Criminal Law Outline - Midterm

I.

Justification for Punishment

A. Regina v. Dudley and Stephens - page 73
1) Facts - Dudley and Stephens with Brooks and Victim were cast away in a storm. They had no sustenance. D & S suggested killing V for food b/c he had no family and was young, and would likely be the first to die. B dissented. S & D killed V (would have died w/o eating V). They were rescued four days later, and prosecuted for murder. TC rejected the necessity defense (self-defense) b/c to save your own life you may not lawfully take the life of another, when the other is neither attempting nor threatening to take yours, nor any illegal act toward another. The duty to sacrifice your life for anothers is higher than a duty to preserve your own life. 2) Policy The law has an obligation to hold everyone to a higher standard, which we might not always be able to meet slippery slope to rebut. This holding is in contrast to the custom of the sea for sailors. However, the punishment can be discretionary on these mitigating circumstances. The circumstances can relate to the blameworthiness, but not the crime itself. 3) The Principle: Homicides committed under extremely dire circumstances, such as killing by D&S, cannot be justified by the affirmative defense of necessity.

B. Retribution - Punishment is justified when it is deserved (Moral Desert)

1) Retroactive backward looking 2) Relies on the principle of equality moral balance in society. If a person violates societys equilibrium, he becomes a free rider, and by punishing the wrongdoer society is made whole again. 3) It is morally right to hate criminals because they are evil. 4) Focus is on the criminal act and the actor; Rightness/ wrongness of the actor. 5) Blameworthiness and the level of desert what punishment do you deserve? 6) Constrained by the principle of proportionality of punishment. 7) Considers the rightness/wrongness of the punishment regardless of the consequences.

C. Utilitarian Forward looking; justification lies in the useful purposes punishment serves; rehabilitation,
deterrence, incarceration 1) Focus is on the potential consequences of punishment and judicial or legislative decisions about punishment 2) Focus is on society-wide effects of punishment no punish unless there is societal benefit 3) Emphasis on the importance of decreasing dangers and harms to other people 4) Not restrained by proportionality concerns for punishment 5) Humans are rational actors (economic theory of law) weigh the costs and benefits of their actions before deciding to commit a crime. a. Offenders must know the rule b. Cost of violating a rule must be greater than perceived benefit. c. Increase the risk of conviction; or increase the severity of punishment 6) General Deterrence person is punished to convince overall society to forego criminal conduct in the future. a. Person is a means to the end of reducing crime b. Persons punishment teaches society what is impermissible c. Punishment creates fear based on punishment, stigma, and societal outcast 7) Specific Deterrence punish the specific person to deter repeat crimes 8) Rehabilitation make criminals safe to return to the streets; and lead successful lives. a. Criticism: diverts resources from more deserving groups; treatment instead of punishment is morally blind; success is arguable (may work better for high-risk offenders) 1

Criminal Law Outline - Midterm 9) Incapacitation remove people from the population b/c they are dangerous a. Cost-effectiveness of incapacitation how many crimes are really prevented for the cost? Highly debatable generally thought to be overly costly for the societal benefits.

D. Karla Faye Tucker Tucker committed heinous murder. Convicted and sentenced to death. Completely
reformed on death row. Should her death sentence be commuted? 1) No: deterrence floodgates closed; moral balance concerns; punish the act, not the actor; 2) Yes: no future threat to society

E. Station Club Concert Fire Case p 85 fireworks kill 100 people; D convicted sentenced to 4 yrs
prison. Was this sufficient punishment? Consider: gravity of crime; mens rea, deterrence, future policy concerns

F. Cases of Tenneson (coercive indoctrination) and Sandifer

o Deterrence o Specific o General o Tenneson His crime should be deterred, and therefore a punishment should be invoked. However, his crime is more understandable given the circumstances. (do anything to survivie) Need for less rehabilitation, but the significant psychological damage that could have occurred due to the war camp should definitely be addressed. Less of a need for incapacitation because his crime does not put the public in danger. o Sandifer Greater need for deterrence because of the child crime epidemic for kids in his neighborhood. The case was prefaced by local parents hoping to deter their own children from a life of crime. More rehabilitation because of the age of the child and the circumstances in which he grew up in. Need to be incapacitated for some time, but the concern for rehabilitation in that period of incapacitation should be greater.

Rehabilitation

Incapacitation

II.

Actus Reus the culpable act there must be a will and an act
A. Voluntary Acts 1) MPC 2.01(1) page 1081
a. No person is guilty of an offense unless his conduct includes a voluntary act or omission to perform an act of which he is physically capable. b. An act is defined as a bodily movement whether voluntary or involuntary

