding cause) D stabbed V, the wounds would have been fatal if not treated, V underwent surgery, but was negligently given an anticoagulant which lead to him bleeding to death. HELD: At the most the gross negligence would have been a contributing factor and not the sole cause RULE: Gross negligence may permit the D to escape liability only when it was the sole cause of death. United States v Main (pg 527): D and V were fleeing cops, and got into accident. V is trapped in car, cop decides not to move V. V never received medical attention was necessary and V should have been taken to the hospital by a cop. D was charged with invol. Mans. HELD: PC of the death was the failure to get medical attention by the cop and not because of the the actual events of the D Transferred Intent: We attribute liability to a who intending to kill (or injure) one person accidentally kills (or injure) another person instead. The law transfers the actors state of mind regarding the intended victim to the unintended one. Subsequent Human Actions: RULE: Intervening act will shield from liability if act is a mere coincidence or is outside foreseeable sphere of risk created by . dependent intervening cause: if it occurs in response to s earlier action. ( responsible unless intervening act was extraordinary/ freakish).

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independent intervening cause: if the factor would have come into play in the absence of s conduct. (D placed the V in a situation where the intervening cause could independently act on V) People v Campbell (Suicide ) and V were drinking heavily when found out that V slept w/ s wife. encouraged V to kill himself. gave V gun and left. V shot himself. not guilty of murder, b/c by definition homicide is the killing of one human being by another. RULE: Incitement to suicide is not murder; murder requires killing of another human being. Where the defendant does not force as act or a result, the act is an independent choice or the actor, no liability. Suicide is killing of oneselfnot of another CONTRAST People v Duffy (pg 535) D gave gun to drunk V, D said blow your head off and watched HELD: Person knowing that another is contemplating suicide, and furnishes the means, and goads/encourages him can be said to have substantial and unjustifiable risk and result in his death People v Kevorkian (pg 531 No PC) provided suicide instruments for two elderly Vs. RULE: must commit the final overt act; not PC of Vs actions. CONTRAST WITH, People v Roberts (guilty of assis. Suicide) Ds wife suffering from MS, D provided her with poison placed glass within her reach, she drank it and died. HELD D deliberately placed within her reach the means of taking her own life, which she could have obtained in no other way by reason of her helpless condition EXCEPTION: Stephen v State (guilty of Vs Suicide): deceased drank poison and killed herself in custody of D b/c the def abducted her and subjected her to sexual perversion. The deceased acted under a form of coercion not of free will. Def argues her intervening action b/c she did of her own free will and he d/n know she would kill herself. HELD: The act was not willful but a result of the defs conduct. The natural and probable consequences of his actions were that she killed herself. RULE: V was rendered mentally irresponsible by s conduct, so that resulting suicide was a nat & prob consequence of s conduct. s actions, taken as a whole, make him crimlly responsible for Vs death. Whole ordeal was 1 transaction; causation link not interrupted. NOTE: If V was returned to safety and then took poison, there would be break in causal link, and prob. Not guilty Bailey v Commonwealth (pg 544) this case turns on coercion or foreseeabilty b/c he kept taunting him on issues he knew would piss him off. His intent was precisely that that occurred. He wanted there 2b an altercation b/t deceased and police causing his death. Stamp, D takes his victim as he finds him. Liability is not limited to foreseeability. Robbery victim suffers heart attack. Brackett, liability was upheld where D beat up 85 yr old woman who choked to death while being force fed, became depressed and refused to eat But, presumably, if an unusual, unforeseen disease is contracted after the assault, the D is relieved of liability. D. Negligent or Maltreatment of Injury D remains responsible for the death of another if he wounds or injures another and such injury results in death. It is irrelevant that the death is the result negligent or improper medical treatment, except where there is gross negligence. Hall, A person who inflicts a serious wound will be responsible for the natural consequences of his own act. Murder conviction sustained where D hit guy over head, and later Dr. malpracticed.

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Jordan, murder conviction quashed in light of grossly negligent medical treatment. The same result would occur if the wound was minor but required med treatment & patient died cuz of N treatment. D. Intended Consequences doctrine: In general, D is the proximate cause (even if there is an intervening cause) if the result was intended by the D. eg: Jim wants to kill Garfield so he sets up a trip wire so that when he moves through it he will be shot. Odie picks up gun and accidentally shoots Garfield. Jim is the proximate cause of Garfields death. Free, deliberate, and informed human intervention: In general, D is not the proximate cause if the intervening cause is the result of someones free will. Free will breaks the causal chain. Campbell. Eg: D batters V, who is left lying in road, and is robbed by Z. D is proximate cause of battery, but not the ensuing robbery, because Zs act of robbing V is a free, deliberate, and informed intervening act. Or V decides to sleep outside and dies Preslar. MPC uses causation to convict in cases of transferred intent on the theory that the result was intentionally caused MPC 2.03(2)(a)

E.

F.

Subsequent Actions that Recklessly Risk the Result Drag Racing Commonwealth v Root (DR Not Guilty) : and V are drag racing. V hits oncoming car. not convicted b/c V was aware of risk by his own reckless act. Ct did not want to hold responsible for Vs reckless behavior. RULE: s reckless conduct not sufficiently direct cause of competing drivers death to make him criminally liable. V had choice not to participatehe assumed the risk. (Used a criminal std of negligence). ARG: he was goaded and compelled to compete. CONTRAST WITH State v McFadden (DR Guilty) and V drag racing on city street. V lost control, hit another car and killed himself and 3rd party. convicted of invol mans. RULE: proximately caused Vs death b/c recklessly engaged in drag racing. held vicariously liable for Vs death (invol mans). aided and abetted invol mans. Holding rejects the stringent direct causal connection in Root. Russian Roulette Commonwealth v Atencio (RR Guilty) s and V played RUSSIAN ROULETTE. Gun fired when V pulled triggered. s guilty of invol mans. RULE: When V shoots himself to death as part of Russian Roulette, the other players are criminally liable. s encouraged (coerced)V to participate in game joint enterprise. Concerted action + cooperation = reckless conduct. Atencio, like Root, V kills himself and is also acting on his own. But certainty of death was greater in his risk taking venture b/c Russian Roulette relies on luck & not skill, here this was looked at as a joint enterprise & thus the D caused the victims death. (note in Malone D shot V, and it was 2d degree murder cuz D had no choice. Here, V had a choice, thus D is only convicted of manslaughter) CONTRAST WITH Lewis v. State (RR Not Guilty) and V played Russian Roulette on several occasions. left room; V played w/ gun and shot himself. not guilty. RULE: Free will of V was cause which broke chain of causation. Coercion ceased when stepped out of room. V acted independently. People v Kern (pg 547) V was chased by some people trying to kill him. He ran onto the highway and was killed by car guilty b/c V did not have a choice. His actions were forced and natural response to Ds actions. Direct Cause

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Common v Feinberg (pg 552) Merchant sold customers some sterno (fuel used for lighters) there was a sign saying not to drink. D failed to warn people of the sterno, even tough he had high awareness of the risk. HELD: Found guilty. The bottle had all sorts of warning labels but since he knew that his customers would drink the poison, he was liable. Contributory negligence of the deceased is never a defense in a criminal action. DR & RR DIFFERENCE: DR death results from lack of skill & judgment. RR death results from mere luck and outcome is a certainty.

ATTEMPT
RULE: Attempt occurs when a person w/ intent to commit specific offense performs any act that constitutes a substantial step toward commission of that offense but falls short of completion. At C/L specific intent crime. A criminal attempt merges into the target offense if it is successfully completed. For intent you need to show both: Mens Rea (Intent) and Actus Reus (Conduct) (1) intent/ mens rea (specific intent under C/L) Express Malice (Specific Intent) Implied Malice (knowledge;purpose MPC) Recklessness (under Colorado Law) (2) Conduct act in furtherance of intent beyond preparation (SUBSTANTIAL STEP MUST BE BIG ENOUGH THAT CANT TURN BACK.) Passed up opportunity to repent (locus penitenti) Police intervention Three elements: (1) intent/ mens rea (specific intent under C/L) (2) act in furtherance of intent beyond preparation (overt act) (3) failure of consummation

Jones three factors (preparation attempt): (1) firmness of purpose/manifested intent (2) passed up opportunity to repent (3) police intervention ISSUES 1) Do the facts show D has specific intent to do a crime? 2) Has actor passed the locus peniteniae (point of repenting) 3) Do the police have an adequate opportunity to intervene? I. Definition: An attempt is an inchoate crime involving (1) a specific intent to do an act or bring about certain consequences which in law would amount to a crime; (2) an act in furtherance of that intent which goes beyond mere preparation; (3) failure of consummation Justification for punishment deterrence-prevent a person from completing a crime, people who attempt crimes are dangerous and need to be locked up retribution- when attempting a crime, a person causes social harm by creating public apprehension.

II.

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III.

