Legislative and Judicial Functions

I. General Information Theoretical - How much emphasis should the criminal justice system place on rehabilitation? o Frank Remington criticized Van den Haag and Wilson's books which advocated the complete elimination of the parole board, and the minimization of discretion on the part of the sentencing judge. He agrees with Van den Haag and Wilson that the liberal War on Crime's emphasis on rehabilitation and poverty as a root cause of crime was misguided But he thinks that a fixed sentence system would lead to overcrowded prisons, because politicians will make prisons sentences longer, and judges/parole boards won't have discretion to limit this. He thinks a better approach would be to treat different classes of criminal differently, according to the seriousness of their crime, and the likelihood of

committing future crimes. (ex. so there would be fixed sentences for habitually violent murderers, but a drug user who steals to further his drug habit could get parole by showing that he is no longer on drugs) Result: Wisconsin's Bifurcated Sentence System (Truth in Sentencing - p496-497) o imprisonment is divided between (1) a term of confinement which is served in full and (2) a term of extended supervision o judge retains discretion to impose any sentence within the legislatively authorized range. o there is no parole

What is a crime? 939.12 conduct prohibited by state law and punished by fine or imprisonment or both. What is the difference between a felony or a misdemeanor?

939.60 distinction between felony and misdemeanor 973.02 place of imprisonment Felony is more serious leads to state prison (more than 1 year) Misdemeanor Less serious fines or served in county jail (less than 1 year)

When are you a party to a crime? 939.05 Party to a crime o if you directly do it o If you conspire or agree o if you aid and abet Penalty system in Wisconsin Felonies (class and maximum punishment) -939.50 o A - life o B - 60 years o C - 40 years or $100,000 or both o D - 25 years or $100,000 or both o E - 15 years or $50,000 or both o F - 12.5 years or $25,000 or both o G - 10 years or $25,000 or both o H - 6 years or $10,000 or both o I - 3.5 years or $10,000 or both Misdemeanors o A - 9 ms or $10,000 or both o B - 90 days or $1000 or both o C - 30 days or $500 or both

The Criminal Code: Purpose of Codification (Platz: WI Law Review, 1956, p. 12) (1) Simplify the language (2) Modernization (3) Codification by incorporating case law into statutes (4) Classifying crimes as nearly as possible according to social interest protected

(5) Maintain balance between speedy and efficient law AND protecting accused

-Knowingly selling stolen property is theft -If a statute is difficult to interpret, the legislative history should be looked at. When interpreting statutes 1) look at plain meaning 2) leg. history State v Genova o Defendant sold an undercover police officer a stolen motor for $400. The defendant did not participate in taking the motor o o o from its owner. D was charged with theft 943.20(1)(1) If you knowingly sell stolen property, are you party to the crime of theft? Court had to determine if the language of the statute "takes and carries away, uses, transfers.." required the D to first take the object for it to be theft, or whether simply transferring it was sufficient to establish theft Trial court had interpreted statute to mean that theft required

"taking and carrying away" - so transfer by itself was not theft. o HOLDING: If you knowingly sell stolen property, you broke the theft statute. Transfer of stolen property by itself is theft. The theft statute should be read in the disjunctive, not conjunctive ("takes and carries away or uses or transfers...) o REASONING: Since 1887, precedent has been that taking is not a necessary requirement for theft - transfer of property is theft as well. Legislative intent was to preserve that precedent - the statute is murky, but this is what the legislators meant

II. Burden of Production and Persuasion

Burden of proof: refers to two concepts: o (1) burden of persuasion o (2) burden of production Burden of production: burden to come forward with evidence o Generally all relevant evid. is admissible o relevant = 904.01: evid. having any tendency to make any fact that is of consequence to the determination of the action more or less probable than it would be w/o the evid Burden of persuasion: burden of convincing factfinder. o In a criminal case, the burden of persuasion is on the State beyond a reasonable doubt o calls for clear and convincing evidence; means such a doubt as would cause a person of ordinary prudence to hesitate when called upon to act in the most important affairs of life. Equipoise: all facts equally likely - D should be found not guilty because state hasn't met its burden of persuasion.

-Due process requires that the state must prove beyond a reasonable doubt every element of the crime with which a defendant is charged. In Re Winship o A 12 year old boy may have opened a locker and stolen $112 from a womans pocketbook o Trial court relied on a preponderance of the evidence standard o Supreme Court reversed, holding that the burden of proof beyond a reasonable doubt is among essentials of due process and fair treatment required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult. o Judge Harlan's concurrence: In choosing between a beyond a reasonable doubt standard, or a preponderance of the evidence standard, our society is really choosing between more innocent men, or allowing more guilty men to go free.

Our society sees a false conviction as a greater social disutility than a false acquittal. Therefore, we have a reasonable doubt standard. III. The Jury's Function -Constitution gives a crim D the right to a jury to determine guilt beyond a reasonable doubt of every element of the crime. -While the court can decide issues of law, issues of mixed law and fact must be determined by the jury State v Gaudin o Respondent may have made false statements on federal loan documents in knowingly inflating the appraised value of the mortgaged property, and in lying that that buyer was to pay some of the closing costs, when in fact he (the seller) was paying the full cost. o Trial judge decided an element of the crime, the materiality of certain false statements, instead of letting the jury decide. "Materiality" combined factual and legal issues. o Supreme Court holds that the jury must decide juries must decide issues of fact, as well as issues of mixed law and fact. -Jury nullification is a power, not a right, that is a consequence of the prohibition against double jeapordy. -But the court can prohibit an attorney arguing for jury nullification. State v Bjerkaas (WI Court of Appeals 1991) o Bjerkaas, perhaps influenced by undercover police officers, helped to arrange a drug sale. o During trial court, Bjerkaas tried to argue for jury nullification, which was denied. She was found guilty. She appealed. o Court finds that court can prohibit an attorney from arguing for jury nullificdation. o if the jury makes an unlawful decision, it cannot be reversed. But this power to make an unlawful decision is not a right to make an unlawful decision. o Policy: We want decisions to be based on law, not personal whim.

IV. Lesser Included Offenses In General o Principle: Since lesser included crimes don't require any new evidence, the defendant already has notice that he might be tried under these lesser charges o State v Bergenthal Lesser included offenses are included if "under a different but reasonable view," the evidence is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower, should the lesser crime also be submitted to the jury. The purpose of multiple verdicts is to cover situations where under different, but reasonable, views of the evidence there are grounds either for conviction of the greater or the lesser offense. The lesser degree verdict is not to be submitted to the jury unless there exists

reasonable grounds for conviction of the lesser offense and acquittal on the greater. When a jury is being instructed on an element of the crime, other offenses may be included that were not charged so long as they were included in the greater charge. o State v Wolske In general, if crimes have different elements, and the same penalty, one is not a lesser included offense of the other. convictions for a count of negligent homicide and a count of homicide by intoxicated use of a vehicle were upheld. o Ross v State Court doesn't have to give instructions on every lesser offense whenever there is evidence to support it.

WI Statute 939.66 o (1) General rule: You can convict of greater offense or lesser included offense, but not both. Either greater or lesser, not both. Lesser Included Offense is "A crime which does not required proof of any fact in addition to those which must be proved for the crime charge." If every element of lesser-included offense is in the original offense, then it can be included in jury o o instructions (2) A crime which is a less serious type of criminal homicide than the one charged. (3) If the crime is the same, except for intent/recklessness/negligence, negligence is included in recklessness which is included in intent (4) Attempt is always a lesser included offense to the charged crime. (939.32) For Lesser Included Offense

o Test

o (1) Does the possible lesser included offense have the same or fewer elements than the charged crime? (What possible lesser included offenses are included in the crime?) For Homicide: 939.66(1): All less serious homicides (2nd degree intentional homicide, 1st, 2nd degree reckless, negligent homicide) See 939.66 for other ways. o (2) Does evidence support instructing lesser included offense? (some evidence) A Judge makes determination on whether a lesser included offense can be included (in most cases, the answer is yes) Test: Could the jury reasonably find that they were not convinced beyond a reasonable doubt that D was guilty of the initial charge, but still satisfied for a lesser included offense?

Test: Reasonable grounds for the conviction on the lesser offense requested. In assessing the reasonableness the evidence should be viewed in the light most favorable to the D Requesting a lesser included offense (Wisconsin Rule) o (1) It is error to not submit the lesser included offense if requested by State or D (both parties have right to request LIO) Asking for instruction on lesser included offenses is the counsels decision, but encouraged to consult client if lawyer dont consult with client, it may be grounds for appeal o (2) In absence of the request, it is not an error for trial court to fail to instruct on lesser included offenses (Wisconsin Rule) no duty to for judge to give sua sponte jury instruction on lesser included offenses o (3) If no request has been made, WI has authority (but not obligation) to instruct lesser included offenses (but they usually do)

California Rule: Court must instruct on all general principles of law even in absence of a request. o People v. Wickersham CA, 1982 Trial court didn't give sua sponte instructions on 2nd degree murder and voluntary manslaughter In California, even in the absence of a request, the trial court must instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present, but not when there is no evidence that the offense was less than that charged. failure to instruct on lesser included crimes deprives of constitutional right to have jury determine every material issue presented by evidence

Intentional Killing

I. 1st Degree Intentional Homicide Analogy to 1st Degree Murder in pre-1988 statutes elements o cause death o with intent to kill "mental purpose to take the life of another human being" Analogy to ALI's Model Penal Code Murder 210.2 elements o purposefully or knowingly [MPC 2.02(2)(a) and (b)] purposefully: it is his conscious object to engage in conduct or cause result knowingly: (if regarding nature of conduct or circumstances) aware that his conduct is of that nature or that such circumstances exists (if regarding conduct) he is aware that it is practically certain that his conduct will cause result

o cause death of another human being Wis.Stat. 940.01 1st degree intentional homicide (Class A Felony) elements o (1) cause death o (2) with intent to kill 939.23(4) (a) actor has purpose to cause death (b) or is aware that his conduct is practically certain to cause death o ~(3) absence of mitigating circumstances 940.01(2) - (If present, mitigate to 2nd degree Intentional Homicide) (a) adequate provocation 939.44 adequate: sufficient to cause complete lack of self control completely in an ordinarily constituted person (objective part) provocation: something the defendant reasonably believes the intended victim has done which

causes complete lack of self control at time of causing death. (b) unnecessary defensive force (imperfect selfdefense) unreasonable belief of imminent death or great bodily harm (for actor or 3rd person) and that force necessary for defense (c) prevention of felony actor unreasonably believes

force was necessary to prevent/terminate comission of a felony (d) Privilege of Coersion or necessity 939.45(1)/939.46/939.47 People v Caruso, NY 1927 Doctor came to visit Caruso and his sick son, promised to return in the morning. He had prescribed medicine. When Caruso tried to buy the medicine, he recalls that the pharmacist said it was in too large a dosis for a child. Doctor arrived late in the morning, after the child had died in Caruso's arms. He appeared to laugh - Caruso stabbed him to death. NY law for 1st degree murder included "intent to kill" and "premeditation and deliberation" - (here, premeditation and deliberation function analogously to "heat of passion" (common law) or provocation (WI)) Court finds that conviction for 1st degree murder isn't warranted without premeditation and deliberation, even if intent exists. In this case, Defendant had intent, but not premeditation and deliberation. Defendant can be convicted on lesser included offenses: 2nd degree murder or manslaughter in 1st degree. In WI - D wouldn't receive 1st degree intentional homicide, but 2nd degree intentional homicide.