**Note that both retributivism and deterrence are thwarted, if the actor did not have free choice.

Criminal Law Outline - Midterm

2) Martin v. State page 182 Involuntary Drunkenness in Public a. D appeals from TC conviction of drunkenness on public highway. Police arrested D at his house, and forcibly carried D into public. b. To be liable D must: (1) appear in public and (2) be boisterous/indecent, (3) while drunk. c. Court held that all components of the statute must be met voluntarily. i. Actus reus is determined at the time the act occured d. D not liable b/c he didnt voluntarily appear in public the nature of him becoming drunk, and D voluntarily being indecent doesnt matter w/o a voluntary appearance. e. For an act to be voluntary it must be your brain moving your body. f. Policy: purpose of statute argument (precedential) - what is the statute trying to accomplish? Prevent disturbing the public via voluntary drunkenness; police taking D into public does not violate this policy goal. Therefore, no liability. g. If police demanded D come out of his house, rather than forcibly carrying him, then D did voluntarily appear in public. This is a voluntary choice D can opt to be carried. 3) People v. Decina page 189 Epilepsy Case Chain of Causation a. D had an epileptic seizure while driving; the court convicted D because he deliberately decided to drive, knowing he was susceptible to epileptic seizures. b. There was no actus reus to become unconscious at the time of the accident. c. Court followed chain of causation back to his actus reus to drive knowing he could seize. d. Why didnt chain of causation apply in Martin? Initial voluntary act must be the proximate cause of the involuntary act causing harm.

B. Involuntary Acts 1) MPC 2.01(2) page 1081

a. The following are not voluntary acts: (a) reflex/convulsion; (b) unconscious or sleeping bodily movement; (c) conduct during hypnosis; (d) any movement not the product of the actor, either conscious or habitual act not caused by actors brain. 2) People v. Newton page 184 Unconscious Police Killer a. D gets into altercation with police; D was shot in stomach; then D shoots police officer. b. TC convicts D of voluntary manslaughter D appeals c. D claims he was unconscious after being shot no memory from shot until hospital. d. Court found a full defense under the unconsciousness excuse. e. Where not self-induced, as by voluntary intoxication or the equivalent, unconsciousness is a complete defense to a criminal act (criminal homicide). f. For an act to be voluntary it must be your personal mind moving your body, consciously. g. Unconsciousness includes the typical physical conception and situations with complicated acts while the D is not, at the time, conscious of acting. 3) Sleepwalking Defense Cases (Somnambulism) a. Cogdon Case page 188 i. D suffered from bad dreams b/c of medical condition sleep walking and performing acts in real life from her dream. D killed daughter during one dream. ii. D was acquitted on the affirmative defense of sleepwalking. b. Canadian Case (Parks) page 189 D drove several miles to kill in-laws. Long history of sleep walking, under considerable stress innocent 3

Criminal Law Outline - Midterm c. Falater murdered wife, hid weapon/bloody clothes, cleaned up, drowned wife to make sure she was dead after stabbing too many complicated acts for sleepwalking guilty d. Medical Evidence, Medical history are relevant, D must make an affirmative showing 4) Why raise an actus reus defense under one of the nonvoluntary acts? a. Actus Reus excuse defense allow you to walk out of the courtroom if acquitted. i. No human act occurred. Whose act is it? b. Mens Rea mistake defenses (insanity) requires civil incarceration upon acquittal c. Must be free choice by the actor. You cannot punish people just for being (cant punish people for sleeping) must be actus reus. (LA Ordinance Case) d. Retributivism & deterrence are thwarted in the absence of a free choice by the actor. Respect peoples autonomy. e. Habit MPC states this is a voluntary action

C. Omissions
1) MPC 2.01(3) page 1081 a. Liability for an omission is permitted in two situations: (a) the law defining the offense provides for the act omitted; or (b) if the duty to act is otherwise imposed by law. b. There must be a legal duty to act for an offense to be culpable. 2) Jones v. U.S. page 192 a. TC convicted D of involuntary manslaughter for death of a 10 month old boy. Baby was living with D, and there was conflicting evidence as to whether babys mother was with them too, and whether D was being paid to care for the baby. b. D appealed on the ground that she had no legal duty to care for the baby, and TC failed to instruct the jury as such. c. Court overturned TC conviction stating that a legal duty to provide care was not necessary, and that the TC should have instructed the jury that in order to convict D, it must find that she had such a legal duty to the V. 3) Four situations where omissions constitute a breach of legal duty: a. Where a statute imposes a duty to care for another (Good Samaritan law) b. Where one stands in a certain status (legal) relationship to another (Pope); i. Parents have a duty to aid minor children; spouses similarly to each other ii. Siblings owe no duty, parents owe no duty to adult kids; adult children have no duty to their parents c. Where one has assumed a contractual duty to care for another; and i. Commonwealth v. Pestinikas page 194 D convicted of murder because he allowed 92yr-old man to die of starvation after agreeing to feed him, knowing victim couldnt feed himself. d. Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. (Billingslea?) 4) Pope v. State page 194 pyscho mom beats kid moral duty legal duty a. D takes in mother and her son. D watched as mother beat infant, and did not call authorities. Child dies. TC convicted for child abuse & misprision (duty to report). b. Court reversed b/c the mother was always present and D was not responsible for the care of the child b/c she did not assume responsibility for child. c. Statute by act or omission physical child abuse resultant from cruel treatment/malice acts. To cause child abuse a person must be a parent, adoptive parent, loco parentis (in place of parent, or responsible for the supervision of a minor. 4