Mens Rea Requirement A. Kraft: an attempt requires (purpose), conscious objective, specific intent with respect to the result, even if a lesser mens rea may suffice for conviction of the completed crime.schitzo shoots man who cuts him off. B. Thomas: specific intent can be inferred from purpose, knowledge, or even recklessness (if D knows prohibited result is practically certain to occur or when he recklessly disregards a substantial risk)---D convicted shoots warning shots at fleeing rapist. C. Krovarz: requires purposely or knowledge D. MPC 5.01(1)(b) mens rea is satisfied in an attempt when D acts with the purpose of causing the result or a belief that his conduct will cause the result. (allows liability where specific intent was to blow up plane, but bomb failed to explode)---purposely or knowingly as to result.

IV.

Attendant Circumstances At C/L it is unclear what mens rea an actor must possess regarding attendant circumstance to be guilty of an attempt A. MPC 5.01 (1) a person is guilty of an attempt if purposely engages in circumstances as he believes them to be. Purpose requirement does not apply to attendant circumstances only need mental state that would suffice for the target offense. B. Hypo: D proposes sex with 15 yr old girl who he thought was 17. Can he be guilty of attempted statutory rape? (MPC is ambiguous on this issue) Issue: Can crime of attempted statutory rape be committed when D is not aware he is engaging in conduct that constitutes the completed crime? Not guilty of attempt: Attempt law is to interrupt actors from performing a dangerous deed. Deterring conduct as to attendant circumstances, mistake, is not as important as deterring result. Dont punish for thoughts alone.

Guilty of attempt Since its a SL crime, D may be convicted of attempt even if he possessed no culpable mental state regarding Vs age. POLICY arg: the purpose of statutory rape law is to protect young minors from being sexually violated at an age where they are too immature to consent. A proposal for sex to a young child is almost as dangerous as the act itself. V.

Actus Reus for Attempt: When does preparation become Attempt? A. Last Proximate act test: the rule used to be that an act is only an attempt when the person performed all of the acts he believed were necessary to commit the target offense Eagleton (not guilty unless pulls trigger, stabs victim, etc. but in most cases it will be impossible for police to intervene) B. Traditional Common Law Proximity Approach: if the preparation comes very near completion, it may amount to an attempt even though last act is not completed. Intent must be clear, dangerousness of completed crime (the larger the crime---the further away an attempt can be found) Peaslee (allows police to intervenecrime control perspective but unfair because criminal may still change his mind and repent) 1. Barker: admitted no definitive test for determining whether a given act of preparation can support attempt conviction. First step not enough, last act not required (buying a gun and walking toward victim is not attempt) Dangerous Proximity test: conduct is so near to the result that the danger of success is very great. Rizzo (cts consider nearness of the danger, the greatness of the harm, and the degree of apprehension felt. The more serious the offense, the further away attempt can be found)(Preserves opportunity to repent, assures firmness of criminal design) Res Ipsa Loquitur or Unequivocality test: not guilty unless persons conduct ceases to be equivocal (ambiguous)

C.

D.

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1.

Miller holds that one must cease to be equivocal or else no one can say for certain that the actor would have continued.(did he come to field with rifle to kill V or demand his arrest?)

5.01 MPC Approach: Draws on elements of both proximity approach and equivocality approach----conduct must be a substantial step toward committing the crime, and strongly corroborative of Ds criminal purpose. Shifts focus from what remains to be done to what actors have already done. F. MPC 5.01(2) examples of conduct which may be substantial step: a. lying in wait, searching for or following the contemplated victim of the crime b. enticing or seeking to entice the contemplated victim to go to place contemplated for its commission c. possession of unlawful materials to be employed for commission of crime d. soliciting an innocent agent to engage in conduct constituting an element of the crime. E. Jackson: broadens scope of attempt liability. 2-tier test of attempt, need 1) acted with the kind of culpability otherwise required for the commission of the offense, and 2) engaged in conduct which constitutes a substantial step toward commission of the crime. This approach assures firmness of criminal design (Rizzo) while allowing for apprehension of dangerous persons without risking a harmful result(Peaslee). (Ds planned to rob bank, obtained shotguns, getaway car, etc, but wimped out cuz too many witnesses, guilty of attempt.) 2. Buffington, 3 men take steps to rob bank but unable to due to power outage. Conduct fell short of substantial step toward commission of a robbery. 3. Mandujano, 4 telephone calls and journey with cops money were deemed enough of a substantial step to constitute conviction of attempt to distribute heroin 4. Joyce, D flies to St. Louis to buy coke, D and cop pass package back and forth, never offered the money wanted to see the coke, D not guilty. 1. MPC 5.01 Guilty of attempt if, acting with the kind of culpability otherwise required for commission, he: 1. PURPOSELY engages in conduct which would constitute crime if att circums were as he believed them to be; OR 2. When causing a particular result is an element of crime, does or omits to do anything w/ PURPOSE of causing or w/ belief that will cause such result w/o futher conduct on his part; OR 3. PURPOSELY does or omits to do anything which, under circum as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of crime.

Common law looks for what still needs to be done MPC looks at what has already been done

Attempted Felony Murder almost all states reject attempted felony murder. Attempted Voluntary Manslaughter a person must be convicted of this since provocation is the excuse for murder but the specific intent is still present. Whereas w/ involuntary manslaughter there is no specific intent and therefore can be no attempt. State v Holbron CONTRAST WITH People v Thomas Mens Rea Of Attempt (Intent) must have intent to perform act & obtain result that, if achieved, would constitute a crime @ C/L attempt is a specific-intent offense, requiring proof of 2 intents; the 2nd of which (spec. intent) is more significant one.

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(1) must intend to engage in conduct that constitutes actus reus of attempt. (2) must intend to take a substantial step in direction of committing target offense. (SUBSTANTIAL STEP MUST BE BIG ENOUGH THAT CANT TURN BACK.) must commit actus reus (the substantial step) w/ specific intent to commit target offense.

Smallwood v State (pg 556) no specific intent did not use condom when raping Vs even though he knew he had HIV. HELD: Not guilty of attempted murder b/c did not have intent to murder, only had intent to rape. Cant be convicted of a crime without specific intent to commit that particular crime. RULE: must have specific intent required for offense if that offense was carried out. (i.e. attempted murdermust have same mens rea as is required for murder). No outward manifestation of specific intent here CONTRAST WITH, Ds outward manifestations expressed a clear specific intent to use HIV as a deadly weapon, in Hinkhouse: withheld info when asked, heard saying if he had it he would infect others; Caine: jabbed used syringe in V arm and yelled Ill give you aids; Weeks: spit on guard thinking that he could spread it People v Kraft: specific intent C/L: shot at fellow driver who tried to talk to him. In trying to escape, shot at one cop. In trying to escape from that cop, he shot at several more. Held: s attempted murder conviction reversed on the grounds that an attempt requires purpose or a specific intent even if a lesser mens rea may suffice for conviction of completed crime. RULE: attempt cant be predicated on the result if the crime was completed. i.e. if actor shot in the air and killed someone that would be murder; but cant say there was attempted murder if you did not hit anyone and there was no intent. Jones v State (pg 559) specific intent C/L D shot at house full of people, guilty of murder for those killed, but for those who live acquitted of attempted murder - higher std for attempt then completion Thacker v Commonwealth (pg 560) Drunk shot at woman in tent. Held: lacked intent to kill, so could not be convicted of attempted murder. However, could have been convicted of murder if bullet killed her. People v Thomas (pg 560) Colorodo Rule recklessness : D shot three shots at a man who he thought was fleeing a rape. Attempt is established if D engages in conduct constituting a substantial step towards committing the offense. Rule: Recklessness is sufficient for attempt liability. Actus Reus (Preparation/Overt Act): PREPARATION (Overt Act) must have acted beyond mere prep. 4 tests: (1) Proximity test: how close came to completion. Under typical test, attempt requires act that is dangerously close to success. (2) Last Act Test (3) Equivocality Test: followed by few cts; act by itself must demonstrate that had an equivocal intent to commit crime. (4) MPC Test: requires that s omission constitute substantial step in course of conduct planned to culminate in commission of crime. must have acted beyond mere prep.