II. 2nd Degree Intentional Homicide: Provocation Analogy to ALI MPC 210.03(1)(b) Manslaughter

extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. Analogy to pre-1988 940.05(1) - Heat of Passion Manslaughter without intent to kill while in heat of passion Wis.Stat. 940.05 (Class B Felony) causes death of another human being with intent to kill that person note: no mitigating circumstances necessary for second-degree

940.01(2)(a) Adequate Provocation adequate provocation 939.44 o adequate (sufficient to cause complete lack of self-control in an ordinarily constituted person objective - an ordinarily constituted person would also lack self-control? subjective - defendant lacked self-control completely? o provocation (something the defendant reasonably believed the victim had done) objective - was his belief reasonable? subjective - did the defendant believe it? Subjective: Requires the to have lost self-control completely, and that he believed the victim provoked him. Objective: Requires the provocation to have been such that it would cause complete loss of self-control in the ordinarily constituted person, (also, that an ordinarily constituted person would believe that victim was the cause of provocation). Requires application of a community standard to the provocation. While evidence can be submitted there need not be evidence of the objective component in order to raise a jury question. History of violence can go to reasonable belief. Lowers the threshold of the provocation needed. A defense for 1st degree intentional, mitigates to 2nd degree intentional

State v Hoyt - WI (1964) FACTS: A battered wife shoots and kills her husband after he beat and humiliated her - she has little memory of the event. She's charged with 1st degree murder. ISSUE: Was the provocation sufficient to cause the same result in an ordinarily constituted person? (does provocation pass objective test?) HOLDING: o Her acts resulted from an emotional or mental disturbance caused by provocation, gradual and cumulative over years of beatings, that could cause the same result in an ordinary person. o You can look at the history leading up to the immediate provocation - it's whether the provocation would make an ordinary man lose control if he had these past circumstances. CONCURRENCE: (J. Wilkie) The "objective" provocation-sufficientto-enrage-the-ordinary-man test doesn't work with manslaughter an ordinary man doesn't kill people regardless of the situation. We should use the Model Penal Code tests: "whether actor's loss of self-control can be understood in terms that arouse sympathy enough to call for mitigation of sentence" State v Williford After Hoyt: Courts tended to strike down most cases claiming heat of passion using Hoyt: Facts: Husband kills wife and tries to use Hoyt standard. Mutually abusive relationship. Shot and killed his wife. Months earlier, at one point she had pointed a gun at him. They had reconciled and broken up repeatedly. A month before the murder, he learned she had a boyfriend. No provocative events within two weeks prior to shooting. On the night defendant murdered his wife, she insulted him, and pointed a gun at him - which he took from her, to shoot her with. Result: Heat of passion was not allowed Comparison with Hoyt Case This case is distinguishable:

o (1) He hadnt pent up his anger like Hoyt o (2) The mistreatment in this case was not so one-sided (he beat her too) o (3) He vented his anger on more than one occasion o (4) Here there was a 2 week cooling off period, no cooling off period for Mrs. Hoyt State v Felton Facts: Extreme physical and sexual abuse by husband over extended period of time. Abused wife shoots her husband while sleeping. Her defense attorney didn't ask for jury instruction for heat-of-passion manslaughter. Law: The US Constitution and State Constitution guarantee the right to counsel. The right to counsel is more than a right to nominal representation. Representation must be effective. Where the defense is prejudiced by ineffective counsel, judgment is reversed and remanded for new trial. The court reasoned that since counsel was ignorant of the manslaughter defense the defendant was deprived by conduct of counsel, of the benefit of the defense, she was therefore prejudiced by counsel being ineffective. Court expanded Hoyts definition of ordinary person by allowing us to consider whether the ordinarily constituted person lose control at this provocation who had a history being a battered woman. o The ordinary person can be someone who would be an ordinary battered spouse Defense has burden of production - State must prove BRD that affirmative defense does not exist (Mullaney)

State v Moeller Moeller, 17 at the time, killed his mother during an argument for underage drinking. He testified that he had no control over his actions, and that he did not intend to kill her. Defendant argued for heat of passion manslaughter. Provocation was met because his mother was so overbearing that even an ordinarily constituted person in his circumstances (Felton) would have been sufficiently provoked to react with violence to her.

Court limits Felton. Doesn't apply where there is no history of extreme abuse. Humiliation and domineering not same as physical abuse. Also, there is no expert testimony in Moeller, unlike Felton, to back up what he is saying about smothered children. III. Allocating the Burden Allocating the burden of persuasion for mitigating circumstances Recall In re Winship held that the prosecution must prove beyond a reasonable doubt all the elements of the offense with which a criminal defendant is charged. Mullaney v Wilbur Defendant killed a gay guy who made homosexual advances on Defendant. State of Maine requires a defendant charged with murder to prove that he acted "in the heat of passion on sudden provocation" in order to reduce homicide to manslaughter.

ISSUE: Does Maine law placing the burden of proof on the defendant to show that he acted "in the heat of passion..." violate Due Process? HOLDING: Due Process requires the prosecution to prove beyond a reasonable doubt every element of the crime. (in re winship) Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of a mitigating factor (such as heat of passion). Due Process forbids placing the burden of proof on the defendant for elements of the crime.

Patterson v New York (1977) Defendant murdered his wife's lover. He was charged with second degree murder. He argued an affirmative defense - that he had an extreme emotional disturbance (which would turn murder to manslaughter.) NY law places on Defendant the burden of proving extreme emotional disturbance. Court Limits Mullaney. o Due process allows placing burden of persuasion on D on matters not inconsistent with elements.

o Negated Mullaney in the sense that State only has to prove beyond a reasonable doubt those elements that are included in the statute. o "Burden of persuasion may be placed on D to prove an affirmative defense that is not inconsistent with an element of the crime." as long as affirmative defense isn't an element of the crime, the burden of persuasion can be moved to the defendant. In Mullaney v Wilbur, Maine included "malice aforethought" as an element of the crime, so the State was required to prove it beyond a reasonable doubt. In Patterson v New York, "emotional disturbance" wasn't an element of the crime, but merely an affirmative defense, so the State was free to shift the burden of proof to the defendant. Dissent: J. Powell says that the majority opinion "allows the legislature to shift, virtually at will, the burden of persuasion with respect to any fact in a criminal case." Majority responds by saying "there are obviously constitutional limits beyond which the States may not go in this regard," but doesn't explain what will stop legislature from doing so.

Moes v State (WI 1979) Defendant admitted to killing a man, then retracted his statement. He claims that he was forced to participate in the crime by bringing a shotgun, but did not directly commit the murder, and was coerced into doing so because of threat to his life and the life of his family by Bergeron and Neeley. He's found guilty, but appeals, arguing that the court unconstitutionally placed burden of proof on him to prove statutory defense of coersion. Court confirms that the federal due process clause does not require the state to disprove beyond reasonable doubt the absence of a statutory defense. (Patterson) But Court holds that in Wisconsin, when the procedure for a recognized affirmative defense is not explicitly stated in the statute, it's the obligation of the State to prove its absence. Patterson Today States have broad authority to write the elements the way they want to comply with Patterson.

If mitigating circumstance isn't a part of the original elements (or absence of one of the elements) it's constitutional to shift the burden of persuasion to the D. States decide for themselves what they want to do: who has the burden of persuasion for defenses that are not elements of the crime. Wisconsin Rule Wisconsin has chosen to put the "burden of persuasion" on the State Once D satisfies "burden of production" for a mitigating factor (or if it's placed in issue by the trial) the "burden of persuasion" is on the State to prove the absence of mitigating circumstances (affirmative defense) beyond a reasonable doubt. i.e. 1st degree homicide case If D produces some evidence of an affirmative defense, the burden of persuasion switches to the State to prove its absence beyond a reasonable doubt. If the State is successful 1st degree intentional. If the State fails to meet burden 2nd degree intentional. IV. Proof of Intent You cannot presume intent from a criminal act. (You can, however, allow a jury to infer intent from the facts) o The only real presumption allowed is "presumed innocent until proven guilty" The statement "the law presumes that a reasonable person intends all of the natural, probable, and usual consequences of his deliberate acts" is not allowed in jury instructions. o Factually incorrect (because of the varying degrees of homicide and varying mental state, it violates the 14th

amendment to make this presumption) o Legally incorrect (under Sandstrom, either a burden shifting presumption or a conclusive presumption is unconstitutional because it violates due process) Sandstrom v Montana Defendant kills another. Jury is instructed that "the law presumes that a person intends the ordinary consequences of his voluntary acts."