Criminal Law Outline - Midterm d. How does one adopt responsibility for someone? just feeding and providing a bed is not enough in this court although it is arguable. e. A moral duty to act does not presuppose a legal duty to act. f. People v. Beardsley p 202 D had mistress over while wife was out of town. Mistress killed herself with drug overdose, and TC convicted D of manslaughter for not calling an MD for help. Court held that moral duty legal duty, therefore not liable. g. People v. Carroll p 202 stepmother charged with child endangerment by not acting to protect her husband from killing his daughter. Stepmom owed duty of care. h. State v. Miranda p 203 live-in bf failed to protect four-month-old baby from a fatal beating by the mom. Convicted of assault; on appeal court reversed no duty 5) Ray Billingslea - Rays mom became bedridden. Ray didnt let his niece in to see the mom; even though she was a regular visitor. Rays mom died in hospital a few days after she was discovered by police. TC convicts D; judgment later vacated because the language of legislation was vague, and D did not assume duty to care for mom. a. Talk about whether he assumed the duty to care for his mom and whether he prevented others from providing aid. Ray did not have a contractual or statutory duty. 6) Commonwealth v. Cardwell page 204 Moms failure to rescue child Child Abuse a. D fails to get her child away from sexually abusive step-dad found guilty of child abuse. b. Court held that the steps taken to fulfill a duty must be reasonably calculated to succeed, even if they do fail. c. Duty to save daughter is greater than duty to preserve her own life. 7) Good Samaritan Statutes page 200 201 a. Why do the majority of our states not have them? i. No good deed goes unpunished ii. Getting involved subjects people to a number of inconvenient responsibilities iii. Too must subjectivity w/ inferring the act being committed (who is attacking who?) iv. Individual autonomy should be preserved in the criminal law. b. VT Statute v. Germanys Statute p 200 8) Duty by creating another persons peril page 205 a. Jones v. State page 205 one whose criminal act puts another in danger of drowning has a duty to preserve that persons life. b. Omissions after acts sometimes result in criminal liability for omission (even if the act was innocent) i. D bumps V, causing V to fall in water and drown. D watches V drown D liable ii. D bumps V, causing V to fall in water and drown. D doesnt know it happened D innocent c. Whenever Ds act, though w/o his knowledge, imperils anothers life, liberty, or property, and D becomes aware of the events creating the peril, D has a duty to take reasonable steps to prevent the peril from resulting in the harm.

III.

Mens Rea Culpable Mental States page 213

A. Mens Rea Defenses - blameworthiness and punishment are unwarranted in the absence of choice: (a) involuntary
act; (b) duress; (c) legal insanity; (d) accident/mistake

B. MPC 2.02 (1) Minimum Requirements of Culpability page 1082

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Criminal Law Outline - Midterm 1) A person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, wrt each material element of the offense.

C. MPC 2.02(2) Kinds of Culpability Defined page 1082 1) Purposely (i) if the element of an offence involves the nature of his conduct or the result of his conduct, it
is his conscious goal to engage in conduct of that nature or to cause a result; and (ii) if the element involves attendant circumstances, he is aware/believes/hopes they exist. a. Proof must be drawn from circumstantial evidence b. Ds conscious purpose was to cause the result in fact 2) Knowingly (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain his conduct will cause such a result. a. No intent for the offense that occurs is required. i.e., D blows up plane with the objective to kill one person. He has knowledge that the other 99 passengers will die. 3) Recklessly consciously disregards a substantial and unjustifiable risk that the material element of an offense exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actors conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actors situation. a. Must prove D had knowledge of a risk to commit an offense, but still chose to act. Conscious risk creation. Risk should be substantial and unjustifiable b. i.e., D puts bomb in bag to destroy plane. D doesnt know if people will be on the plane when it blows up. Bomb kills baggage carrier. D reckless b/c aware of risk. 4) Negligently when a person should be aware of a substantial and unjustifiable risk that the material element of an offense exists or will result from his conduct. The risk must be of such a nature and degree that the actors failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actors situation. a. No proof needed for knowledge of risk. Must prove that a reasonable person would have taken due care in a situation D did not. b. No state of awareness required, even for the risk. 5) Strict Liability no mental culpability is ever needed. Standard based on actus reus, no regard for mens rea

D. MPC 2.02(3) Culpability Required Unless Otherwise Provided page 1082

1) When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly, or recklessly wrt the offense. a. Negligence should be excluded unless explicitly prescribed (exceptional liability basis)

E. MPC 2.02(4) Prescribed Culpability Requirement Applies to All Material Elements p 1082
1) When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, w/o distinguishing among the material elements, such provision shall apply to all the material elements of the offense, unless a contrary purpose is apparent.

F. Regina v. Cunningham page 214 Gas meter theft Malicious act intentional purpose or foresight of consequence of actions
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Criminal Law Outline - Midterm 1) D ripped gas meter from gas pipes to steal money. This released gas into the house and endangered the life of V. TC convicted D of maliciously endangering V, although he had no intent to endanger a life. 2) Maliciously was defined as wickedness (wicked intent) to the jury. TC said they only had to find the D acted wickedly. D appealed on an erroneous mens rea instruction. Court quashed the conviction. 3) A more proper definition of malice is requiring either an a. (i)actual intention to do the particular harm done; or b. (ii) recklessness as to whether the harm could occur or not (i.e., D foresees the particular harm that might be done from his acts and takes the risk of it regardless). Not limited to nor requires any ill will toward person harmed.