Tests Last Act Test person performed all acts necessary 2 commit the target offense. This is bad b/c police w/n/b able to arrest until crime already committed. R. v Eagleton the accused must have taken the last step and have done all that he intends to do, therefore have lost his locus penitentiae

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Unequivocality Test (RIL/Last Act Test) occurs when a persons conduct standing alone, unambiguously manifests her criminal intent. Looking not to how far the defendant has gone but how clearly his acts bespeak his intents the intent King v Barker Dangerous Proximity a person is guilty when her conduct is in dangerous proximity to success or when an act is so near to the result that the dgr of success is very great. No clear pt of proximity but three factors viewed: 1)nearness of the degree, 2) greatness of harm, 3) degree of apprehension felt. Looks to what remains to be done People v Rizzo

MPC: Substantial Step Test ( MPC 5.01(2)) Conduct shall not be held to constitute a substantial step under Subsection (1)(c) unless it is STRONGLY corroborative of s criminal purpose. US v Jackson MPC Substantial Step Possession of materials Soliciting an innocent Lying in wait Enticing to go to place where act will take place Unlawful entry of structure Reconnoitering place DANGEROUS PROXIMITY TEST People v Rizzo (pg 565) (did not not find V, so not guilty): D planed to rob payroll drove around and never even found the victim. def engages in conduct which tends to effect the commission of the crime. No attempt b/c acts d/n come dangerously near the consummation. Here the defendant did not find the victim so not dangerously near the consummation. State v Duke (pg 567): Cop posed as a 12 year old kid on internet, to trap molester. He just flashed his lights to call the girl over. HELD: Not guilty, because overt acts of D were all planning and did not go far enough towards the consomation of the act. SUBSTANTIAL STEP TEST (MPC) US v Jackson: Tried twice to rob Ds planned to rob bank and obtained shot guns, a getaway car and accomplices. When crime time came, though, they say too many patrons and turned back. D were arrested at second try as they drove away because they saw police surveillance. Test of attempt culpability is based on may be convicted of attempt when he did not commit last proximate act necessary to effect a particular result that is an element of offense. 2 prong test: (1) must have been acting w/ kind of culpability otherwise required for conviction of crime(evidence of intent); and (2) substantial step must be corroborative of the firmness of s criminal intent. (Roughly the state and 2/3 of the fed circuits use a substantial step test comparable to that of the MPC) SEE ALSO United States v Mandujano (pg 579) Heroin: attempted to distribute heroin to undercover police officer, but his distributors were unavailable. Held: took substantial step in committing offense by trying to find the heroin dealer guilty of attempting to distribute heroin. CONTRAST WITH US v Harper (pg 578) D/N follow MPC: no substantial step (doesnt follow the MPC approach). ATM bill trap, they had not taken such a substantial step that unless frustrated it would have occurred - making an appointment w/ a victim is not in itself a commitment to intended crime

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United States v Joyce (pg 579) No Attempt : D was going to buy coke from an undercover cop but the deal broke when he did not show the cop his money. HELD: Court ruled that since D did not show the money or open the package, there was no substantial step. Consistent with MPC, But originally convicted under C/L. UNEQUIVOCALITY TEST (C/L) People v Miller: D threatened to kill V and D accused of harassing his wife D later went armed with a rifle following them to the woods, ultimately 3rd party took possession of gun without resistance HELD: D was not guilty of attempted murder b/c up to the moment gun was taken from D no one can say with certainty whether he went into the woods to carry out his threat. DEFENSES Factual impossibilitynot a defense. It is no defense to attempt that it would have been factually impossible for to complete plan. Factual impossibility as to Att Circumsnot a defense. No defense when engages in conduct while mistaken about certain att circums; had circums been as believed they were, what set out to do would be a crime. However, b/c circums were otherwise, what has set out to do will not be a crime. Cts traditionally have split on whether this is legal or factual impossibility, but the better view is that it is factual impossibility and NOT a defense. Legal impossibilityis a defense. Those things that does or intends to do would not actually be a crime. Pertains to those situations in which sets outs to do things mistakenly believe constitute crimes. RENUNCIATION/ ABANDONMENT Defense: Abandonment (Renunciation of criminal purpose) MPC 5.01(4) is an affirmative defense if (1) he abandons his effort to commit the crime or prevents it from being committed; and (2) his conduct manifests complete and voluntary renunciation of his criminal intent. Renunciation is not voluntary if done because D knew police were watching him, or motivated by decision to postpone conduct until a more advantageous time or to transfer the effort to another but similar objective or victim. 1. Rationale: incentive to actor to turn away from criminal enterprises before he consummates the offense. 2. C/L does not recognize this defense. Under MPC: Must be (1) voluntary; and (2) complete

People v. Johnston entered gas station, pulled out a gun & demanded $. After V gave him only $50, said just kidding. Held: Ct refused renunciation and abandonment defense b/c renunciation was not voluntary. See also People v. McNeal forced V at knife point to his house w/ intent to rape her. She pleaded w/ him and he released her. Held: did not renunciate b/c was not voluntary. CONTRAST, in Ross v. State ct found abandonment as a matter of law and reversed conviction for attempted rape b/c no one prevented from completing it. V successfully persuaded , on his own free will, to abandon his attempt. NOTE: In the above cases, cts struggled w/ what constitutes free will & voluntary

IMPOSSIBILITY
At C/L, legal impossibility is a defense but factual is not. Under MPC, legal impossibility or factual impossibility is not a defense. FACTUAL IMPOSSIBILITY (not defense)

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Extraneous circumstance unknown to or beyond his control prevent consummation of intended crime. Exists when s actions would have resulted in commission of target offense if facts had been what believed them to be. Example: if pickpockets an empty pocket guilty of attempted theft, although factually impossible for to commit target offense. State v. Smith was an HIV + inmate; During altercation, spat in officers face & bit his hand w/ intent to give officer HIV. RULE: factual impossibility is irrelevant so long as himself had believed it possible to infect officer and had intended to kill him.

LEGAL IMPOSSIBILITY (is defense) Occurs where the intended acts, even if complete would not amount to crime Is a defense b/c crime cant be completed unless it is committed. Covers situations in which s set out to do things they mistakenly believe constitute crimes People v. Jaffe offered to buy stolen goods, but goods had been returned to owner. RULE: cannot be convicted of attempt to receive stolen property knowing it to be stolen if goods he sought to buy werent (in fact) stolen prop; If had completed the crime, he would not have received stolen prop. He could not know it was stolen, which is an essential element of the defense, b/c it was not in fact stolen. US v. Oveido: D sold cop what the cop thought was heroin, but was not. RULE: Must have objective evidence to show criminal conduct. Objective acts performed without reliance on mens rea must show Ds conduct was criminal in nature. MERGER OF FACTUAL & LEGAL IMPOSSIBILITY MPC: People v. Dlugash shot V after friend shot V first. Coroner concluded that V may have been dead @ time of s actions. RULE: A person is guilty of an attempt when, w/ intent to commit a crime, he engages in conduct, which tends to effect the commission of such crime. No defense that att circums were not as believed them to be. While may not be convicted of murdering someone already dead, he can be convicted of attempted murder if he believed V was alive @ time of s attempt. Factual: V factually may have been dead, thus rendering it impossible for to kill him, much as theft from an empty pocket factually is impossible. Legal: legally impossible to kill dead person b/c homicide law only prohibits killing of human being which V was not @ the time. Thus, just as did not realize that prop he recd was legal & unstolen in Jaffe, in Dlugash didnt realize body he shot was not legally a human being.

US v. Berrigan: Lays out definitions of legal and factual impossibility Factual impossibility: occurs when extraneous circumstances unknown to the actor or beyond his control to prevent consummation of the intended crime Legal Impossibility: occurs where the intended acts, even if completed, would not amount to a crime Legal impossibility applies where- (1) the motive, desire and expectation is to perform an act in violation of the law; (2) there is intention to perform a physical act; (3) there is a performance of the intended physical act; and (4) consequence resulting from the intended act does not amount to a crime

MPC APPROACH Rule: Gets rid of the distinction between factual/ and legal ; result intended must be a crime, focus on actors mental state, not on external facts. If intended crime could have been committed had the attendant circumstances been as the actor had believed them to, there is no defense

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MPC 5.01 (1)(a): Liability exists if such a crime could have been committed had the attendant circumstances been as D believed them to be REJECTION OF LEGAL & FACTUAL IMPOSSIBILITY US v. Oveido sold undercover cop what he thought was heroin but was really something else. Conviction of attempted distribution reversed. RULE: Obj acts performed w/o reliance on mens rea must mark s conduct criminal in nature (not so in this case). Oveidos intent should not form the sole basis of criminal culpability.

SOLICITATION
Rule: Person has intended that another person commits the crime. Encourages another to commit a crime. C/L limited to felonies and misdeameanors At C/L, solicitation is a specific-intent offense. The solicitor must intentionally commit the actus reus, with the specific intent that the person solcited commit the target offense. MPC does not deal in concepts of specific and general intent. However, a person is not guilty of solicitation unless he acts with the purpose of promoting or facilitating the commission of the solicited offense.

@C/L: only a crime if thing being encouraged was a crime specific intent
C/L: misdemeanor to solicit someone to commit felony or an act that would breach the peace or obstruct justice.

1.

Courts have differed sharply over the question whether solicitation constitutes an attempt. A view espoused by recent Federal cases holds that it is, if is represents a substantial step under the circumstances. 2. The two significant MPC approaches are i. When combined with other overt acts of preparation that go beyond what would be needed to convict if actor were planning to do the act himself, solicitation can be an attempt; and ii. Solicitation can never be viewed as an attempt, because it is not actors intention to commit offense personally 3. At C/L solicitation was not a crime in itself. American codes for a long time did not recognize solicitation as a crime in itself, but many codes now have general solicitation statute. State v Davis (pg 581) (solicitation is not attempt): and girlfriend planned to have his girlfriends husband killed; D sought help of an individual who referred him to police-Dill; D and Dill arranged to kill g/fs husband and paid $600.; attempt? NO. HELD: Mere solicitation unaccompanied by an act moving directly toward the commission of the intended crime, is not an overt act constituting an element of the crime of attempt; Verbal arrangements are not mere acts of preparation b/c Dill did not commit an act that can be construed as an attempt. US v Church (pg 582) (solicitation is attempt): wanted to kill his wife; s friends reported him to OSI; OSI offered a hitman to kill his estranged wife; gave hitman partial payment; guilty. HELD: Ds conduct in obtaining services , detailed participation in planning and payment constitute a substantial step toward commission of the crime, and establishes the requisite overt act amounting to more than mere preparation. MPC 5.02(1) to counsel, incite, advise, encourage or induce another to commit or join in the commission of any offense, whether that offense is a felony or misdemeanor w/ specific intent that the person solicited committed the crime. Today, retain crime of solicitation, but only to certain serious felonies.