Holds that a court can't give instructions that mandate a finding of intent to kill based upon the facts. ->No conclusive presumptions are allowed. o (Conclusive presumptions are irrefutable directions by the court to find intent once convinced of the facts triggering the presumption.) Holds that a court can't give instructions that shift burden of persuasion to the defendant to show he didn't have intent to kill, or any element of the crime. ->No burden shifting presumptions are allowed. Jury instructions that indicate an act PRESUMES intent is in conflict with 14th amendment and Winship (needing to prove every element of the crime) Israel D hit an old man over the head with a glass bottle, and kills him. Wells found guilty - judges states reasons for his findings. in doing so, he appeared to rely on this presumption of intent. Supreme Court holds that despite this language, that trial court decision should be affirmed b/c he also said "under all the

Wells v

evidence" - which was enough to show that the judge relied on the evidence, not upon presumption of intent to kill. V. Defendant's Right to Present Evidence to Contest Intent How can a D introduce evidence that may disprove a mental state (intent) for a crime? Tests for whether expert testimony can be admitted: (1) Was it relevant? o Wis.Stat. 904.01: A fact of consequence to the determination of the action o Something is relevant if it makes a fact of consequences o An element of the crime is always relevant o Expert testimony needs to answer the following: (1) is the diagnosis relating to the D? (2) what are the characteristics of the diagnosis? (3) how do those symptoms relate to the issue? (2) Experts: Was it coming from specialized knowledge?

o Wis.State 907.01-02: "a witness qualified as an expert by knowledge, skill, experience, training, or education." o Testimony must come from specialized knowledge o Consider: can the expert relate their expertise to the legal standard? o (i.e. the expert's definition of "intent" conforms to the legal definition of "intent") (3) Opinion on ultimate issue o Current rules don't automatically prohibit whether an expert can deliver an opinion on the ultimate issue o On the flip side, "expert" doesn't have a right to give an opinion on the ultimate issue, either. o In WI - expert testimony may be precluded because it would likely prejudice the jury hearing the ultimate issue from an "expert" (4) Does prejudice outweigh its probative value? o Balance Wis.Stat. 904.03 o If prejudice outweighs probative value, testimony can still be excluded.

Chambers v Mississippi In a riot at a bar, a police officer was killed. D (Chambers) charged with the shooting, but McDonald confessed, then retracted confession. D sought to cross examine his own witness (McDonald), and call 3 other witnesses whom McDonald had confessed to. Mississippi statute prohibited him from cross examining his own witness, or present hearsay evidence. D has a Constitutional Right to present a defense that cannot be prevented by State statute's evidentiary rules. Procedural rules, like prohibitions on hearsay and cross examining your own witness, can be overturned if they prevent a defendant from introducing relevant evidence in his defence. State v. Dalton (discussion problems 192-193) 904.01 o relevant evidence- evidence having any tendency to make the existence of any fact of consequence to the determination

of the action more probable or less probable than it would be without the evidence. Fisher v United States D killed the librarian who complained of defendants efforts as the janitor. D asked for jury instruction to take his personality and low intelligence into account whether he was capable of deliberation and premeditation. Issue: Can mental deficiency not amounting to complete insanity be considered by the jury in determining whether a homicide has been committed with deliberate and premeditation necessary to constitute first degree murder? o mental defect that is less than insanity is not admissable o the doctrine of partial responsibility or diminished capacity is not allowed o says that this is a legislative matter, not for the courts to decide o [DO NOT ACCEPT THE MAJORITY OPINION UNCRITICALLY. THE MAJORITY IS ASSUMING THIS INFORATION IS RELEVANT. (see Haas : capacity to have intent isn't relevant. The only thing that is relevant is WHETHER they actually had the intent, not whether they had the capacity to have the intent) Under current law (Haas), you can't exclude relevant information for the defense under Due Process.] Dissent: because there are different degrees of homicide, the jury should be able to have all the facts to consider the D's mental state. He argues psychiatric knowledge is ever increasing and should be considered. o Schultz said this opinion has it right - look for its relevance.

Haas v Abrahamson A guy kills his ex-girlfriend's boyfriend, and wounds his exgirlfriend. He files a motion in limine to bring in expert psychiatric witnesses to show that he didn't have intent to kill. Wisconsin Rule: No expert testimony allowed regarding D's capacity to form intent to kill.

o Wisconsin's rule barring expert psychiatric/psychological opinion testimony on the question of a defendant's capacity to form the intent to kill is constitutional o A state can exclude psychiatric opinion testimony about capacity for intent to kill. o but must allow relevant psychiatric testimony that tends to negate state's argument. o so long as it is not expert opinion regarding capacity to form intent. o But Defendant still has a constitutional right to present relevant evidence (Chambers?) So any psychiatric testimony not involving opinion about capacity to form intent is admissible if it tends to disprove an element of the crime, or the State's case. United States v Pohlot Pohlot was physically and psycologically abused by his wife by many years by his cheating wife. One time she even shot him. When she asked for a divorce, he contracted a hitman to kill her. hitman" was a government informant. She obviously wasn't killed Pohlot was arrested. D presented psychiatric testimony that subconsciously he didn't want to kill wife - didn't have intent. Court finds him guilty, and doesn't allow jury instruction to consider his abnormal psychology when deciding if he had intent. Holding o Federal law prohibits the defense of partial responsibility. o While it doesn't bar all evidence of mental abnormality from consideration defendant's mens rea, it doesn't allow defense of partial responsibility. o Arguing that defendant didn't have intent to kill on a subconscious level is prohibited partial responsibility defense. o Criminal responsibility must be judged at the level of the conscious (not unconscious). Purposeful activity is all that the law requires regarding intent. Thus, a lack of selfreflection does not mean a lack of intent and does not negate mens rea.

Three situations where psychiatric testimony and mental illness come into play (1) No intent to kill because D is suffering from some mental disorder (case would be extremely rare because person didn't have capacity to form intent) result: "not guilty" because the intent for the crime wasn't there. Could be guilty for crime the doesn't require the mental state (2) Intended to kill but "insane by mental disease or defect" result would be: guilty of the crime that requires intent, but "not criminally responsible" because of insanity defense. (3) intent to kill but mentally ill (but not to level required by insanity defense) guilty of crime; D would still be convicted of the crime. Diminished responsibility no longer exists in WI or anywhere else. In WI, when insanity is an issue, there's a bifurcated trial. First stage is a regular trial; second stage would be about the insanity issue. In second stage, burden is on D (a civil burden - preponderance of the evidence) and a 5/6 verdict.

Aggravated Reckless Killing

FIRST DEGREE RECKLESS HOMICIDE 940.02(1) -1st degree reckless homicide - (Class B Felony) (1) cause death (2) recklessly (criminal recklessness is defined in 939.32) o (a) create risk of death/great-bodily-harm (i) unreasonable (no social utility, or violates law) (ii) substantial (probability of risk) o (b) aware of that risk (subjective test) o [NOTE: 939.32(3)) - intoxication is not a defense if, had the actor been sober, he would have been aware of danger] (3) (under circumstances that show) utter disregard for human life (objective test) (this is judged by looking at the risk

Objective v Subjective test: criminal recklessness (subjective) utter disregard (objective) Analogy to pre-1988 2nd degree murder depraved mind 940.01(1) (p54) cause death by imminently dangerous conduct evincing a depraved mind, regardless of human life Analogy to Murder ALI MPC 210.2.(1)(b) extreme indifference to human life II. Evolution of the Reckless Killing Standard in English common law, most serious degree of homicide was described as killing "with malice aforethought" both with intent (express malice) and without intent (implied malice) the problem with implied malice was how to describe it. Early common law standards had no prescriptive standard for recklessness. The closest analogy was murder with implied malice aforethought, which used a number of indefinable terms: "wickedness, malice, depravity of mind, hardness of heart" etc. ~Problems with common law standard: (1) What is the level of actual awareness the D has to have? (2) What does 'evincing a depraved mind' mean? Mayes v The People (IL 1883) Drunk abusive husband threw a beer glass at his wife. It struck her oil lamp, which shattered, covering her with burning oil. She burned to death. Holding: D is guilty of murder (with implied malice aforethought). Rule: o (malice is an element of common law murder) o malice is implied where there is no provocation

o malice is implied if there is "abandoned and malignant heart" Commonwealth v Coleman (PA 1974) Man on bus shoots bullets into seat in front of him and kills victim who was hiding behind the chair. D argued that there wasn't enough evidence of malice. Holding: There was enough evidence of malice to convict on 2nd degree murder. Rule: o Malice may be inferred from the circumstances of the act. o Malice = when an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result o One who voluntarily and with malice, but without a specific intent to cause death, does an act which causes the death of another may be guilty of murder in the 2nd degree, event though that persons death is an accidental result of such act. Montgomery v State (WI 1922) drunk driver, runs down pedestrians, kills 3, injures 2. people in car told driver to slow down; he did not. he fled scene after killing people - eventually turned himself into police. D argued he didn't have depraved mind (2nd element of WI cmn law murder.) Ruling: D guilty of 2nd degree murder.had depravity of mind which is conduct "imminently dangerous to others, regardless of human life." [Wisconsin common law standard for 2nd degree murder was: o conduct imminently dangerous to others o evincing a depraved mind irregardless of human life] Rule: o If an act is imminently dangerous to others, evincing a depraved mind, regardless of human life and without premeditated design, it is murder in the second degree. o depraved = take the life of another without justification or excuse, but without premeditation

Evolution from Old Second-Degree Murder into Current Wisconsin Standards: (1) imminently dangerous "risk of death or great bodily harm: unreasonable and substantial" (2) "evincing a depraved mind" "utter disregard" III. Current Standard of Reckless Homicide; Determining Utter Disregard "Utter disregard" test - (1) take all factual info in as a whole; (2) ask what reasonable person would know State v Edmunds Childcare provider shook baby - head injuries were extremely severe, killed baby. She was charged with 1st degree reckless homicide. D argues that there was no utter disregard for human life because she o (1) wasn't subjectively aware of the risk and o (2) her conduct wasn't sufficient to show utter disregard4HL o (3) called 9/11 afterwards Holding: There was enough evidence to show utter disregard4HL (therefore a jury to convict her of 1st degree reckless homicide) Rule: objective standard for determining whether utter disregard was present: o "In determining whether utter disregard for human life was proven, we note that the State satisfies its burden when it proves that the conduct of the D and the surrounding circumstances, as generally considered by mankind, are sufficient to evince utter disregard for human life" (State. v. Weso) o The fact that D knew or didn't know about the risk of danger in her act is irrelevant to question of utter disregard for human life. Utter disregard addresses what a reasonable person would know in her place. o Thus, utter disregard is proved through an examination of the acts, or act, that caused the death and the totality of the circumstances that surround that conduct.

o positive acts, like calling 911, after the crime do not require the jury to find that D's conduct had not demonstrated UD4HL. o (NOTE: what is really going on is the court sees her acts as so heinous, that they are "objectively" heinous. State v Jensen A father shook his baby to extent it suffered severe injuries. He saw the baby's head snap back and forth but continued shaking. Baby lived, but was blind/retarded. Fathr lied to police initially, claiming it was an accident. D argues that he did not have utter disregard for human life b/c he o (1) wasn't subjectively aware of the risk and o (2) conduct wasn't sufficient to show utter disregard4HL Holding: D had utter disregard for human life. Rules: o Utter disregard is a separate element which aggravates 2nd degree reckless to 1st degree reckless. o Test 1: "The element of utter disregard for human life is measured objectively, on the basis of what a reasonable person in the D's position would have known. Problem: "known" about what? This leaves some questions unresolved. Schultz' amicus brief: It is not helpful because it fails to make clear that the circumstances must show an attitude of indifference or contempt about one or more of: the gravity of the harm risked, the likelihood of it occurring, and its lack of social utility. Test 2: "Utter disregard can be established by evidence of heightened risk, because of special vulnerabilities of the victim, for example, or evidence of a particularly obvious, potentially lethal danger." (Note: Schultz prefers this second test because it is more clear) o Which was more what the court looked to in this case. It is not a defense to UD4HL to say that you were not subjectively aware of the risk (of baby shaking or whatever) because utter

disregard for human life is determined by "what a reasonable person in the D's position would have known." "Utter disregard" is consistent with previous interpretations of "depraved mind" and the judicial purpose in enacting it was to codify prior judicial interprts. of depraved mind 2nd degree murder After-the-fact regard for human life does not negate "utter disregard" otherwise established by circumstances before and during the crime.