G. Regina v. Faulkner page 216 Rum thief Specific Intent for specific act; knowledge is evidence of specific will and intent
1) D tried to steal rum, lit a match, and accidentally enflamed and destroyed the ship. D convicted of maliciously setting fire to the ship. TC stated that if found stealing rum, and fire occurred, D guilty. Reversed on appeal for an erroneous instruction. 2) Must find specific intention for the act to convict under that mens rea standard of malice. Intention and will may exist in, or be proved by the fact that D knew harm was a probable result of the original unlawful act (Substantial Knowledge). 3) May be negligent though

H. Specific Intent v. General Intent

1) General Intent D commits a proscribed act (i.e., battery). can be convicted of an intentional action. No proof of further objective. (i.e., D B&Es into a building. D is guilty of trespass, so long as he acts intentionally (knew the nature of the acts he performed). a. When no particular mental state is set out by the statute (any blameworthy mind accepted) b. Awareness of the specified attendant circumstance is unnecessaryreckless/neg is enough 2) Specific Intent- actions done w/ specific further purpose in mind. Mens rea element usually explicitly stated in definition of the crime. (i.e., battery to rob). Conviction requires proof of further specific purpose to commit a felony. a. (i.e., burglary requires a Breaking & Entering, and the objective of committing the felony once inside; the latter must be proved or there is no burglary). b. Specific intent cannot be assumed from the act itself, general intent can. c. Specific intent requires awareness of specified attendant circumstance d. Another usage of specific intent is to describe a crime that requires the D to have actual knowledge of some particular fact or circumstance, i. Bigamy prohibits a married person from remarrying while still legally married. One element of the offense relates to the Ds conduct (remarrying) and another relates to an attendant circumstance a background fact (being married already) that is crucial for determining whether the conduct is harmful. ii. It is clear that the conduct element of bigamy must be intentionally committed. However, the attendant circumstance element is unclear: iii. If a jxn did not require proof that the D knew he was still married to another, this is a general intent crime. In this context general intent crime is one for which the awareness of the attendant circumstance need not be proved; some lesser mental state - recklessness or negligence - will suffice. iv. In contrast, if a jxn requires proof that the D knew he was still legally married to another, then this is a specific intent crime. This type of specific intent would require proof of an intent to 7

Criminal Law Outline - Midterm engage in specified conduct but would also require proof of actual awareness of the specified attendant circumstances.

I. Knowledge and Probability of Knowledge page 229

1) MPC 2.02(7) p 1082 When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist. 2) US v. Jewell p 229 Jewell instruction knowledge of high prob of illegal conduct;

purposely contrive to avoid learning truth

a. D convicted of knowingly transporting drugs in car. D claimed no knowledge. D convicted b/c he had a conscious purpose to avoid learning the truth b. Jewel Instruction: (i) D was subjectively aware of high probability of illegal conduct; (ii) D purposely contrived to avoid learning of illegal conduct c. D unfriendly instruction b/c it broadens the definition of knowledge; D friendly b/c it is a subjective standard. d. US v. Giovannetti D convicted by TC of aiding gambling operation w/ J-instruction wrt him knowing the renters were gamblers and him being a gambler. TC reversed b/c D did not act to avoid learning the truth either mentally or physically. D simply lacked curiosity e. Policy impose a duty to investigate rented property? Force curiosity? Failing to inquire v. affirmative act. f. MPC focus inquiry only the subjective knowledge of the actor. What does having the purposely contrived element do? It helps maintain some level of objectivity in the standard. It also limits the number of cases that get Jewell instructions. And if it wasnt there this would almost alter conduct so that people must act as good Samaritans all the time, inquiring into anything that could be possibly contrived as potentially illegal based on their subjective knowledge of particular circumstances. The case of Giovannetti would likely have come out the opposite.

J. Negligence Standard as a response to difficulty to establish particular Mens Rea p 220

1) State v. Hazelwood p 221 Criminal Negligence > Civil Negligence a. D ran ship aground spilling oil into eco-sensitive water. TC convicted D of a criminal act under a statute, using civil negligence. TC affirmed Both negligence standards require D to fail to perceive a risk that a particular result will occur. Civ Neg. OK. b. Criminal negligence requires a greater risk, so as it constitutes a gross deviation from standard of care a reasonable person would observe. Neg., rather than gross neg., assures that crim penalties are only imposed when the conduct can be reasonably deterred. 2) Santillanes v. New Mexico p222 a. D cut 7yr old nephews neck with a knife during altercation, and was convicted of child abuse. Offense defined as, negligently causing child to be placed in situations endangering life or health. Court instructed jury on a civil negligence standard b. TCs use of civil neg. was erroneous. There must be criminal neg. Criminal intent is an essential element of a crime, unless a statute intented to omit the mens rea standard. c. Use criminal negligence standard when the harm is much greater and deserving of a

greater blameworthiness, only criminally culpable acts that result from a GROSS deviation from a reasonable standard of care.
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Criminal Law Outline - Midterm

IV.