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Offense complete @ time solicitation made; not necessary that person solicited agree to commit crime or do anything in response.

Defenses Impossibility no defense Withdrawal or renunciation no defense (once made, generally no defense that solicitor changed her mind or countermanded her advice or urging). Exemption from intended crime is defense; if solicitor could not be guilty of intended crime b/c of legislative intent to exempt her = defense. (Ex. Minor female could not be found guilty of solicitation of stat rape by urging a man to have sex w/ her b/c could not be guilty of completed crime). Attempt: Mere solicitation is not an attempt to commit crime solicited, unless accompanied by substantial step. Merger applies to solicitation.

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AIDING AND ABETTING: Complicity

2 Theories: (1) A person is accountable for actions of another if he is an accomplice in crimes commission. (2) Hes accountable if conspired w/ another person. General Principles at C/L: 1. RULE: A Person is an accomplice in commission of offense if he intentionally assists another person to engage in conduct that constitutes an offense. 2. Accomplice Liability is derivative in nature. Accomplice obtains his liability from primary party to whom he provided assistance. NO crime of A&A exists b/c accomplice is convicted of same crime committed by primary principal. 3. Assists in offense if he solicits, encourages or commands another person to commit crime or if he aids in its commission. C/L Terminology:

(1) Principal in 1st degreethe person who w/ the requisite mens rea, personally
commits the offense of using an innocent instrumentality. a. an inanimate object b. living, but non-human agent (i.e. dog) c. a non-culpable human being, such as someone who is insane or is unaware theyre doing something wrong Principal in 2nd degreeperson intentionally assists principal in the 1st degree to commit offense & whos actually or constructively present during commission. a. constructively presentclose enough to assist principle in 1st degree during crime (i.e. driving get-away car).

(2)

(3) Accessory before the factperson intentionally assists in commission of the offene,
but whos not actually or constructively present. a. could not be tried before principal prosecuted b. could not be convicted if principal in 1st acquitted. c. Could not be convicted of a more serious crime or higher degree of offense than that which principal was convicted Accessory after the factone who intentionally assists a person he knows has committed a felony to avoid arrest, trial or conviction. NOTE: doesnt assist in commission of crime; rather he assists felon to avoid being brought to justice. Presently all states treat this as separate, lesser offense.

(4)

MODERN RULES Principals: All persons who participate in the commission of any crime, whether they directly commit the act, or aid, abet, advise or encourage its commission, and whether they are present at the scene of the crime or not, are principals. Abolition of Principals: There are no accessories before the fact, and no distinctions are made between principals of the 1st degree & principals of the 2nd. Accessories: Every person whom after a felony has been committed, conceals or aids a principal in such felony w/ the intent that said principal escape arrest & punishment, having knowledge that said principal has committed or been charged w/ such felony, is an accessory. MPC 2.06(1): guilty of any offense committed by his own conduct or conduct committed by another actor for which he is legally accountable. MPC 2.05 (2): Legally accountable for the conduct of another person, when acting w/culpability sufficient for offense, causes innocent or irresponsible person to engage in conduct or (b) accountable by law or statue (c) accomplice of other person in offense MPC 2.06(3): if solicits another to commit crime, then is also responsible for the crime committed by the person solicited. (a) with the purpose of promoting or facilitating the commission of the offense,

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MPC 2.06 (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 omission of the 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. a person who is an accomplice in the commission of conduct that causes a criminal result is an accomplice in the result, thereof, as long as he has the requisite mens rea regarding the result MPC: to be an accomplice in the commission of an offense, the person must: a) solicit the offense; b) aid, agree to aid, or attempt to aid in its commission; or c) fail to make a proper effort to prevent commission of the offense.

DISTINCTIONS BTWN C/L & MPC C/L: Principal must be found guilty first before accessories are convicted. MPC: Accessories may be charged and/or convicted before principal is either charged, convicted or acquitted. MENTAL STATEINTENT REQD C/L: To be convicted as an accomplice, a person must have given aid, counsel or encourage w/ intent to aid or encourage the principal in the commission of the crime charged. Must have mental state required for the commission of the offense MPC: requires that the accessory act w/ at least the same culpability or mens rea of the crime being committed by principal: To be an accomplice, the person must act with the purpose of promoting or facilitating the commission of the offense. In the absence of statute, most cts would hold that the mere knowledge that a crime would result from the aid provided is insufficient for accomplice liability. Need purpose SPECIFC INTENT Hicks v US & Rowe friends; Rowe shot & killed V; witness said verbally encouraged Rowe; convicted of A&A Rowe; Supreme Ct finds 2 errors: (1) jury instructions re A&A: acts or words of encouragement by must have been used by w/ intent of encouraging Rowe. (2) not enough evidence to show there was a previous conspiracy between & Rowe. Held: did not contribute to crime either by word or action & no evidence of any conspiracy or prior arrangement between him & Rowe; therefore, not guilty. Wilson V. People: sets up his friend in burglary: D accuses P of stealing his watch; D makes friend burglarize store with intent to get friend arrested so he could get his watch back. HELD: D lacked mens rea of an accomplice (mental state required for commission of larceny and burglary) since larceny requires specific intent to deprive another of property permanently D could not be liable because he called the cops. Did not intend the result of stolen goods only intended for his friend to be arrested. State v Gladstone: Gladstone gives a guy Thompsons (undercover cop) name and address to buy pot. The dude had some and sold it to the cop. Gladstone was charged with A&A the dealer for the unlawful sale. There is no A&A to sell b/c he has no intent to facilitate the crime. HELD: No nexus between the accused and the party to whom he is charged with A&A and no evidence of prior communications to evidence a conspiracy. RULE: Mere communication to the effect that another may be willing to commit a criminal offense does not amount to A&A. SEE Peoni: to A&A another to commit a crime, it is necessary that the D in some way associate himself w/ the venture, that he participate in it as something he wants to bring about. NOTE: Prosecution had a stronger case to get D on A&A Xs purchase rather than Thompsons sale KNOWLEDGE: for major crimes

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Posner says: Need specific intent (purpose) for a smaller offense, but for major crimes, you need knowledge: MPC is NOT consistent with this rule

US v Fountain: Inmate in handcuffs: Inmate handed knife to another inmate who then killed guard HELD: Held it was unnecessary to prove purpose (intent) for crime rather, knowledge was enough to convict for major crime such as murder. RULE: Purpose is necessary for aiding and abetting lesser crimes, knowledge sufficient for larger crimes like arson and rape People v Laurie: RULE: Purpose is necessary for aiding and abetting lesser crimes, knowledge sufficient for larger crimes like arson and rape FORESEEABILITY Natural and Probable Consequence v Forseeability: Natural and probably consequence: is a stricter standard Foreseeability: Is more broader analogous to a tort standard People v Luparello: 1987: tried to locate his former lover thru Martin, a friend of lovers current husband. told friends he wanted the info at any cost. After Martin failed to provide info to , s friends, w/o present, lured Martin outdoors & killed him. Murder conviction affirmed. HELD: may be found guilty not only for the offense he intended to facilitate & encourage, but also for any reasonably foreseeable offenses committed by the persons he A&A. D was guilty of 1st degree murder (Nat & prob consequences). NOTE: under MPC he would not be guilty because he did not have the purpose. Roy v US: robbed during gun dealing informant approached D to buy gun. D referred informant to gun dealer. Dealer robbed informant instead. HELD in the ordinary course of things refers to what may reasonably ensue from the planned events, not to what might conceivably happen. ATTENDANT CIRCUMSTANCES US v Xavier: giving of a gun to a felon did not know of brothers prior felony conviction and gave him a gun. D was convicted of aiding & abetting an ex-felons possession of firearm. Held: must have knowledge or reason to know (essential element of crime) of felons status as a felon. RULE: No criminal liability for aiding & abetting w/o knowledge or having cause to believe possessors status as felon. Unless theres evidence knew or had cause to believe he was aiding & abetting possession by a convicted felon, has not shown guilty mind reqd. NEGLIGENCE AND RECKLESSNESS State v McVay (negligent ship owner) : D owner of ship, knew boiler was weak, might explode but risked it anyway aiding and abetting involuntary manslaughter. D argued that you cant aid and abet involuntary manslaughter because the killing is unintentional RULE: D is liable for negligent conduct when a result is foreseeable. NOTE: Cant A&A voluntary manslaughter (because it happens suddenly) but CAN A&A involuntary manslaughter Consistent with MPC 2.06 (4) People v Russell: V, public school principal, went looking for student in projects and was killed by gunfire. Held: All 3 s acted w/ mental culpability required for depraved indifference murder, and that they intentionally aided & encouraged each other to create lethal crossfire that caused death of V. MPC 2.06 (4) See also People v. Abbott (drag racing) and Moon drag racing; entered into intersection illegally & s vehicle struck & killed 3rd party. Held: (Abbott) found guilty for intentionally participating w/ Moon in an inherently dangerous and unlawful activity; therefore shared Moons culpability. RULE: Person is responsible for criminal acts of another where he aids the commission of act w/ requisite criminal mental capability reqd for commission of crime. MPC 2.06 (4) HOWEVER, See State v. Ayers (pg 626) , the gun seller, sold a gun to a 16 yr old; gun accidentally goes off at a party.