IV. Reckless Killing in the Second-Degree 940.06 - 2nd degree reckless homicide - class D felony elements o cause death o reckless (939.24) create risk of death/GBH unreasonable (no social utility, violating law) substantial (probability of danger) aware of the risk o (D cannot use intoxication as a D for lack of awareness) Note: in determining subjective tests (awareness of the risk in this case), you can use other tests even objective. i.e. The average person would know drag racing is dangerous therefore I can conclude beyond a reasonable doubt that Wagner would know this.

Analogy to pre-1988 940.06 homicide by reckless conduct Analogy to ALI MPC 210.3(1)(a) Manslaughter (reckless) Wagner v State D, on sleeping pills and drunk, engaged in drag racing (spontaneous speed contest in modern statutes); swerved car, but still ends up hitting and killing someone. He drove home and was later arrested with a .21 alc/blood level at the time. Using Modern Statute:

o Cause death? Y o Risk of death or great bodily harm? (speeding) Unreasonable? Look to lawfulness - drag racing is illegal, so Y Substantial? Refers to likelihood that this could happen: must consider issues like where they were drag racing main street versus abandoned area; time of day, etc. Y o D aware of risk? D must be aware (subjective test) of risk defined (otherwise, it's not reckless). Must prove Wagner is aware of the risk. Note: in determining subjective tests (awareness of the risk in this case), you can use other tests even objective. i.e. The average person would know drag racing is dangerous therefore I can conclude beyond a reasonable doubt that Wagner would know this.

State v Rasmussen Facts: D, epileptic, has seizure had rush hour; blacked out, drove through red light, killed two girls on their way to East High School. Result: Charged with 1st degree, plead to 2nd degree Can say that he was too stupid to realize risk: kids throwing rocks at trucks, etc.jury can negate this Under Modern Statute: o (1) What possible lesser homicide offenses are "included when first degree reckless homicide is charged"? 939.66(1): all "less serious" homicides 1st degree and 2nd degree reckless; homicide by negligent use of a vehicle (940.10) o (2) Does evidence support instructing lesser included offenses? Judge makes determination on whether a lesser included offense can be included (in most cases, answer is yes) (1) 2nd degree reckless (focusing on utter disregard issue)

Test: Could the jury reasonably find that they were not convinced beyond a reasonable doubt that D was guilty of the initial charge, but still satisfied that criminal recklessness was present? (2) Homicide by negligent use of a vehicle (940.10): Test: Could the jury have a reasonable doubt about awareness of the risk, but criminal recklessness still present? Elements: (1) risk of death or GBH; (2) unreasonable; (3) substantial; (4) should have known

State v Gooze (1951 NJ) Facts: Defendant is driving down the highway when he suddenly blacked out and crashed head on with a car, killing its driver. He had experienced black out spells prior to this and had been diagnosed with Meniere Syndrome. The defendant had been warned that blackouts could reoccur at any time and was told not to operate a motor vehicle alone. D charged with causing death while driving vehicle carelesslessly in willful or wanton disregard to rights/safety of others. Holding: D found guilty Reasoning: In driving his automobile with the knowledge that he at any time suddenly lose consciousness or suffer a dizzy spell and having been cautioned not to drive constituted an act of wantonness and a disregard of the rights or the safety of others. Analogy to case law for epileptic drivers who kill someone during a seizure o b/c they knowingly decide to drive, knowing that they can have a seizure at any moment.

Rule: If you drive your car with the knowledge that you might lose consciousness because of an illness, and you do so against a

doctor's advise that you only drive with someone else present, you are acting wanton reckless in disregard of the safety of others. (so you can be found guilty of manslaughter)

Negligent Killing
I. Homicide by Negligent Operation of a Dangerous Weapon 940.08 Homicide by negligent handling of dangerous weapon, explosives, or fire (class G) causes death by negligence 939.25 o ordinary negligence to a high degree o conduct creates risk of death/GBH substantial unreasonable o D should realize the risk (objective test) handling of a weapon, explosives, fire (doesn't apply to health care providers acting w/in scope their job)

940.10 Homicide by negligent operation of of Vehicle (class G felony) cause death negligence 939.25 o ordinary negligence to a high degree o conduct creates risk of death/GBH substantial unreasonable o D should realize the risk (objective test) operation/handling of vehicle

Analogy to pre-1988 940.08 Homicide by negligent use of vehicle or weapon cause death

by high degree of negligence o ordinary negligence to a high degree o person should realize o creates a situation of unreasable risk o high probability of death/great bodily harm by vehicle, firearm, airgun, knife, bow and arrow Analogy to ALI MPC 210.4 Negligent Homicide elements o negligently 2.02(2)(d) should be aware of a substantial/unjustifiable risk failure to perceive risk is a gross deviation from a reasonable person's standard of care o cause death State v Barman Barman Drives through a stop sign. He had drank 2 beers, but was not drunk. He wasn't speeding. Driving with such a degree of inattention that you miss warning signs and stop sign. Barman was not able to give an explanation. defense argued "selective prosecution" - some people who committed the same crime weren't charged for it. Result: Charged with negligent homicide but acquitted. Rule: if prosecutor can give neutral non-discriminatory reason to prosecute in this case, but not prosecute in other cases, then they are allowed to prosecute defendant (Any car accident that leads to a death could potentially get charged under negligent homicide with a vehicle, because of the high danger of driving a car. in practice, most aren't. prosecutorial

discretion) State v Cooper D drove through red light and struck car killing occupants; said she only committed ordinary negligence, not "high degree of negligence" (criminal negligence). court followed current criminal negligence definition

Court held guilty of negligent homicide. Court found that the speed plus going through the light met requirements of criminal negligence. Rules: o The definition of a high degree of negligence has two elements (1) ordinary negligence (2) high probability of death/GBH o Ordinary negligence requires the actor reasonably to foresee only an unreasonable risk of harm. o High degree of negligence requires the actor to reasonably forsee an unreasonable risk of harm AND a high probability of death/GBH. o Consequently, if an actor is ordinarily negligent, and should reasonably foresee high probability of death/GBH, the second element is met. (these rules present a problem: pretty much any negligence while driving is going to create a high probability of death/GBH, so pretty much any negligence in a car accident can mean criminal negligence.)

If person is falling asleep at wheel, is there negligence? Was there some evidence got drowsy and failed to pull over or stop driving? Requirement for most places is that there is a Voluntary Act o Not held criminally responsible for sleeping, but can be held liable for ignoring the warning signs of drowsiness State v Olsen The D had felt drowsy earlier had turned down window to get air, felt refreshed but has no recollection of the accident. He fell asleep and killed a kid on the sidewalk. Court held that falling asleep at wheel is evidence of negligence: going to sleep at the wheel of a car, without more, at least presents a question for he jury as to whether the driver was negligent."

Concurring opinion: "Falling asleep by itself raises a presumption of criminal negligence. It is but evidentiary fact to be submitted to the jury along with all other facts and circumstances. If under all the circumstances the evidence discloses that the driver continued to operate the car without regard to premonitory symptoms of sleepiness, then the jury could find that he was driving in marked disregard for he safety of others."

II. Homicide by Intoxicated Use of a Vehicle or Firearm 940.09 Homicide by Intoxicated use of vehicle or Firearm - (Class D Felony for 1st time offenders, Class C felony for people with past convictions/suspensions/revocations) (1a) o cause death o by operation/handling of a vehicle o under influence of an intoxicant (939.22(42)) ability to operate is materially impaired. (1b) Cause death while operating with a prohibited alcohol concentration (PAC). o 304.01(46m): Currently .08% o .02% if a driver has 3 or more priors (2) Affirmative Defense o If D can show by preponderance of the evidence that the death would have occurred even if the actor had not been under the influence **ALMOST strict liability; you are guilty of a crime if you are driving while intoxicated and kill someone** NO INTENT; dont have to prove causal connection b/t alcohol and death State v Peckham (WI 1953) D was a little intoxicated; was driving and hit small child. D wanted to present testimony from a witness who would have testified that the accident did not result from lack of due care. Old Statute elements: "causing death by operation of a vehicle while under the influence." Thus, the court held that the testimony would be irrelevant; no additional negligent driving issue was necessary - causal intoxication was not required.

(what this means, is that in 1953, a drunk driver who drives competently and gets in an accident is responsible for any deaths that occur, even if there is no causal connection between his drinking and the injury) In 1956, they amended the statute to include a causal negligence requirement. In 1981, added "per se" violation with blood alcohol level as .10% (now .08%) - so it doesn't matter if you were driving competently if you are over the limit.

NOTE:

but in current law, there is an affirmative defense in 940.08(2) that allows acquital if the D can show the accident would have occurred even if they were sober. State v Caibaiosai D was driving motorcycle with passenger; blood alcohol was .13% killed passenger. o Court held that the State does not need to prove causal operation while intoxicated. State does not need to connect the "causing death' with the alcohol consumption. o Affirmative Defense Issues: D would have to bring up defense that death would have occurred even if not intoxicated. o Dissent: Abrahamson finds the rule unconstitutional: "Requiring the State to prove causation between the wrongful conduct and the harm is a basic principle of criminal jurisprudence." "Causal culpability, not the culpability associated with driving while intoxicated, is required to convict of homicide."