Mistake of Fact No Mens Rea, No Crime, unless.

A. Regina v. Prince p 234 1) Majority Moral Wrong Doctrine moral wrongness
a. D convicted for taking girl under age of 16 out of possession & against will of parents. D was told by girl that she was 18 D believed her in good faith, and court determined it was a reasonable belief. D appeals on no mens rea. b. Conviction upheld b/c no mens rea is necessary for an act that is morally wrong as such. A mistake of fact defense cannot be used for a morally wrong act. c. The act was determined morally wrong by analysis of the purpose of the statute violated: i. i.e., prevent young girls from being taken adv. of; ii. morally wrong to take a girl (whatever her age) if she is under the care of another (the act of sex or taking her away when she is under someones care is the only moral wrong). iii. There is a possible defense if he believed she wasnt under anyones care. 2) Dissent Lesser Crime Doctrine legal wrongness Common Law a. Cannot raise a mistake of fact defense. Can be convicted of the greater crime despite only

having a mens rea for the lesser crime. This only applies when they do have some mens rea.
b. D will be innocent, if he believes he is not committing a crime so long as it is not strict liability c. Only applies to different degrees of the same crime, not to altogether different crimes. (i.e., it must be petty larceny grand larceny; not petty larceny attempt to murder). d. The greater crime must be an obvious or predictable result of the lesser crime. (i.e., it is reasonably foreseeable that by committing petty larceny, you could unintentionally commit grand larceny. e. D may be convicted of the attendant circumstances only if subjectively aware of them. f. MPC approach - 2.04 p1083 opposite the common law when there is a mens rea i. Ignorance or mistake to a matter of FACT or LAW is a defense if:

1. The ignorance or mistake negates the mens rea element required for a material element of the offense; or
2. The law provides that the state of mind established by such ignorance or mistake is a defense. 3. Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if D would be guilty of another offense had the situation been as he thought. Here, however, the Ds ignorance or mistake will reduce the grade and degree of the offense of which he may be convicted to those of the offense that he thought he would be guilty of. 4. (measure of Ds liability should be his culpability, not the actual consequences of his conduct). g. Policy to consider with lesser crime what is Ds actual culpability with respect to how much he should be punished. Proportionality of punishment.

B. People v. Olsen page 239- lesser crime doctrine does not apply to sex with minors cases
1) D thought girl was over 16, girl was actually under 14. D convicted of lewd conduct on a girl of tender years. It would be a lesser crime if the girl was actually 16. 2) Court disallowed full mistake of fact lesser crime defense b/c a mistake of fact only to the gravity of an offense cannot shield deliberate offenders from the fully consequences of the wrong act actually committed. 3) Policy the court ruled mainly on policy interpreted from the intent of the legislature in enacting this statute. There would be no statute if they intended a mistake of age as a defense. (related to the moral wrong doctrine) 9

Criminal Law Outline - Midterm 4) Statutory Rape and Mistake MPC allows for honest mistake (D bears burden of

proving mistake); strict liability for those under 10 yrs. C. Strict Liability page 248 No Mens Rea required; rare, and usually only when statutes are violated 1) US v. Balint p248 Strict Liability in public welfare offenses narcotic sellers
a. D convicted for violating Narcotics Act of 1914 by selling opium and coca leaves w/o permit. D appealed on ground that the indictment did not charge that they knew they were selling prohibited narcotics. b. Court held that proof of knowledge was unnecessary in the statute. c. Public policy injustice of subjecting innocent seller to penalty < evil of exposing consumers to dangers of drugs. Must deter the latter by imposing liability on sellers in this case. 2) US v. Dotterweich p 249 strict liability in public welfare offenses mislabeled drugs a. D was GM of pharmaceuticals co, which distributed drugs manf. by others. Twice manf.s and thus, Ds labels were wrong and so D and co. were charged with the offense of selling misbranded products. Co. acquitted and D convicted. b. Congress wishes to impose the burden on those w/ at least some opportunity of

informing themselves as to illicit commerce that may harm the public, rather than placing the burden on the helpless consumer. c. Who can more easily bear the cost of preventing this mistake? 3) Morisette v. US p250 no explicit mens rea does not always imply strict liability
a. D took old US airforce bomb casing, flattened them out and sold them. D convicted of knowingly converting govt property. D appeals on grounds that he honestly believed the airforce abandoned them, and he was violating no ones rights by taking them. b. SCOTUS reversed. Congresss silent in the statute as to a mens rea element for this crime must be construed in light of an unbroken course of common law decisions imputing intent. Common law has always implied intent as necessary for larceny-type offense when no mens rea is explicit. c. US v. Staples p 254 D charged w/ possessing unregistered auto-weapon. Rifle used to have a metal piece to prevent auto-firing, but it had been filed down. D didnt know it was capable of auto-firing. i. He sought that the jury had to find knowledge for conviction. SCOTUS agreed. ii. Govt cannot automatically construe no explicit mens rea in a statute as dispensing w/ mens rea where doing so criminalizes vast amounts of apparently innocent conduct. iii. Punishing a violation as a felony is incompatible with the theory of the public welfare offense. 4) Malum in se v. malum prohibitum a. Malum in se inherently morally wrong b. Malum prohibitum prohibited wrongs / public welfare offenses. Liability may be permitted w/o regard to fault b/c these crimes are not from common law; single violations hurt many people simultaneously; standard imposed by law is reasonable; penalty for violation is minor; no stigma attached to violation. 5) Factors that support strict liability a. Crime not from common law; b. Legislative policy would be undermined by mens rea requirement c. Standard imposed is reasonable and adherence is expected d. Penalty is small; no stigma with conviction.