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 found guilty at trial ct for involuntary manslaughter; conviction reversed b/c it must appear that act was done in furtherance of common design. State v Travis (pg 627) Motorcycle case: D allowed an inexperienced motorcycle rider to pilot his motorcycle (which D knew to be defective). They struck a small child while the D was riding on the back of the motorcycle. The court affirmed the D conviction as aiding and abetting in involuntary manslaughter. UNLIKE State v. Ayers (pg 626) the D in this case was present at the time the harm occurred and encouraged the use that result in the harm. In this way he encouraged the behavior that led to the harm. RELATIONSHIP BTWN LIABILITY OF PARTIES 1. Accomplice liability doesnt involve liab on 1 party for wrongs of another solely b/c of relationship btwn parties. Liab requires intentional conduct by 2ndary actor. State v. Hayes and Hill agreed to burglarize store. Hill pretended to agree in order to obtain arrest of . Held: not guilty b/c & Hill did not have common motive or design. The motives were dissimilar, since Hill had no intention to burglarize. Thus, the act by Hill cannot be imputed to . Vaden v. State: Undercover cop gets to take him hunting illegally. Cop kills 4 foxes & charged w/ 4 cts of killing foxes out of season. Held: not guilty b/c it is inconsistent w/ due process principles to depend upon the good aim of arresting cop. Taylor v. CW: aided in committing abduction of boyfriends child. Held: could be found guilty under a complicity theory even if the individual she was A&A did not commit a crime; defense of legal excuse (impossibility) only extended to boyfriend; it was unavailable as a defense to .

2.

3. 4.

Abandonment of Accomplice If accomplice abandons & undoes his assistance, he may not be guilty. He must make bona fide efforts to neutralize effects of his assistance. II. Assistance A. A person assists in an offense, and thus may be an accomplice in its commission, if he solicits, encourages, or commands another person to commit the crime, or if he aids in its commission.(psychological, physical, or omission: can be guilty as an accomplice if, with the required mens rea, he fails to stop the commission of the offense when he has a duty to do so) B. A person who is present at the scene of a crime, even if he is present in order to aid in commission of the offense, is not an accomplice unless he assists in the crime. Hicks

III. Amount of Assistance Required A. any aid, however trivial, is sufficient for being held as an accomplice. B. defendant must knowingly act or communicate with the principal in furtherance of the crime. MPC requires that the actor have the purpose of promoting or facilitating the commission of the crime. (D not guilty for providing map to marijuana seller)Gladstone IV. Accomplice Liability - Mens Rea A. Common Law: An accomplice must possess two mental states: 1. intentionally engage in the acts of assistance; and 2. has the same level of culpability as the principal as to the result (intent for P to commit the crime) (eg. If S gives P a gun to shoot V, and S knows gun is not loaded, then S is not guilty of A&A cuz he had not intent as to the result) (eg. for murder, accomplice must have purpose intent)

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B.

Detectives: a person who aids in the commission of a crime to apprehend the principle is not an accomplice because he does not have the required mens rea to commit the specific offense. Wilson must have intent w/respect to result (even if the words give effect to assisting, D must specifically intend the effect, (D must egg him on!) In addition to intent, mere presence at crime is not enough, need either 1) some act of assisting (giving a plan, a weapon), or 2) some prior agreement of assisting Hicks MPC 2.06(3)(a): to be an accomplice, must act with purpose of promoting or facilitating the offense

C.

D.

II. Tendency away from specific intent std toward knowledge and evenrecklessness: For accomplice, knowledge as to result is enough. Since its a major crime, allows lesser culpability for accomplice. (but C/L disagrees, D needs same culpability as principle) (inmate convicted of A&A to kill prison guard by supplying knife, principal needed purpose intent, D only needed knowledge) Fountain Natural and Probable Consequences doctrine: Luparello By intentionally encouraging the prohibited act D is responsible for all subsequent reasonably foreseeable consequences (D convicted of A&A murder for telling friends to get info at all costs, they killed victim)and also held: recklessness w/ respect to result is enough to be guilty of A&A NOT LIABLE FOR CO-FELON Common Law: must have same mens rea w/ respect to the result that is sufficient for commission of the offense.(Hicks) Anderson & Morris: if co-defendant goes beyond what was agreed upon, D is not liable for the consequences of his unauthorized act. MPC 2.06 (3) agrees (must have purpose of promoting the offense) Heinlein 3 Ds raped woman, she slapped one of em and he killed her. Causation view, adopts Canola Agency Theory, the unanticipated actions of a felon not in furtherance of the common purpose could not be attributed to D (opposite view of Luparello) Cabaltero - not liable cuz not killing is not in furtherance of a common purpose when cofelon is pissed and shoots panicking lookout boy. LIABLE FOR CO-FELON Brigham- D is guilty of A&A even if he tries to stop the principal from committing the crime, and the principle shoots the wrong victim. Held since D was aware of Ps hard-headed nature, he is liable for all reasonably foreseeable consequences of Ps acts. By selecting an agent, D is guilty of murder even though his mens rea might be recklessness. We impute the intent to kill. (POLICY: discourage people from selecting and hiring uncontrollable agents to kill) Luparello - D takes on identity of principal and is responsible for all reasonably foreseeable consequences of principals acts

A.

crimes of recklessness or negligence 1. Issue: Whether its logically possible for a person intentionally to assist in a crime of reck or neg? If primary party unintentionally commits a crime, how can it be said that a person intentionally assisted in an unintentional offense? 2. eg. if P commits manslaughter, is it correct to say that A intentionally aided in that offense? If so, we are really saying that A intended the death, which would make the offense murder.

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3.

rule: most cts allow liability because a party can act with the level of culpability required in the definition of the offense in which he assisted (second mens rea requirement) eg. D offers taxi driver huge tip to get him to airport fast. Driver negligently runs over kid. D is also guilty for manslaughter. First mens rea: words of encouragement were intentionally expressed. Second mens rea: arguably, offering a huge tip constituted criminal negligence.

G.

Mens Rea as to Attendant Circumstances 1. Youden, solicitors sold house in excess of maximum price, but not guilty cuz did not know builder would charge an unlawful price. Held: D must actually have knowledge that the facts constitute an offense before guilty of A&A. NO AIDING AND ABETTING LIABILITY FOR STRICT LIABILITY IF D DID NOT KNOW THAT THE FACTS CONSTITUTE THE OFFENSE. MPC vague as to whether purpose requirement applies to attendant circumstances. Cts decide these issues as matter of public policy. SL HYPO: D2 informed D1 about V, saying V would make an interesting sex partner. D2 thinks shes over 17, but she is not. Is D2 guilty of aiding and abetting? No, under Youden, no liability if D did not know the facts that constitute an offense. Is D2 guilty of attempted statutory rape? Yes, the intent for attempt is the same intent required for the commission of the offense -- MPC 5.01(1), and since no intent is needed to be guilty of SL, he had the intent. (MOF is not a defense to SL)

H.