Liability for Failure to Act

I. Omissions Standard: Omissions liability exists in Wisconsin but not explicitly in the Statute o Omission (Failure to act) requires: o (1) legal duty o (2) knowing of the facts giving rise to the duty (realizing duty; if you are aware of the facts giving rise to a duty but dont realize the duty, not an excuse) o (3) physical ability to act (perform the duty) o (4) omission causes the crime (substitute for the element of the crime) If all of these requirements are satisfied, this can substitute an "act" Was there a legal duty? Possibilities (but not exclusive): Specific statutes imposes a duty and penalty on failure o i.e. paying income tax, 948.22 - failure to pay court ordered support Special Relationship - such as parent-child Contract Voluntary assumption of care (leaving kids w/ friend, e.g.) Note: In general, there is no legally imposed duty to act to save someone (i.e. no duty to save a drowning person if you didn't create those circumstances) Model Penal Code 2.01: (1) duty to act (2) physically able to perform (3) then look at elements of the crime

When are you liable for crimes?

A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable. o Fain v Commonwealth Facts: Guy with history of sleepwalking is roused from his sleep, and shoots and kills the guy trying to wake him up. He tried to submit evidence about sleepwalking disorder. Court held that this was a relevant issue and these were dispositive facts going towards the heart of the

issue - so D had a right to present evidence. This was an involuntary act. Test: When evidence is offered, the sole question for the court is: Will it conduce to prove any fact material in the case, and if the law gives an affirmative response, the evidence must be admitted. A person isn't liable for an act he commits while sleeping or sleepwalking. State v Williquette, WI Facts: A mother didn't prevent or take any action to stop her two children from being physically and sexually abused by her husband. She knew the abuse was occurring. She even left the children with her husband while at work. Result: DA charged wife with child abuse by acts committed by him; looked at old statute (940.201 which has since been repealed) which described cruel maltreatment; DA charged wife with the crime because she entrusted children with husband time and time again knowing about the abuse A parent who knowingly permits another person to abuse the parent's children is committing child abuse. The essence of criminal conduct is the requirement of a wrongful "act." This element, however, is satisfied by overt acts, as well as omissions to act where there is a legal duty to act.

Jones v United States

A woman taking care of a mother's children doesn't properly feed them, and one dies of malnutrition. Court held that there are 4 situations where failure to act may constitute a breach of a legal duty where one can be criminally liable o (1) Statute imposes a duty to care for another o (2) Status relationship: one stands in a certain status relationship to another o (3) Contract: one has assumed a contractual duty to care for another o (4) Voluntary Assumption: one voluntarily assumes the care of another and so secluded the helpless person as to prevent others from rendering aid. Her jury instructions didn't address whether she had duty to child, so her case is remanded to examine factual issues over whether she had 3) contractual duty or 4) had voluntarily assumed duty in a way that prevented others from giving aide. State v Serebin o D was administrator of nursing home and was repeatedly warned about needing more staff members. One of residents wandered out into cold and died from exposure to cold. There were 2 criminal complaints (1) that D caused the death of Dryer, and (2) there were 12 counts of inmate abuse because other residents had bedsores and weight loss. Court held there was insufficient evidence to support a conviction on (1) the reckless homicide count, but sufficient evidence for (2) the abuse of the inmates. Example : Case examined through Omissions Looking for Omission: (1) Legal duty: he had a contractual duty to care, and this is a heavily regulated area (2) knowing of the facts giving rise to duty: several staff members called this issue to the attention of Serebin (3) physical ability to act: hiring more people is physically possible

(4) Did the omission cause the crime? Looking for Reckless Homicide: (1) Cause death? (2) Conduct or omission that creates a risk of great bodily harm? Substantial - Y Unreasonable? - We'd look at regulation (3) Aware of the risk? Definitely - warned about needing more staff. Result: the Supreme Court couldn't find enough of a

causal relationship between the omission and the death. But there's also a good argument for why there was a causal relationship: he had been warned before, he knew of the staffing problem, he knew this guy had wandered before Note: Schultz thinks there could have been a causal connection between not enough staffing and this guy's death. o In order for the state to convict it must prove beyond a reasonable doubt that a causal connection existed between his actions and the harm which resulted. It must be shown that, as a minimal requirement, the accuseds conduct was an antedent but for which the result in question would have occurred. This means that an accuseds conduct must at least be a physical cause of the harmful result. The evidence would tend to show that even if the ideal two hour bed check with sufficient staffing occurred that decedent could have wandered out and died of exposure within the interval between checks. Court rejects prosecutorial speculation that had there been more staff a different routine for bed checks would be in place. Citing Fine v. State (TN 1952) It is settled law in all jurisdictions that criminal agency must be shown beyond a reasonable doubt; it cannot rest upon conjecture or speculation. II. Causation 2.03 ALI Model Penal Code

- Causal relationship between conduct and result Conduct is the cause of a result when: a. It is an antecedent but for which the result would not have occurred. b. The relationship satisfies any additional causal requirements imposed by the code or the law When intent is an element of an offense the element is established if the result differs: a. Causing a the result to be inflicted on a different person or property b. The result is not as severe as intended. c. The actual result is the same injury but it is not too remote or accidental bearing on the actors liability - The language of proximate causation is replaced by language that focuses on the relationship between the purpose or contemplation of the actor and the result of his conduct. When reckless or negligence are elements of an offense the element is established if the result differs: A. Causing a the result to be inflicted on a different person or property B. The result is not as severe as intended. C. The actual result is the same injury but it is not remote or accidental bearing on the actors liability 4. When the offense is for strict liability the element is not established unless the actual results are a probable consequence {provides a minimal protection against the limitless extrapolation of liability without fault} of the actors conduct WI Substantial Factor Test: cause is "factor actually operating and which has substantial effect in producing harm as a natural result."

It makes no difference that more than one factor contributed substantially to causing death or that there was a substantial lapse of time between death and the act causing death o State ex rel. Cornellier v Black D was director of a fireworks manufacturer; D was aware that the plant had serious problems (no permit, not meeting safety requirements, illegal operations, bad storage facilities, chemicals left open, and lost of other violations); charged with reckless homicide. Court held that the elements in the criminal conduct can be satisfied by overt acts as well as omission to act where there is a legal duty to act. It is just as much an "act" to deliberately or recklessly refrain from performing a known legal duty as it is to negligently perform that duty. (1) Legal duty: to his employees, extensive state regulation (2) Knowing the facts giving rise to the duty: he was warned about dangers (3) Physical ability to act: he could have gotten it fixed (4) omission caused the crime: yes - omission caused the fire and killed employee

Felony Murder I. Standard and Application of Cases Wis.Stat. 940.03 (Adds 15 years to maximum confinement of underlying crime) o (1) Cause death (was it a "substantial factor?" - "but for" test o (2) while committing or attempting to commit: 940.225(1) 1st degree sexual assault; 940.225(2): 2nd degree sexual assault; 943.02 arson; 943.10(2): Armed Burglary; 943.23(1)(g): Carjacking; 943.32(2): Armed Robbery as of April 21, 2006, Act 313 added 7 more felonies

940.29 Battery; 940.195: Battery to an unborn Child; 940.20: Battery, special circumstances; 940.195: Battery or threat to witness; 940.203: Battery or threat to judge; 940.30 False imprisonment; 940.31: Kidnapping The underlying felony is a lesser included offense of felony murder; charging, convicting or sentencing for that felony in addition is precluded by double jeopardy principles State v Oimen The bookie shot and killed one of the robbers. D was the "mastermind" in this case. Court held that the plain meaning of 940.03 allows a D to be charged with felony murder when a co-felon is killed by the intended felony victim. Rule: To prove felony murder, state needs only to prove that the defendant's conduct was a "substantial factor" in the death of another person, and that death occurred while the D was committing or attempting to commit one of the felonies listed in the felony murder statute. So even if it's the victim who kills Robber A, Robber B can be charged with Felony Murder. Felony Murder is a strict liability offense and does not require proof of any mental state. He caused by his conduct being a substantial factor in bringing about the result his co- felons death. A substantial factor need not be the sole cause. Forseeability does not factor because of the violent and dangerous nature of the underlying act, a death is deemed to be a natural and probable consequence of the felony. While committing or attempting to

commit encompasses the immediate flight from a felony. There is no limitation on whose death resulted. Liability is not restricted to just trigger person or the existence of an agency relationship State v Rivera During robbery, the victim inadvertently shoots one of the other victims in an attempt to shoot the robber.

Using Oimen, Court held that to secure a conviction for felony murder, the State need only prove that the D's conduct was a substantial factor in the death of another person. Criminal Liability without Fault and Required Mental State I. Background When we talk about "strict liability" we mean criminal liability imposed without a mental state being required by our offense definition. o General principle: crime requires: Actus reus: guilty act Mens rea: guilty mind o However, affirmative guilty act is not always required (i.e. omissions) Felony murder, homicide by drunk driving: no mental state required II. Federal Rule (Strict Liability) Federal Rule: If it's a common law case and there's a mental element missing, then unless the statute explicitly does away with the mental element, it's assumed to be there. Mental state is required if not mentioned in a statute for common law crimes. Advantages of Strict Liability Easier to prosecute/convict More efficient with high case loads Provides an incentive for maximum compliance with the law Gives the state leverage when plea bargaining Presumption of thoughtful discretion even if intent not required. Thoughtful police/DA would not think of enforcing the law unless it was clear Disadvantages of Strict Liability Punishes people who do not have a particular mental state Punishment without proof of fault Seriousness of the penalties of some crimes are actually substantial prison time

Not appropriate in a system of laws to rely on administrative judgment in lieu of proof of an element

Morissette v United States Morissette was deer hunting; took scraps and sold them. Federal Statute did not have a mental element but Morisette thought the land and its contents were abandoned. Court held that a mental state is required. It's implicit in the statute even though it's not expressly provided for. All theft under the common law had mental state. Neglecting to address a mental state isn't enough to get rid of it, unless Congress was explicitly clear that they intended to do away with it. Morissette was the first case finding a problem with "the law presumes" Court is distinguishing two types of cases: Common law: generally include mental element Public welfare offenses: rules on food, milk, drugs, etc. where strict liability is okay. These do not require a mental state.