V.

Mistake of Law - Ignorance of the law is no excuse! page 267

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Criminal Law Outline - Midterm

A. Courts will rarely allow a mistake of law defense unless one of the elements of the offense is knowledge of or
specific intent under the law. 1) Policy Rationale a. Certainty of the law; b. Avoiding subjectivity in the law; c. Avoid fraudulent interpretation; d. Sacrificing the individual for the public good; e. Avoid encouraging ignorance of the law;

Mistake of law doctrine presumes everyone knows the law, once legislature gives fictitious notice of law; g. Uncertainty of the law can deter harmful behavior and promote caution; h. People are and should be aware of societys morality this morality is a better guide for action than is the law. B. MPC 2.04(3) page 1084 a mistake of law as to an offense is a defense to liability when:
f. 1) The statute or other enactment defining the offense is not known to the actor and has not be published or otherwise reasonably made available prior to the conduct alleged; or 2) He acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged with responsibility for the interpretation, administration, or enforcement of the law defining the offense.

C. Exceptions to The General Rule 1) Reasonable Reliance Doctrine Personal Interpretation of the Law
a. A person is NOT excused for committing a crime if she relies on her own erroneous reading of the law, even if a reasonable person even a reasonable law-trained person would have misunderstood the law. 2) People v. Marrero page 267 personal interpretation is a no go for mistake of law. a. D, fed corrections officer, convicted of unlicensed possession of gun. Statute exempted peace officers correction officers of any state correctional facility or any penal correctional facility. D argued that his misinterpretation that it also applied to fed. officers. b. Court held that Ds personal misunderstanding of the statute did not excuse the criminal offense. Court interpreted the NY penal law to comport with the MPC holding that the statute must have previously authorized the conduct, and then afterward that part of the statute is determined erroneous. c. Policy - To hold otherwise would encourage people to construe criminal statutes however they felt, and could thus lead to bad faith defenses. Encourage public to read and rely on official statements of the law, not to have individuals conveniently and personally question the validity and interpretation of the law and act on that basis. Ds argument would create legal chaos, by people having no respect for the law, floodgates would open to mistake of law defenses, and wrong-minded people would take adv. of this. Dissent has opposite policy considerations mentioned dont punish unless blameworthy. 3) Regina v. Smith (David) p 273 D damaged wall panels and floor boards to retrieve wiring he installed w/ landlords permission, behind walls and floors he constructed. He was charged with violating statute: person

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Criminal Law Outline - Midterm w/o lawful excuse damages property of another, intending to damage property or being reckless as to whether the property would be destroyed, is guilty. a. TC convicted under instruction of belief by D that he had the right to do what he did is not a lawful excuse because he had no right to the act. b. Court reverses stating that the mens rea relates only to the causing damage to property. It is not possible to exclude the words belonging to another, which describes the property. The intention and recklessness and absence of lawful excuse require to for the offense have reference to property belonging to another. c. No person can be convicted under the statute if he believes he does so in the honest though mistaken belief that the property is his own. 4) Lambert v. California page 282 Fair Notice as a defense to a statute violation a. D convicted under a statute requiring felons to register in the state of CA under certain conditions. D had no knowledge that he had to register under this statute. SCOTUS reversed the conviction for violation of notice under due process b. Violation of the statute was unaccompanied by any activity, and there was little or no probability that a person would inquire as to the necessity under this statute. c. D had no notice; D had no actual knowledge, nor Probability of knowledge; and the

crime was an act of omission (this factor might not be as necessary because this ruling is mostly about reasonableness and fairness. d. State v. Leavitt p285 D was misled by sentencing court to understand that his firearm possession
restriction was only one year (it was actually that they could no longer possess firearms). Due process, however, precluded the conviction, b/c D was prejudiced by the failure of the court to give D the statutory required notice regarding firearm possession.

D. The Cultural Defense 1) Issue should the law afford an excuse for foreigners who violate the law by actions acceptable in their
native culture. 2) The argument in favor of a defense in these cases is that it will advance two desirable ends consistent with the broader goals of liberal society and the criminal law: (1) the achievement of individualized justice for the D; and (2) a commitment to cultural pluralism. a. Policy - If they do not believe they are committing a crime there is no rehabilitation needed (no subjective blame). Consistent with utilitarianism 3) The argument against a defense is that in these cases the victims are denied the protection of crim law b/c the assailants generally go free, immediately or in a short period of time. Adopting this discriminatory standard defeats the deterrent effect of the law, and could be expanded (if it is precedent) to broader applications. This is contrary to the goal of expanding legal protection to the least powerful minorities. a. Policy not consistent with retributivism. The act is blameworthy. 4) Fumiko Kimura v. Shaquan Duley

VI.