Mens Rea as to Result 1. McVay Ferry explosion convicted of manslaughter. Held: Aider and Abbeter can be guilty of principals negligence, (but how can negligence should have known be foreseeable?, stretches A&A liability beyond its theoretical limits. It was ruled possible for D to intentionally direct and counsel the grossly negligent act by recklessly hiring a negligent worker, and its foreseeble death would result. Sufficient to convict as an accessory before the fact. 2. Abbot D and K drag raced. K hit Vs car, killing V, P1 and P2. Charged w/criminally negligent homicide. The majority rule is that conviction of an accomplice in the commission of a crime of recklessness or negligence should be permitted as long as the secondary has the two mental states: 1) the intent to assist P to engage in the conduct that forms the offense, and 2) at least the level of culpability that is sufficient for the commission of the offense. DRAG RACING CAUSATION Prosecutor argue: swerving was foreseeable, a part of the original plan, drag racing is a concerted action. Thus he was proximate cause.Root (held not guilty cuz not foreseeable, guy acted independently) McFadden causation theory, recklessly engaged in act that pressured him to race and caused the result D argue: cts tend to limit liablity if death is one of the VICARIOUS LIABILITY Prosecutor Argue: D can be liable for 3rd party death under vicarious liability theory for joint participation McFadden --but cannot be vicariously liable for dragracer killing himself(use prox.cause theory to find liability) D argue D not guilty cuz driver killed himself McFadden

AIDING AND ABETTING Prosecutor argue: issue is whether mens rea w/respect to result (..conduct, if unforeseen 3rd party death), even though competitor does not foresee the result Abbot: held a D can be liable if has culpable mental state (N: shouldve known it was dangerous) and could foresee death of 3rd party caused by racing. D was negligent in assisting and encouraging Abbot to drive recklessly. By intentionally aiding Abbot in unlawful use of vehicle, he

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shared his culpability. McVay: held guy who hires boiler worker is reckless, and its foreseeable that death would result since drag racing could not have happened without D, we may infer that its purpose w/respect to conduct and negligence w/respect to result D argues: If primary party unintentionally commits a crime, how can it be said that a person intentionally assisted in an unintentional offense?

competitors because he acted independently, took a risk not foreseen by D, thus his act is a superceding cause, and D is not proximate cause Root

FM rule: if drag racer kills 3d party, bystander will be protected cuz only killings in furtherance of a felony are chargeable (Canola) Russian Roulette Aiding and Abetting: more foreseeable, survivors almost always convicted of invol. Manslaughter or 2d deg murder depending on how game is played. (issues: were they dependent actors, could D foresee the harm?, public policy to hold D liable and prevent Russian roulette, vicarious liability theoryliable for acting vicariously thru V and creating a homicidal risk, FM Rule, Causation) C. Limits to Accomplice Liability 2.06(6) 1. D is not an accomplice if he is the victim of the offense 2. D is not an accomplice if his conduct is inevitably incident to the commission of the offense (buyer of narcotics is not an accomplice to the seller) 3. code recognizes defenses of abandonment if D terminates his complicity before S commits the offense and if D (1) wholly deprives his complicitous involvement of its effectiveness; (2) gives timely warning to the police; or (3) attempts to prevent P from committing the offense.

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Exculpation/Self-Defense
Justification (focuses on the act) a legal right to act or at least not wrong to act under certain circumstances. (Self-defense) Excuse (focuses on the actor) an attempt to show that the actor is not morally culpable. (insanity) Self Defense: At C/L A person who is not the aggressor is justified in using deadly force upon another if he (1) reasonably believes that such force is (2) necessary to protect himself against the (3) imminent use of unlawful force by the other person. The force must be (4) proportional. In some jurisdictions, a person may not use deadly force if he is able to retreat. C/L Nondeadly Force An individual w/o fault may use such force as reasbly appears necessary to protect herself from imminent use of unlawful force upon herself. No duty to retreat before using nondeadly force, even if retreat would result in no further harm to either party. Deadly Force: May use in self-defense if (1) she is w/o fault, (2) she is confronted w/ unlawful force, and (3) she is threatened w/ imminent death or great bodily harm. Without Fault: Person who has initiated an assault or provoked the other party will be considered the aggressor. Unlawful Force: Attacker must be using unlawful force (i.e. that constitutes crime or tort). Threat of Imminent Death or Great Bodily Harm: must reasbly believe she is faced with imminent death if she doesnt respond w/ deadly force. Must be present danger. Necessity: except for the retreat exception, deadly force isnt justified unless its necessary. Duty to Retreat: (1) No retreat is necessary unless it can be made in complete safety. (2) No retreat is necessary in several special situations: (a) where attack occurs in Vs home; (b) where attack occurs while V is making lawful arrest; and (c) where assailant is in process of robbing V. ***NOTE: Contrary to C/L, most American jurisdictions no longer require to retreat before using deadly force. HOWEVER, a substantial minority of states still adhere to C/L rule, requiring retreat before resort to the use of deadly force in self-defense. See State v. Abbott EXCEPTIONS: Castle exception: No retreat from home; if V of rape or robbery, or is a police officer. Imperfect Self-Defense: Honest but unreasonable belief that deadly force is necessary; involuntary manslaughter because no malice. See People v. Goetz shot youths on NYC subway train. guilty of attempted murder. RULE: The use of deadly force is permitted only when person reasonably believes that aggressor is using or about to use deadly physical force, or is committing or attempting to commit a robbery or other such violent crime.

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KEY ISSUES WHEN LOOKING FOR SELF DEFENSE AS A JUSTIFICATION:

Necessity component: deadly force can only be used only to the extent necessary Imminent: must be in response to an imminent threat and until then the use of deadly force is
premature Proportionality: force must be proportional in relation to the harm threatened Reasonable Belief Standard a person is justified in using deadly force to protect himself if he has reasonable ground for believing, that such force is necessary to repel an imminent attack. This standard attempts to balance an objective reality of how a reasonable person should act under similar circumstances and the subjective mental state of the actor

People v. Goetz (defense) (reasonable belief standard) D approached on subwayby several youths who asked him for $. D who had been attacked years before, subjectively believed he was being robbed and pulled a gun. Shot at youths several times. Rule: A person is justified in the use of deadly force if, objectively, a reasonable man would, in his position, believe he was in danger of life or physically being. (NY Law didnt follow MPC MPC 3.04 (2) (b): The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat (MPC allows a subjective standard) NY: inserted the word reasonably believes into its statute to make it supposedly objective standard. Rationale: This standard is an attempt to balance an objective reasonable person standard and a subjective state of mind of the actor. Court looked at the fact he was mugged before. In Contrast: People v. Johnson: D was late night after party most people had been drinking before and D and V had never met before and no evidence of ill-will between them D had a gun and V struck him in the back of the head and D turns around shoot him 7 times. Holding: Force was not proportional to the threat and the belief of the imminent threat was not reasonable. D Guilty MPC

3.04: A person is justified in using deadly force against another if he believes that such force is immediately necessary to protect himself against the use of unlawful force by such other person on the present occasion. (deadly force, serious bodily harm, threat of rape, robbery or kidnapping). Supposedly, MPC relaxes the imminence requirement @ common law, however, whats the real difference between immediately and imminence, Jones kind of agrees. Exceptions: even if deadly force is otherwise permitted, its impermissible if: (1) actor is aggressor (2) non-agressor did not retreat when he could have avoided the need to use deadly force.

RETREAT: MPC 3.04 (b) (ii) retreat rule (MAJ): Deadly Force is not justifiable when the actor knows that he can avoid the necessity of using such force with complete safety by retreating C/L retreat rule: About States require that one retreat when possible. True Man Doctrine or No-Retreat Rule: A non-aggressor is permitted to use deadly force to repel an unlawful deadly attack, even if he is aware of a place to which he can retreat in complete safety.

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o Castle Exception: In jurisdictions that require retreat before using deadly force, an
exception is commonly made when one is being attacked in his own home. Never been law that a man assailed in his own dwelling is bound to retreat.

State v. Abbott: (RETREAT) shared driveway w/ neighbors. made doorstop to keep garage door from swinging onto neighbors land. V objected & fight ensued. s conviction reversed. RULE: A person has a duty to retreat before using deadly force to defend himself, but he need only retreat where he knows that he can do so with complete safety. MPC: deadly force not justifiable if actor knows he can retreat with complete safety by retreating; must consider all circumstances of incident in determining whether should have retreated. Duty to Retreat 1. triggered when threat of deadly force is made 2. Did Karate guy intend to use deadly force? (deadly force is defined in Abbot and MPC 3.11 as force which the actor intends to use to kill or inflict serious bodily harm) 3. Rule: Prior to using deadly force, actor must consider retreating Abbot 4. Exceptions: a) victim must know they can retreat with complete safety b) no duty to retreat if you are in your dwelling (Tomlins) 1. 2. E. Required to retreat when confronted by co-occupants (Shaw) No duty to retreat if no time to contemplate duty to retreat

Argue no duty to Retreat even if safe 1. policy: to require an innocent person to retreat would have a counter-utilitarian effect, to allow the wrongdoer to win, it would embolden aggressors, and innocent people might be killed while escaping

Deadly Force in General:

deadly force is force used for the purpose of causing or that the actor knows to create a
substantial risk of causing death or serious bodily injury. Permissible Use: MPC definition (above) Impermissible Use:

1) Deadly Force by Aggressors: the MPC prohibits the use of deadly force by a person who,
with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter. a. Exceptions i. Sudden Escalation - If D unlawfully starts a non-leathal conflict, he does not lose his privilege of self defense if V escalates the situation into a lethal assault ii. Withdrawal - Aggressor who, in good faith, effectively removes herself from fight, and communicates to other person her desire to do so, regains her right to use self-defense. US v. Peterson: V and 2 men drove into rear of s house to take windshield wipers. came out of house; verbal fight. got gun and warned V & others not to move. V got wrench & came closer. shot V in face. convicted of manslaughter. RULE: Aggressor may not claim self-defense if he does not first withdraw from conflict; necessity could have been averted. Only in event that communicates to his adversary his intent to withdraw & in good faith attempts to do so is he restored to his right of self-defense.Jones Hypo: A attacks B with his fists, B defends himself, and manages to subdue A to the extent of pinning him to