III. Wisconsin Rule (Strict Liability) In Wisconsin, the general rule is that there is no mental element if the language isn't included in the statute (State v Hermann). But statutes in the criminal code (939-951) are strict liability unless they use "intent" language. (939.23 Wisconsin Rule: Look at practical elements, text, severity, intent, etc. to determine whether to include a mental element that was not mentioned. It's rare for a court to add a mental state to a statute if it didn't originally have it, the legislature is very unlikely to add one in. 939.23 o provisions of chapter 939 apply throughout the criminal code 939-951) o when intent is an element of the crime, certain words or phrases will be used

State v Hermann Statute said that if a drug sale is within 1000 feet of a school, there's a 5 year penalty enhancer. D found guilty of selling drugs within 1000 ft of school; unsuccessfully tried to have the State prove he knew he was within 1000 ft. Court held that you had to look at the text of the Statute, the history of the statute, and the legislative intent of the statute. o statute does not require mental element b/c it's not in the language of the statute, and couldn't find legislative intent to require a mens rea. Concluded that there was no mental element required for this penalty enhancer.

IV. Mental State in Wisconsin Criminal Code Wis.Stat. 939.23(1) Criminal Intent When it's an intentional statute, it will include "intentionally, with intent to, knowingly, or believes" Converse is true: if it lacks one of those words, no mental state. o (1) Knowingly: believes the specified facts exist o (2) Intentionally: Purpose (or aware it's practically certain) + knowledge of facts necessary to make the conduct criminal which follows "intentionally" in the statute o (3) With intent to: Purpose (or aware it's practically certain) o (4) Criminal intent does not require knowledge of constitutionality o (5) Criminal intent does not require proof of knowledge of age of minor Examples (325):

2nd degree sexual assault with a child No mental state required Mistake of age is not relevant because there's no mental state (nor would it be relevant if "intentionally" included in the Statute) See 939.23(5).

Defenses

I. General Failure of proof defense: If one of the elements of a crime is not proved, a person can't be convicted of the crime. Both mistake and voluntary intoxication negate the mental element of intent, so not affirmative defenses. Mistake: goes to the negation of an element of the crime so the State would have to prove the absence of mistake beyond a reasonable doubt. Voluntary Intoxication Affirmative Defenses: "The elements are proved, but...: (excused or priviliged defenses). It is proper to use "affirmative defense" to refer to a defensive matter that does not negate an element of the crime but introduces a new issue that provides a defense despite all the elements being demonstrated. In Wisconsin, if "some evidence" is introduced, then the burden is shifted to the State to prove the absence of the elements of the affirmative defense beyond a reasonable doubt. Necessity ("choice of evils") Self Defense Involuntary Intoxication Coercion (939.46) Exemption: Death caused by drunk driver - because burden stays on D to show its existence by a preponderance of the evidence.

II. Mistake Standard Wis. Stat. 939.43 "negative defense - negatives existence of state of mind" o (1) Honest error is a defense it if negates the mental state essential to the crime o (2) Not an excuse: existence of constitutionality, meaning of terms, or age of minor Model Penal Code 2.04: o More detailed

3(b) acts upon reliance of an official statement of the law, afterward determined to be invalid or erroneous. Steps for Determining if Mistake Defense is Applicable o (1) Is there a mental state element requires in the Statute? o (2) If so, what is the mental state? (looking at 939.23) o (3) Does the fact negate the mental element? Exercise (349): Statute says it's a crime to "intentionally damage property of another" o (1) He destroys the monument, believing that there is no statute prohibiting damage to property of another No mistake defense: because it does not negate a mental state of intent. Intent does not require existence of knowledge of the penal code. o (2) He destroys the monument, believing that the statute prohibiting damage to property of another is unconstitutional. This belief may be caused by (a) advice of his attorney, and (b) reliance on an onion of the Supreme Court. No mistake defense: Knowledge of constitutionality of the penal code not an excuse (MPC says mistake defense okay) o (3) He destroys the monument, believing that the word "another" in the statute does not include the US Government No mistake defense: Mistake about the meaning of a term not a defense. o (4) He destroys the monument, believing that when he purchased the land he got title to the monument also. Mistake defense allowed. This negates a mental element because he believed it was his own property (Intent requirement requires destroying property of another. Belief you own property negates the mental state.) o (5) He destroys the monument, mistaking the monument for an ordinary rock. Mistake defense allowed. Mistake goes to the mental element of the crime.

o Rule: Mistake doesn't need to be reasonable to be a defense. Subjective test. Even if a mistake is unreasonable, a mistake defense is still allowed. III. Mistake: Case law State v Goodenow Couple charged with co-habitating while married to another; claimed their justice of the peace said it was okay. Court held that they should be convicted. Schultz says: bad reasoning. Arguing presumption of guilty from State v act. Arguing for a flat rule without examining the circumstances. Done in Wisconsin today: Step 1 - no mental state (so mistake is no defense) Exception to the rule: Recognizing fundamental fairness Davis Airport lost regular supervisor; D ran it on part-time basis until applied and was hired for job. Problem: private interest in a public contract - public officer who in a private capacity participates in a public contract. Both town committees approved decision. Court held that D could use the mistake defense even though there is not a mental state required. Step 1: Is there a mental state requirement? No. However, WI Supreme Court didn't recognize this and felt "fundamental fairness" would be violated if a mistake was held. This is an unusual decision for the Supreme Court. Rule: Good faith reliance of illegal act okay when: (1) good faith reliance upon the legal opinion of a governmental official whose statutorily created duties include the rendering of legal opinions as

to actions of specific individual of groups, and (2) the action of any individual or group relying on such an opinion would have to be taken in good faith, open and unconcealed. Garnett v State Facts: Garnett is a young retarded man who had consensual sex with a 14 year old. He thought she was above age of consent at that time.

o Garnett charged with 2nd degree rape. Elements: (1) sexual intercourse with someone 14 years of age; and (2) the person is at least 4 years older. Garnett was mentall retarded and actually believed the girl was older than she was. Issue: Is there a mistake defense (or mental state), and (2) can relevant evidence be introduced, and (3) would the court add an affirmative defense? Majority: Rejected all three parts. Court interprets legislative intent in the wording of the statute as intended to make statutory rape a strict liability crime. If legislature explicitly leaves an element out, the court does not have power to add in a mental element or defense. (This is the mainstream approach taken in almost any case like this) Dissent: Eldridge: Shouldnt be all or nothing, should have something to see if D could appreciate his conduct. o Bell: There's a substantive due process issue - but this has fallen into disrepute; substantive due process not considered as much. o Also argues a presumption that D always knows the age;

Dissent says that when there's an implicit presumption, court should be able to step in for legislature's poor Statute (recall that legislatures can write the statutes the way they want). If this were done in WI, the result would be: o 948.92(2): Second degree sexual assault o (1) sexual intercourse with a (2) person under 16 Step 1: no mental state no mistake defense in Wisconsin o Mistaken belief about age not admissible. IV. Involuntary Intoxication Wis.Stat. 939.42(1): Intoxication defense if "involuntarily produced and renders the actor incapable of distinguishing between right and wrong" i.e. Disproportionate reaction to mediation; spiking a drink; slipping someone a mickey; unknowing; physical coercion; lead poisoning Note: drug addiction - does not constitute involuntary intoxication defense because a person had to voluntarily be taking the drugs at some point. Loveday v State

D was taking meds and drank 41 bottles of beer; claimed to be addicted and wanted to submit defense. Court held rejection of addiction defense as involuntary intoxication for 3 reasons: (1) consistent with legislative intent (2) no reasonable basis for jury to evaluate addiction, and (3) you had to take it voluntary for a while to become an addict; thus, the court holds the person to their action when they voluntarily become the addict. The defense of involuntary intoxication under 939.42 requires that

the condition is involuntarily produced and that the actor is rendered incapable of distinguishing between right and wrong. The Sup. Ct. found that the exclusion of testimony that the defendant was a chronic alcoholic is not prejudicial because the defendant was not able to prove that he could not establish the difference between right and wrong. - Legislative language had intended for involuntary to be intoxication through force, fraud, or mistake. - The difference between the involuntary intoxication defense and the voluntary intoxication defense is that involuntary intoxication requires the accused to show that he could not tell the difference between right and wrong while the voluntary intoxication defense requires that his condition negatived the intent necessary to commit the crime. State v Gardner D's wife wanted to get a divorce; D began taking anti-depressants. D was given a restraining order; however, D went home anyway and raped his wife. Involuntary intoxication defense is available for the effects of medication taken as prescribed. The doctor, however, did not present any information that his intoxication prevented him from distinguishing right from wrong. Thus the testimony was correctly excluded. Involuntary Intoxication Rule: o (1) intoxicated condition must be involuntarily produced o (2) the intoxication rendered the D incapable of distinguishing right from wrong.

Test: Involuntary intoxication defense limited to: o (1) D's unawareness of what the intoxicating substance is o (2) force or duress o (3) medically prescribed drugs taken according to prescription How do you get "involuntary intoxication" to be an "issue" of the case? o It's an affirmative defense, so o Provide some evidence Burden of production to point to some evidence that meets the statutory definition of (1) involuntarily produced and (2) incapable of distinguishing right from wrong. o If D succeeds in bringing in issue, where is the burden of proof (Wisconsin): State must prove the absence of the defense beyond a reasonable doubt. If Jury is not satisfied of absence of intoxication beyond a reasonable doubt: Not Guilty! (Note: No LIOs because involuntary intoxication defense to all lesser crimes)