RAPE p291
A. MPC Definitions of Rape Offense pgs 1117- 1119 B. Traditional Common Law Definition: Rape = Sex + force (or threat of force) + non-consent + against her will.
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Criminal Law Outline - Midterm 1) Resistance is evidence of force & non-consent force is shown by overcoming reasonable

affirmative resistance by the woman. 2) Force requirement avoids wrongful conviction by requiring objective evidence of Vs nonconsent and Ds intent. C. Actus Reus Force and Resistance 1) State v. Rusk- page 302 Reasonable Fear + no resistance = nonconsent
a. V met D in bar. V thought D knew her friend. V gave D a ride home. Upon arrival, D turned off ignition and took Vs keys. V felt compelled to enter Ds house. D undressed V and had sex with her. At one point V said, if I do what you want, will you let me go? D replied, yes. V started to cry, D lightly choked her. D claims V was willing, and she only became uptight after it was over. D convicted of rape. b. V was in fear and thus had no consent; Ds conduct (choking, stealing keys) was calculated to induce fear such that there was threat of force. D took her keys to isolate her in an unfamiliar area alone. c. Force (lack of consent?) is proven by physical resistance, or proof that V failed to

resist b/c of reasonably grounded fear that i. Is so extreme to preclude resistance, or ii. Is of death or serious bodily harm, or iii. Would render her mind incapable of continuing to resist, or iv. Overpowers her so that she doesnt dare resist
d. If Vs fear is not reasonable, for it to be rape there must be resistance overcome by force to show nonconsent. e. Potential Issues with the Reasonable Fear Doctrine i. If the Vs fear is unreasonable then the D is not guilty of rape even if he knew about and exploited that fear to pressure her into having sex. ii. If Vs fear is reasonable it would seem that the D is guilty of rape, even if he did not know about the fear or use it to pressure her. f. The test above is subjective and objective i. Subjective what the V thought & perceived v. what the D though & perceived ii. Objective what would a reasonable person in Vs situation perceive v. what would a reasonable person in Ds situation perceive. 2) People v. Warren page 310 what is sufficient for reasonable apprehension? a. D talks to V randomly on bike path D twice the size of V. D picks up V brings her into the woods and has sex with V. V did not resist, attempt to flee or scream. State argues no resistance b/c of overwhelming fear of being isolated in the middle of nowhere (unfamiliar area). D did not use threaten or use force. b. Court rules that Vs failure to resist in any way (vocally, physically) when it was w/in her power to do so conveys implied consent regardless of mental state, and thus amounts to consent to the act. Court does not claim that she did consent, only that she must communicate lack of consent in some objective manner.

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Criminal Law Outline - Midterm 3) Implicit Threats State v. Alston p 311 V moved out of Ds apt. D saw V at school, threated to fix her face unless she had sex w/ him. V told D she didnt want to have sex; D had sex w/ her. TC convicted D of rape. a. Court reversed; No Rape found non-consent unequivocal, evidence did not establish element of force, beyond that of penetration. b. Court defines force in a physical sense only narrow definition of force force must be present at the time of sex to constitute rape c. Policy Vs fear of D was based on prior physical & emotional beating, but that evidence was inadmissible. D argued there must be circumstances at the time of action to hold there is rape. Should penetration alone be enough to constitute rape? (cannot tell the difference between consensual sex and rape anymore) 4) Nonphysical Threats a.

State v. Thompson p 313 D, high school principal, threatened V into sexual intercourse, by

threatening to not allow her to graduate. The rape charges were dismissed on appeal. i. Statute: person who knowingly has sex w/o consent w/ another commits offense of sex w/o consent. w/o consent means: V is compelled to submit by force or threat of imminent death, bodily injury, or kidnapping. Force was defined as: physical compulsion, the use of immediate threat of bodily harm, injury. State argued position of authority intimidated V, and caused fear and apprehension via threats. ii. Court agreed V was intimidated but that defintion of force could not be extended to include intimidation, fear, or apprehension. iii. Coercive threat is not force b. Commonwealth v. Mlinarich page 313 V is 14 yrs old. D assumed custody of V via fostercare. D threatened to send V back to detention home unless she has sex. V submits. TC convicts Appeal reverses. i. Court holds that rape requires actual physical compulsion; or violence; or threat of physical compulsion; or violence sufficient to prevent resistance by a person of reasonable resolution. ii. Coercive threat does not equal force. iii. Policy Open the Floodgates defining forcible compulsion to permit conviction for rape when sex is induced by threat or by moral or intellectual means, or by needs of circumstance will have bad consequences. iv. i.e., if a man takes a destitute widow into home and provides support to her and her family, such a definition of force will convict him of rape if he threatens to withdraw support and compel her to leave unless she engages in sex. The D is simply offering an unattractive choice to the V, to avoid an unwanted alternative 5) Solution to the Problem of Nonphysical Threats p 315 a. MPC 213.1(2) permits a conviction for gross sexual imposition in cases where submission is compelled by threat of force or by any threat that would prevent resistance by a women of ordinary resolution. i. To establish gross sexual imposition MPC requires two inquires: 1. Ds proposal must prevent resistance by a women of ordinary resolution 2. If above is satisfied, D still has to make a threat for liability. b. Submission must be from a threat not a bargain: i.e., wealthy man threatens to withdraw financial support from unemployed gf not guilty of compulsion; just offering an unattractive choice, to avoid some unwanted alternative. 14