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the floor. B then starts to batter As head savagely against the floor. A manages to rise, and is still being attacked by B, so A in fear uses a knife and kills B. Under MPC: o B is entitled to defend himself by using moderate non-deadly force but if B exceeds this boundary of necessary force reducing A to a state of helplessness o A is entitled to defend himself against it and if he believes he is in danger of death or serious bodily harm and can not retreat safely he may use deadly force

DEFENSE OF DWELLING
Defense of property: C/L: person justified in using non-deadly (never deadly) force to defend his real or personal property if: 1. defender is in lawful possession of the property or is in fresh pursuit of the dispossessor 2. defender reasbly believes that non-deadly force is necessary to prevent imminent & unlawful dispossession of the property 3. in some jurisdictions, the defender must ask the dispossessor to desist, unless it would be futile or dangerous to do so 4. defender uses no more force than reasbly appears to be necessary to prevent the dispossession MPC: authorizes to use deadly force against V if he believes that: 1. V is attempting to commit a specified property-related felony; 2. V previously used or threatened to use deadly force against or another person in s presence; AND 3. the force is immediately necessary to prevent commission of offense. Defense of habitation Narrow C/L: justified in using deadly force against V if he reasbly believes that: 1. V intends unlawfully & imminently to enter s home; 2. V intends to commit a felony inside or cause bodily injury to occupant; AND 3. deadly force is necessary to prevent the entry.

Very early C/L from Ceballos: differs in respect that deadly force isnt permitted unless reasbly believes that V will commit an atrocious felony inside dwelling. Atrociousviolence (threat or use of deadly force) & surprise (self-help reqd, necessity) o Early Common Law (the broadest): a home-dweller may use deadly force upon another person if he reasonably believes that such force is necessary to prevent an imminent and unlawful entry of his dwelling. MPC: person may use deadly force against V if he believes that: 1. V is seeking to dispossess him from dwelling; 2. V has no claim of right of possession of property; AND 3. such force is immediately necessary to prevent dispossession.

Use of Spring Guns: deadly force is allowable in felony prevention but only if police intervention is not an option (?) C/L: person may use mechanical device to inflict deadly force where an intrusion is in fact such that a person, were he present, would be justified in taking the life or inflicting the bodily harm w/ his own hands. (User acts at his peril; deadly force must be necessary; reasble appearance wont suffice).

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MPC 3.06 (5a): use of deadly force does NOT extend to any mechanical device thats intended to cause death or serious bodily harm. Justification extends the use of a device for the purpose of protecting property only if: (a) the device is not designed to cause or known to create a substantial risk of causing death or serious bodily harm; and (b) the use of the particular device to protect the property from entry or trespass is reasonable under the circumstances, as the actor believes them to be; and (c) the device is one customarily used for such a purposed or reasonable care mistake to make known to probable intruders the fact that it is used. People v. Ceballos: had been robbed before. Set up trap guns. V & friend broke in and V shot in face by trap gun. guilty of assault w/ deadly weapon. RULE: When crime doesnt create a reasble fear of serious bodily injury, no cause for using deadly force. EXCEPTIONS: when intrusion is such that the person, if present, could inflict harm with his own hands. That exception should not apply to criminal cases, however, b/c under it liability depends on fortuitous events, and b/c use of trap guns presents unacceptable danger to children and firefighters, etc.

CRIME PREVENTION OF FELONY

Nondeadly Force: privileged to use force to the extent that it reasbly appears necessary to prevent a felony, riot, or other serious breach of the peace. Deadly Force: Could be used to prevent commission of any felony, but modern view is that deadly force may be used only if crime is a dangerous felony involving risk to human life. (includes robbery, arson, burglary of dwelling, etc).

USE OF FORCE TO EFFECTUATE ARREST

By Police Officer: use of this force constitutes seizure. Must be reasble. Deadly force only reasble when felon threatens death or serious bodily injury and deadly force is necessary to prevent felons escape.

Durham v. State: (arresting officer) arrested Long (v) for illegal fishing (misd). Long attempted to escape in shi boat. pursued him and while Long was beating with and oar, D shot him in the arm. RULE: While a police officer is not justified in killing or inflicting great bodily harm in attempting to arrest one accused of a misdemeanor, where the accused resists arrest the officer may repel such resistance with such force as is necessary, short of taking life, and may seriously wound or kill the accused if necessary o prevent the accused from seriously wounding or killing him. Tennessee v. Garner - V was committing a burglary when police arrived. He escaped through the back. He was not armed. The police shot him in the head. Rule: police cant shoot a non-violent felon if he possesses no threat to the community By Private Person: same right to make arrest as police officer, except private person has a defense to the use of deadly force only if the person harmed was actually guilty of offense for which arrest made. Not enough that it reasbly appeared that person was guilty. Has privilege to use nondeadly force to make an arrest if a crime was in fact committed and the private person has reasble grounds to believe the person arrested has in fact committed the crime. Private citizens can use deadly force when the felon flees even though the felony committed was not with a deadly force. As to be in hot pursuit must maintain eye contact with the felon to use deadly force

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DEFENSE OF OTHERS C/L (general rule): A person is justified in using force to protect at 3rd party from unlawful use of force by an aggressor. The intervenors right to use force in such circumstances paralles the 3rd partys right of self-defense; that is, she may use force when, and to the extent that, the 3rd party would apparently be justified in using force to protect herself. - a limitation used to be that you had to be related to 3rd party, not really enforced today. MPC: Under MPC, subject to retreat provisions discussed in the next paragraph, an intervenor (D) is justified in using force upon another person in order to protect a 3rd party (X) if 3 conditions are met : (1) D uses no more force to protect X than D would be entitled to used in self-protection, based on the circumstance as D believes them to be; (2) under the circumstances as D believes them to be , D would be justified in using such force in selfdefense; and (3) D believes that her intervention is necessary for Xs protection.

INTOXICATION

May be used as defense whenever it negates the existence of an element of crime. Involuntary Intoxication (defense to all crimes, incl strict liability) If results from taking of an intoxicating substance: (1) without knowledge of its nature (or existence) (2) under direct duress imposed by another, or (3) pursuant to medical advice while unaware of substances intoxicating effect. May be treated as mental illness, in which case is entitled to acquittal if insanity test of jurisdiction is met. Relationship to insanity: Inv intox & insanity are 2 separate defenses. However, continuous, excessive drinking or drug use may bring on actual insanity. Thus, may be able to claim either an intoxication or an insanity defense. HOWEVER, Inv intox may be treated as mental illness, in which case is entitled to acquittal if, b/c of the intox, she meets whatever test the jurisdiction has adopted for insanity. Regina v. Kingston: spiked coffee causes to sexually abuse boy. RULE: If intent is formed prior to intoxication, even if involuntary, it is NOT a defense. Involuntary Intoxication negates mens rea & is a complete defense.. Voluntary Intoxication (Excuse for specific intent crimes) Self induced intoxication is not a true defense to a crime. Indeed, because intoxicants reduce a persons ability to control his aggressive feelings and antisocial impulses, intoxication serves as an anti-defense. The act of getting intoxicated enhances, rather than mitigates, culpability. If results from intentional taking w/o duress of a substance known to be intoxicating. Defense to Specific Intent Crimes: may be offered as defense if charged with crime that requires purpose (intent) or knowledge, to establish that the intoxication prevented from formulating required mens rea. Defense not available if purposely becomes intoxicated in order to est a defense. No Defense to Crimes Requiring Malice or Recklessness: no defense for crimes requiring malice, recklessness, or negligence, or crimes of strict liability. Not a defense to C/L murder, which requires a mens rea of malice aforethought. Roberts v. People: convicted of assault w/ intent to murder. testified that he was too drunk at time of act to have reqd intent. RULE: Voluntary Intoxication is a legitimate defense to a crime requiring (specific) intent. If s drunkenness was so extensive that s faculties were incapable of entertaining the necessary intent, he will be excused (not guilty). HOWEVER, if

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drunkenness was such that he could not appreciate right and wrong, and yet still formed intent guilty. HOWEVER, State v. Stasio voluntary intoxication will not excuse criminal conduct. RULE: Voluntary intoxication is not a complete defense. Voluntary intoxication not a defense if it can be shown that premed & delib was formed. PUBLIC POLICY ARG: One who voluntarily becomes intoxicated should not be insulated from criminal responsibility. Distinguishable People v. Hood , resisting arrest, convicted of assault w/ deadly weapon characterized as simple assault general intent. RULE: Assault is general intent crime intoxication is no defense guilty.