Note: Involuntary intoxication doesn't require negation of a mental state or any mental state, so it could be a defense to strict liability crimes. V. Voluntary Intoxication Wis.Stat. 939.42(2): Negatives the existence of a state of mind essential to the crime, except as provided in 939.24(3) (Criminal Recklessness) Applies when: cause of someone's intoxication, the required mental element of the crime cannot be proved Hypo D drank all night to serious level of intoxication. He barely makes it home and all the houses in his neighborhood look the same. When D gets really drunk his spatial reasoning gets messed up. He The WI Statute referring to intoxication connects voluntary element to the mental element For recklessness, the legislature made special rule that intoxication can't negate the mental element: "awareness"

enters a house he thought was his but it was really his neighbor's. D charged with criminal trespass. Voluntary intoxication can be a defense in this situation. Edwards v State D stole car. MS Jury instructions said "voluntary drunkenness is not defense to crime." Court reversed because if someone is so drunk they can't form the intent, there is no crime. Voluntary intoxication needs to be considered. State v Schulz D drinks all night, finds ex-gf with new bf. Kills new bf. Judge allowed testimony but messed up jury instructions a bit when he read them. Court held that there were two problems: o (1) When judge embellished "D must establish" 3 times, it sounds like it shifts the burden Voluntary intoxication challenges an element and D doesn't have to disprove anything. o (2) Instructions say D must establish he was "utterly incapable" Too hard of a burden "Utterly incapable" puts a burden of persuasion on the D and that instruction is in error. Dissent: He argues: (1) No statute is required; (2) no instruction is needed nothing would change if there were no intoxication defense; a statute isn't required to spell out why an element of the crime is lacking Rule: The question is not whether someone has the capability to

form intent, but whether he formed the intent for the crime itself. How drunk does someone need to be so they are successful in a voluntary intoxication case? Rule: Drunk enough that the State can't prove you had the mental state required for the crime. *Schultz does not like the majority opinion in this case; goes to dissent State v Nemoir

Rule: In first degree murder case, intoxication is not a defense if the D still possessed the requisite intent to kill. The degree of intoxication required is such a degree that the person is utterly incapable of forming the intent requisite to the commission of the crime charged. Capacity or incapacity to form the requisite intent may be inferred from the acts and conduct of a D as well as from testimony given by D or witnesses on his behalf. State v Guiden Rule: To be relieved from responsibility for criminal acts it is not enough for a D to establish he was under the influence of intoxicating beverages. He must establish that degree of intoxication that means he was utterly incapable of forming the intent requisite to the commission of the crime charged. Additional notes on Voluntary Intoxication: *important* If the WI legislature abolished intoxication statute, would anything change? o No. Chambers v. Mississippi: D has constitutional right to provide evidence in his defense. o Just because drunk person can't remember what they did does not mean that the were unable to form intent. Mitchell, The intoxicated offender: "intent is present in harms by inebriates; typically, what is lacking is control and ethical sensitivity." "Lack of recall does not imply lack of awareness at the time, yet medical witnesses repeatedly make this claim in court." VI. Necessity Wis.Stat. 939.47 All the elements are present but o (1) natural physical force o (2) cause person to reasonably believe (2 parts: D must actually believe it, and it must be reasonable by reasonable person standard) o (3) act (crime) o (4) only means of o (5) preventing death, great bodily harm, or public disaster

Reduces 1st degree to 2nd degree homicide Necessity for reckless homicide? It can be used to defend against either: o (1) the element of the crime o (2) use it to defend against the utter disregard issue o (3) against the entire issue of recklessness (i.e. I drove away recklessly, but it was because I was escaping an avalanche) How do you make Necessity 939.47 an "issue" in a case? o (1) There must be "some evidence" of the elements o (2) State must prove absence of beyond a reasonable doubt. It's a matter of legislative choice to do it this way: See Moes. WI chose to have burden on state beyond a reasonable doubt but it could constitutionally change it so D has to show by preponderance of the evidence. Model Penal Code Standard 3.02 (Much broader than in WI) o Natural physical force not required o Balancing "evils" and "harms" o (a) the harm or evil sought to be avoided by such conduct is greater than that sough to be prevented by the law defining the offense charged. Schoon *important case* D was protesting to keep American tax dollars out of El Salvador; D threw blood in IRS building and obstructed operations. D proffered testimony about conditions in El Salvador as the motivation for their conduct. Test of Necessity: (1) they were faced with a choice of evils and chose the lesser evil, (2) they acted to prevent imminent harm, (3) they reasonably anticipated a direct causal relationship between their conduct and it had to be averted, and (4) they had no legal alternatives to violating the law. Court held that indirect civil disobedience (violating a law which is not, itself, the object of the protest) can never meet the standard of necessity.

State v

In these cases, there's not a direct connection between the criminal activity the D is doing and their goal. No choice between evil: The lawful policy of US government cannot fulfill the "evil" definition in the sense it would be used in necessity cases. Danger wasn't imminent - protesters have other options. A district court may preclude a necessity defense where "evidence as described in defendant's offer or proof is insufficient as a matter of law to support the defense." State v Olson Disorderly conduct in protesting a shipment of spent fuel from a State v nuclear plant. Court held that necessity is limited to the pressure of natural forces such as "storms, fires, and privations." Horn Entering abortion clinics Court held that it is unreasonable for the D to believe that one must commit an act of criminal trespass in order to prevent an activity that is legal and constitutionally protected. Anthuber

State v

D wanted to use necessity defense because he was addicted to drugs Court held rejection of defense - D was responsible for this condition. However, "hypothetically, D could have become addicted to drugs because of negligent medical treatment. In such circumstances, a necessity defense might apply because he would not have been the responsible party for his condition." VII. Self-Defense 939.45 Privilege The fact that the actor's conduct is privileged, although otherwise criminal, is a defense to prosecution for any crime based on that conduct. . . Wis.Stat. 939.48 (Perfect Self-Defense) May use/threaten force when person reasonably believes: (1) To prevent or terminate "unlawful interference" (conduct is criminal or tortuous)

(2) Reasonably believes "unlawful interference" creates imminent death or great bodily harm (3) Reasonably believes force used was necessary to prevent imminent death or great bodily harm to self (necessary: common sense meaning)NO MORE FORCE THAN NECESSARY Note: (A) Provoking others ends privilege unless action (B) retreats then privilege is regained. Unnecessary Defensive Force: Wis.Stat. 940.01(2)(b) (Imperfect SelfDefense) (1) Actually believed danger of death or great bodily harm (2) Actually believed force was necessary (Head) D may use evidence of victim's violent character and past violent acts to show factual basis that D actually believed she was (1) in imminent danger of death or great bodily harm and (2) force ws necessary even if belief was unreasonable. State Burdens: Perfect Self-Defense (objective threshold: actual belief + reasonable belief) o D could actually and reasonably believe defense is necessary but still be wrong o State would have to show the defense was not reasonable. Imperfect Self-Defense (subjective: actual belief, but not a reasonable belief) o For mitigating circumstance of imperfect self-defense there is no reasonableness requirement. o For State to disprove imperfect self-defense, State needs to show that D didn't actually believe one of the elements. Application in Cases: Burden Allocation: State legislatures can choose how they allocate the burdens for self-defense. o Wisconsin Rule: If D introduces "some evidence" of selfdefense, then the State has to prove the absence of the elements of self-defense beyond a reasonable doubt. o Ohio Rule: If D introduces "some evidence" of self-defense then D has to prove by the preponderance of the evidence that he fulfilled the elements of self-defense.

Martin v Ohio D had argument w/ husband and was hit. She retreated upstairs and returned with his gun, husband questioned her and then came at her, and she fired 5-6 times and hit him 3 times killing him Involved Ohio rules on self-defense and murder. In Ohio, murder: (1) cause death, (2) purposefully; (3) prior calculation and design o Ohio Self-Defense: (1) D not in fault in creating situation; (2) honestly believe imminently in danger; (3) defensive force only mechanism; (4) didn't violate duty to retreat o D has the burden of persuasion on privilege of self-defense; Court held it didn't violate the Constitution because selfdefense was a new issue that didn't conflict with the elements of the crime (See Patterson) o Dissent: Main concern is that if there's an equally balanced case. If the evidence on self-defense comes in balance (jury in equipoise), the Jury has to find the D guilty. Reasoning: Conviction did not violate Due Process since it did not seek to shift to D the burden of proving any of elements of crime charged. The jury instructions were adequate to convey

that all evidence must be considered in deciding if state proved case. While all but 2 states including OH require the prosecution to prove absence of self-defense when properly raised by defendant this requirement is not unconstitutional Note on WI Rule: In WI, if the evidence is equally weighed (for self-defense or an affirmative defense), the D is found not guilty because the burden is on the State to prove beyond a reasonable doubt. Wis. Stat. 939.49 Defense of Property. "It is not reasonable to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defense of one's property. o Wisconsin Case: D is in this apartment with his gf. He sees 3 people outside breaking into gf's car - gets a gun - kills one guy. Jury found him guilty of first degree intentional homicide. State v Marshall Person irritating D's wife; D kills him.

 State v

D was not in imminent danger nor did he apprehend the danger because hammer was grabbed after the shooting. If done in WI there would be a similar result because of imminent danger issue Rule: Whenever there is evidence for perfect self-defense, there is sufficient evidence for imperfect self-defense. Gomaz History of abuse of D by victim; D had been beaten day before; she was short; victim very large. D held up knife and victim ran into knife (but two knife marks) D raised perfect self defense (939.48(1)) but lower court did not allow for "unnecessary defensive force" (930.01(2)(b)). Court held that whenever perfect self-defense is raised, imperfect self-defense should also be raised. Examining Gomaz with Perfect Self-Defense o (1) evidence that there was an unlawful interference? Prior assaults o (2) faced with imminent threat of death or harm? Prior history, harmed before adding reasonableness to

her belief o (3) Evidence that it was necessary to use force to terminate it? (and necessary to use deadly force?) what else would she do to keep him away? Can consider evidence on relative size of individuals State v Head *Schultz says great summary of law* 27 guns - D shot deceased - afraid he was reaching for a gun to shoot her. History of abuse. She didn't mean to shoot him and she didn't know it was loaded. Court held that the trial court erred in denying self-defense. New trial. She should have had opportunity to introduce unnecessary defensive force. (Victim's violent character and prior acts should have been considered for whether she believed it was necessary and there was imminent danger of death of GBH). How to admit self-defense at trial: o State starts with

 (1) cause death (2) intent to kill o If some evidence of unnecessary force, then State needs to show absence of (3) unnecessary force o What is the sufficiency of evidence needed to raise unnecessary defensive force (1) Actually believed danger of death or great bodily harm (2) Actually believed force was necessary For state to disprove imperfect self-defense (unnecessary defensive force), State needs to show that D didn't actually believe the above 2 issues. o To get complete privilege: D reasonably believed (1) Unlawful interference (2) imminent death or great bodily harm (3) force necessary

Attempt
I. The Standard Attempt is an inchoate crime (begun, but not completed) -939.66(4) Attempt: is always a lesser included offense even for strict liability crimes (is ok to add the mental element of intent -If not charged the more severe crime of attempt, could charge with attempt of a lesser included offense Policy Debates for Criminalizing Inchoate Crimes Pro: Con: Innocent may be charged. Without a harm, there is a risk of innocent inference. Not a particularly consistent way of dealing with intent Allows the police to intervene when they can still prevent harm Can punish those manifesting a willingness to break the law

Model Penal Code 5.01- Divides the cases into three types: 5.01(a) ("impossibility") - Those where the actors conduct would constitute a crime if the circumstances were as he believed them to be 5.01(b) ("shot and a miss") - Those where the actor has completed conduct that he expects to cause a proscribed result 5.01(c) ("preparation v. attempt") - Those where the actor has not yet completed his own conduct, and the problem is to distinguish between the two acts of preparation and criminal attempt. - Substantial Step- Conduct strongly corroborative of the actors purpose. The model penal code allows renunciation as an affirmative defense

WI - 939.32 Requirements 939.32(3) o 1 Intent (to perform acts and attain result, which if accomplished, would constitute a crime) o 2 act (towards the commision of crime) which demonstrates unequivocally that actor had intent would commit crime except for the intervention of another person or other extraneous factor * Penalty o 939(1g) half of the maximum fine for the completed crime o 939.32(a) except crimes with a maximum life in prison penalty are downgradwd to a class B felony.

*NOTE: (Hamiel/Stewart)-STATE DOESN'T NEED TO PROVE THE EXISTENCE OF INTERVENING PERSON/FACTOR. Shot and a miss

Actor did everything he intended to do but failed to complete the crime. Test: Do the acts clearly indicate D unequivocally intended and would have committed the crime? State v Judge o Guy puts hacksaws in candy bars and places them under truck outside prison in attempt at prison break. He had done everything he planned to do to accomplish prison break. Candy bars were discovered. o Court holds that D was guilty of attempt b/c intent was no

longer equivocal once he placed weapons under truck. To constitute an attempt the acts of the D must go so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances. Purchasing the blades was not a crime but placing the paper bag containing the candy/blades under the county truck was an unequivocal act that would have resulted in accomplishment but for intervening circumstances unknown to him Preparation v Attempt Test: Have you gone beyond mere preparation to cross the line into attempt?Has the bell been rung? o (1) Equivocally Test: WI Standard, test today o (2) MPC: "Substantial step" test o (3) Holmes: (Hyde, Rizzo) Dangerous proximity to success o (4) Stop the Film Test: (Stewart) Probable desistance (given what actor has done, is it probable that he would have desisted - not committed the crime) o (5) Locus poenitentiae: the place at which the actor may repent and withdraw People v Miller o miller threatened to kill guy who annoyed his wife. miller takes gun to field, doesn't raise it, man who had annoyed his wife runs away feeling threatened. Miller lets owner of the field take the gun away. o Mere intention to commit a specified crime does not amount to attempt. Preparation alone is not sufficient. The act

must reach far enough toward the accomplishment of the desired result to amount to the commencement of consummation. There must be an appreciable fragment of the crime committed. People v Rizzo o Rizzo and his friends drive around looking for a specific guy they want to rob. They don't find him. o law: attempt requires 1. intent 2. action "immediately and not remotely ocnnected with "commiting the crime/ "in dangerous proximity to success" o result: not guilty. there was no act immediately connected to the crime/in dangerous proximity to success.

Impossibility Actor is mistaken about the circumstances D can still be held liable even though there was a mistake by D (because he (1) has intent and (2) commits act which shows unequivocally that he would commit the crime except for this intervening factor and that he has intent) "legal impossibility" and "factual impossibility" cases (Schultz points out these descriptions are unclear) Majority Rule: (Kordas) If you have intent to commit a crime, and take an unequivocal action showing that intent, and that you would commit the crime without outside intervention, you can be found guilty of intent even where completing the act would not constitute a crime.

o ex. attempting to buy an item you think is stolen is still a crime, even if the item isn't stolen. Minority Rule: (Booth) Legal impossibility is a defense to attempt. Factual impossibility is not a defense to attempt. o ex. attempting to buy an item you think is stolen is not a crime because if successful, the result would not be a crime. but pickpocketing a guy without money is still attempt State v Kordas (WI 1994)

facts: D purchased what he thinks is a stolen motorcycle from an undercover officer. In truth the cycle was provided to the Milwaukee police department for educational purposes. holding: o if you buy something that you think is stolen, you commit attempt to receive stolen property, even if the property isn't actually stolen. o legal impossibility is not a defense to an attempt to commit a crime, absent Ds mistake. (in WI) WI Rule: 939.32 + element from 943.34 (receiving stolen property) Elements: o (1) property is "stolen"; o (2) D receives it; o (3) D knows property is stolen. D can't be convicted of the actual crime itself because the item wasn't stolen, but he could be convicted of an attempt to commit the crime. "attempt" is a completely subjective test

State v Damms (WI 1960) (example of "factual impossibility" in attempt to kill not being a defense to attempt.) Estranged husband and wife. Pulls trigger to shoot wife, but there were no bullets. o D argued that impossibility barred his attempt liability. court holds that it really was not. the extraneous factor was the fact there were no bullets in the gun. impossibility not apparent to the actor shouldn't absolve the actor for attempting to commit a crime he intended to commit. except for the intervention of some extranuous factor, (the fact the gun was unloaded) he would have killed his wife. Commonwealth v Johnson Quack doctor said he'd cure disease by rubbing a name over some fake electrical machine. The police had a sting and they arrested D

when accepted money for this crime. At no time did the potential "victim" (the police) believe in the fraud. Issue: o Can you attempt to obtain money by false pretenses if the other party knows that the pretenses are false? (can you use impossibility as a defense against attempt in this case?) o Can you commit "attempt" if you've completed part ofthe crime? (e.g. he accepted the money when he was arrested) Holding: o You can be guilty of attempt if the other party knows that the

pretenses are false. This is a factual impossibility, not a legal impossibility. o Yes. You can commit "intent" even though you've committed part of the crime. (the intent is to do the unfinished part of the crime.) Booth v State (OK 1965) D was charged with the crime of receiving stolen property. He bought a topcoat that he thought was stolen. He's found not guilty. You can't have "attempt" for trying something which if successful, would not be a crime. o legal impossibility is a defense to attempt in OK. Berry A guy shoplifts a coat and puts it in his parka. A store clerk wrests it back from him, but until then, it was in his possession. D argues that his completion of the crime is a defense to "attempt." Court finds that failure to commit the crime is not an element of "attempt." Completion of the crime is therefore not a

State v

defense to "attempt." o An unequivocal act accompanied by the requisite intent is sufficient to constitute criminal attempt, regardless of whether or not attempt was succesful. II. Renunciation and Abandonment Wisconsin Rule v. MPC MPC: 5.01(4) Renunciation of Criminal Purpose o Voluntary renunciation is an affirmative defense

WI Rule: o Once you cross that line, you can't un-ring the bell o Even if the D decided to stop on his own with no outside factor o Stewart says it's up to the legislature to make that rule. If D crossed the "probable desistance" line, D cannot do anything to escape criminal liability. Hamiel v State (WI 1979) Defendant entered Andrews Pharmacy and demanded the cashier bag the money he averred I got a gun and had his hands in his pockets. When another witness approached him and recognized what was happening and attempted to retreat he further threatened Dont, stay right there, if you go back there I will shoot her. The defendant subsequently abruptly left the store. There were two possible intervening factors present: (1) The store owners approach (2) A police paddy wagon that went by In order to prove elements of attempted robbery, state must show o 1 D's actions in furtherance of the crime clearly demonstrate, under the circumstances that he had the req. intent to commit the crime of attempted robbery and o 2 D took sufficient steps in furtherance of the crime that it was improbable that he would have voluntarily terminated his participation in the commission of the crime. (NOTE: THIS IS NOT THE UNEQUIVOCAL TEST FROM THE STATUTE) Holding: o Whether another person or other intervening extrinsic force is present is not material to the inquiry. State does not need to

prove there was any extrinsic force to frustrate D's plan. o What the state needs to prove is whether the accused was likely to voluntarily cease and desist from completion of the criminal act. (NOT UNEQUIVOCAL TEST) State did so in this case, so D loses appeal. o State v Stewart

3 guys (including D) approach a man at a bus stop. They block exits. D asks the man for change-Man refuses. D reaches for towards his waist. Other guy trapping the man in the bus stop says "put the gun away." Court finds that D was guilty. He had intent do steal, and did an act which passes the Stop the Film test showing that he wouldn't have voluntarily desisted. His later voluntary abandonment isn't a defense, because it occurred after attempt. o Intent may be inferred from the defendant's conduct, including his words and gestures taken in the context of the circumstances. o Attempt does not require the state to prove the existence of an extraneous factor as a third element of the crime of attempt. (hamiel) o Stop the Film test: accused's acts should be viewed as a film in which the action is suddenly stopped, so that the audience may be asked to what end the acts are directed. "If there is only one reasonable answer to this question then the accused has done what amounts to an 'attempt' to attain that end. If there is more than one reasonably possible answer, then the accused has not yet done enough." the aim of the stop the film test is to determine whether the D's acts unequivocally demonstrate an intent to commit the crime rendering voluntary desistance from the crime improbable. o Voluntary abandonment after attempt is fulfilled (intent+unequivocal act that shows only circumstances beyond his control would prevent the crime) isn't an

affirmative defense for attempt. How to Apply Stewart and Hamiel to the statute STEWART DEFINES THE ELEMENTS OF THE CRIME AS DIFFERENT FROM THE STATUTE. IT DOES SO BASED ON HAMIEL. BUT ON THE EXAM, WE SHOULD STILL FOCUS ON THE STATUTE o mention "probable desistance" (stewart) as helping to define the "unequivocal" nature of the act (statute). the elements are still those of the statute:

1 intent 2 acts which demonstrate unequivocally had intent would commit the crime without extraneous factor.

III. Attempt vs Non-attempt crimes Attempt crimes ADD an intent issue to a crime. So this can work for strict liability crimes but not for recklessness crimes where intent would conflict with the awareness requirement: it would turn awareness crime like recklessness into an intent crime which wouldn't have made any sense. o Thus, it does not make sense to talk about attempt in reckless homicide because it adds intent. Strict liability: can have attempt strict liability (even though no intent or awareness) o i.e. Sexual contact crimes Requires sexual contact with 16 year old o Attempt is possible in strict liability You can attempt and intend to have sexual contact with a person under 16 o Attempt is possible in strict liability Attempt just adds an intent element.

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