DEFENSES 1. Justification: (e.g. self-defense) one that indicates that s conduct was affirmatively good, or at least not wrongful. NOT GUILTY 2. Excuse: (e.g. heat of passion) one that indicates that although actor committed the elements of offense, and although his actions were not justified, he is not to blame for his conduct. REDUCTION IN DEGREES/ SENTENCE

NECESSITY
Conduct otherwise criminal is justifiable if, as a result of pressure from natural forces, the reasbly believed that the conduct was necessary to avoid some harm to society that would exceed the harm caused by the conduct. OBJECTIVE TEST. C/L: in general, a person whose conduct would otherwise constitute a crime acts justifiably if: 1. actor must be faced w/ a choice of evils, and he must choose the lesser of the two evils; 2. actor must be responding to imminent harm (or at least to harm which would appear imminent to a reasble person); 3. actor must reasbly anticipate that his actions will abate the threatened harm; 4. many cts & statutes provide that actor must not be at fault in creating the necessity. MPC: 1. actor must believe that his conduct is necessary to avoid harm to himself or to another (rejects requirement that harm must be imminent). 2. the harm that the actor seeks to avoid must be greater than that sought to be avoided by the law prohibiting his conduct. 3. if actor was reckless or negligent in bringing about the necessity, the defense is unavailable in a prosecution for any offense for which recklessness or negligence is suff to prove guilt.

Regina v. Dudley & Stephens: (cannabalism) no justification for taking anothers life to save your own when no assault has been committed; no absolute necessity to save ones own life; not justified. ( s convictions later overturned by Crown). Differences: (1) Necessity: involves pressure from physical or natural forces (2) Duress: involves human threat

DURESS
D compelled to act involuntarily I. C/L Elements of the defense (Romero)

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Nature of the Threat 1. must be force likely to cause death or serious bodily harm 2. the force threatened must be imminent C. absence of alternatives for D (no way to avoid harm threatened but to accede to the threat) D. nonfault of D (for being in the coerced situation) E. Duress defense does not apply to offense of murder A. II. Toscano: Rule: duress is a defense to a crime if D engaged in conduct because he was coerced to do so by the use of threat or unlawful force against him or another which a person of reasonable firmness would not have been able to resist under the circumstances. Does not need to be in response to imminent threat. Intolerable Prison Conditions A. Originally, courts did not permit inmates to claim that prison conditions justified or excused their escape. Fear was that permitting such claims would incite more escapes. B. Modern view allows a limited defense. Do not fit neatly either defense: (1) Duress: The escape cases are not like the typical duress claim, in that nobody ordered the prisoner to commit the crime of escape. Also, the decision to escape usually is a deliberate one, under circumstances that suggest greater choice is involved than in the ordinary case of duress. (2) Necessity: this defense is primarily used in cases of natural emergencies, rather than with human threats; in many prison escape cases, however, the inmate flees because of a threat of physical or sexual assault. Moreover, the inmate may not be claiming that escaping was the right thing to do, but rather that he should not be blamed for escaping under the circumstances. (3) US v. Bailey: requiring that the escapee turn himself in after the escape, once the prison condition has lost its coercive force. If he fails to do so, he may not claim the defense. (4) People v. Unger: More lenient, and treat the escapees failure to turn himself in as one factor to be considered by the jury in determining whether the escapee should be acquitted. MPC 2.09 A. Nature of the coercion: D must have been coerced to commit the crime by the use, or threatened use, or unlawful force against him or another B. C. D. E. F. Force need not be deadly under the code. Any physical harm will suffice (but not economic or reputational harms) Force must be unlawful and come from a human (not natural conditions) a person of reasonable firmness in Ds situation must have been unable to resist the coercion excuse is applicable in homicide cases Blameworthiness of coerced actor: defense is not available to a person who recklessly placed himself in the coercive situation. However, if he was negligent in doing so, he may claim duress for all crimes except those based on negligence MPC 2.09(2)

III.

I.

EXCUSABLE. not guilty of an offense, other than homicide, if he performs an otherwise criminal act under the threat of imminent infliction of death or great bodily harm, provided that he reasbly believes death or harm will be inflicted on himself or on a member of his immediate family if he does not perform such conduct. Threats to harm any 3rd person may suffice to est defense of duress. C/L:

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1.
2. 3.

4.
MPC:

must prove that he was the V of an unlawful threat to immediately kill or seriously injure him or another person the coerced actor must reasbly believe that there is no way to avoid the harm threatened except to accede to the threat the coerced actor must not be at fault for being in the coercive situation the duress defense does not apply to the offense of murder

1.

must have been coerced to commit the crime by the use, or threatened use, of unlawful force by X, against him or another 2. a person of reasble firmness in s situation would have been unable to resist the coercion. 3. defense is unavailable to a person who recklessly placed himself in the coercive situation. However, if he were negligent in doing so, he may claim duress for all crimes except those based on negligence. Differences: (3) Necessity: involves pressure from physical or natural forces (4) Duress: involves human threat BATTERED WOMANS SYNDROME

State v. Kelly: gets into an argument in the middle of the street w/ her husband; husband walks away and then comes back towards her; scared grabs a pair of scissors from her purse and stabbed and killed her husband and raised self-defense b/c she was repeatedly beat by her husband; trial ct would not allow expert testimony re: BWS. HELD: Testimony is appropriate to show that s use of deadly force was reasonable, or that she truly believed it was reasonable under the circumstances. State v. Norman: was a battered wife; called cops to arrest her husband after an incident, but the cops refused to arrest him; tried to kill herself and when the paramedics came her husband tells them to let her die; husband chased back into the house by cops but they refuse to arrest; went to social services to seek help, but husband came there and dragged her away beat her and burned her with cigarettes; husband refused to feed her and made her sleep on the floor; husband went to sleep and killed him. HELD: guilty. not given BWS instruction on the grounds that imminence was not present. In a homicide prosecution in which a battered woman has killed the abuser in non-imminent circumstances, a defense lawyer may seek to introduce evidence that the woman suffers from BWS, a condition that causes her to sink into a state of psychological paralysis and to become unable to take any action at all to improve or alter her situation: State v. Kelly. Purpose of the evidence to show subjective belief and reasonableness of the belief.

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Common law murder is the killing of another human being by another human being with malice aforethought. Manslaughter is the unlawful killing of a human being by another human being without malice aforethought. A person is not guilty of an offense unless his conduct includes a voluntary act. A voluntary act is a willed muscular contraction or bodily movement by the actor. In this case, there is no evidence that A acted involuntarily, i.e. as the result of a seizure, unconsciousness, etc. Therefore, when he pulled the trigger, this voluntary act suffices. At common law, the mens rea of murder is malice aforethought. Aforethought means little more than that the malice existed at or before, rather than after, the homicide. Malice exists if A acted with any one of four mental states: 1. intent to kill; 2. intent to commit serious bodily harm; 3. reckless indifference to the value of human life; or 4. intent to commit a felony, during the commission or attempted commission of which a death accidentally occurs. Defense: provocation/EED. A will argue that he acted in the heat of passion and that, therefore, he is guilty at most of manslaughter. [discussion of manslaughter]. Under the provocation doctrine, a person who intentionally kills another person is guilty of manslaughter if he kills: 1. in an angry or overwrought emotional state; 2. as a result of adequate provocation; and 3. before the actor had reasonable time to cool off. The common law believes that under such circumstances, the requisite malice is not present, and that the defendant is partially excused for the homicide. The provocation doctrine only applies if the defendant acts before a reasonable person in his situation would have had time to calm down. At common law the killing had to occur almost immediately. Today, however, The facts show that A acted in rage. To be guilty of an offense, the prosecutor must show that but for As voluntary act of pulling the trigger, B would not have died when he did. In the instant case, A was the actual cause of the death. Nor is there any serious issues of proximate causation. Between the time that A shot B and the time B died, no other cause intervened. A was the direct cause of the death. A may raise one defense: self-defense. A may justifiably kill in self defense if: 1. he was not the aggressor at the time of the conflict; and 2. he reasonably believed that the force was necessary to combat imminent, unlawful, deadly force. An aggressor is the person who commits an unlawful act reasonably calculated to produce a deadly conflict. On the other hand, the term aggressor is usually not applied unless the person commits or threatens to commit some violent act. To be an accomplice, the ordinary rule is that the person must intentionally assist with the purpose of promoting or facilitating the offense. As culpability is mitigated as a result of the events, as his ability to control himself was impaired. A defendant is guilty of first degree murder where he commits a homicide (the killing of one human being by another) with the intention of causing the victims death or serious bodily harm, and such killing was premeditated and deliberate. Second degree murder since A evidenced a wanton mens rea (consciously engaged in conduct that he knew, or should have known, posed a high probability of death or serious injury to other human beings) by shooting Acted reckelessly (engaged in conduct that posed substantial risk of death or serious bodily injury to other human beings) by The crime of attempt occurs when the defendant has taken a substantial step toward completing the target crime with the intent to commit that crime. An attempt occurs where the defendant has

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deliberately engaged in conduct for the specific purpose of committing a crime, and such conduct represents a substantial step towards culmination of it. Under the FM rule, if a homicide occurs during and as a result of the defendants perpetration of an independent, inherently dangerous felony, the defendant is deemed to have the mens rea for second degree murder. The crime of solicitation occurs where the defendant requests or encourages another to perform a criminal act with the intent to induce the latter to perform the crime. Where an unforeseeable cause or factor intervenes between the defendants conduct and the victims harm, the defendants action or nonaction is not the proximate cause of the victims misfortune.

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