Criminal Law Outline - Midterm c. PA RAPE statute p316 defines forcible compulsion as use of physical; intellectual; moral; emotional; psych force either express or implied. Commonwealth v. Meadows upheld conviction when D knew V had a crush on him and obtained consent by taking adv. of the crush.

D. Eliminating the Force Requirement 1) If force is eliminated how do we tell the difference between consensual and nonconsensual sex objectively? 2) State in the Interest of MTS page 318 Right of Sexual Autonomy
a. D (17) and V(15) engaged in consensual all-but-sex stuff and then proceeded to have nonconsensual sex w/ no more force than penetration. V was not asleep at time of penetration, and that V did not consent. TC convicted D of second-degree sexual assault. b. Court affirmed TC decision by defining the element of physical force under the NJ statute

as being satisfied by any use of force in the absence of affirmative and freely given consent to the specific act of sexual penetration (penetration is enough force).
c. V doesnt have to resist under this law V need not say or do anything for nonconsenual sex to be unlawful. Penetration satisfies the force requirement resistance is no longer needed. d. Policy each person has the right to personal autonomy choose who to have sex with

and control circumstances of sexual contact. Burden should by on the D to gain consent.
i. Definition of Consent (silence is lack of consent; affirmative consent is needed) permission to specific act of sex can be indicated through words or through actions that would demonstrate to a reasonable person affirmative and freely given consent for sex. ii. Burden is on the D to acquire affirmative consent No burden on V to express nonsent e. Legislative developments related to this new law Wis. & FL. Statutes p. 322-323. 3) MC v. Bulgaria p 324 Coercive Circumstances Test Universal Trend to Sexual

Autonomy
a. V raped w/o consent by two Ds. Case was dismissed on current statute no crim act unless V was coerced by physical force or threats, which presupposes resistance. b. Court found there was rape in the absence of coercion or threats b/c V had sex against her will & w/o her consent. Serious violations of sexual autonomy must be penalized. c. Actus reus of rape is the penetration w/o voluntary consent. Mens Rea is the intention to penetrate and the knowledge that it occurs w/o consent. d. Burden should be on the D to find affirmative consent. e. Definition of force must be extended to encompass subtly coercive circumstances, but it also assumed that a conviction of rape requires proof of a reasonable Ds subjective awareness that the V felt coerced. f. Prosecutor v. Kunarac military rape case. Military officers threaten life of a women unless she has sex with all of them. It would be undue to hold there must be anything beyond non-consent to find Ds liable here. MC v. Bulgaria tries to extend this coercive circumstances test to cases beyond this narrow view, and find that it must apply in many situations, to more broad interpretations of coercion. g. Coercive Circumstances Test i. This is an objective test that determines that coercion precludes the force/resistance requirement, thus expanding the definition of force to include coercion. This also precludes the V from having to affirmatively assert her non-consent.

E. Absence of Consent page 331

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Criminal Law Outline - Midterm 1) Defective Consent a. Maturity there is always a specific age of consent. Statutory rape reflects goal of deterring teen preg, risk of implicit coercion. MPC imposes liability when D knows person has mental disease or defect and cannot appraise the nature of their own conduct. b. Incapacity all states impose liability for rape when D has sex with unconscious V. i. D liability of V severely incapacitated by drugs or alcohol given w/o Vs knowledge. ii. No liability if someone other than D drugged V. MPC imposes liability only when (i) D administered intoxicant (ii) w/o Vs knowledge, and (iii) w/ purpose to prevent resistance. iii. Alcohol is tough w/ liability. Some states now find that alcohol negates consent now: 1. People v. Giardino p336 focus on Vs power of judgment when drunk. Test: whether alcohol renderd V (i) unable to reasonably judge the nature of the conduct, or (ii) whether V would engage in conduct if she was sober. c. Pressure and Threats Boss threatens to veto Vs promotion if she doesnt have sex. d. Authority and Trust patients cannot give free consent to their psychologists. Sexual autonomy is two sided freedom from unwanted sex and freedom to have a relationship.

F. Deception page 337 1) Fraud in Factum = Rape deception causes misunderstanding as to the act of sex itself OBGYN gets permission to insert medical device, but actually inserts penis. Deception about sex itself. 2) Fraud in Inducement = Not Rape consent gotten by fraud and deception pretending you are a doctor in a bar. Consent freely given to the actual act. 3) People v. Evans p. 337 - Rape cannot be achieved by fraud or trickery; Fraud in Factum v. Fraud in the Inducement a. D convinced V he was a psychologist, got her to his apt. When she resisted sex, he told her how foolish and dangerous it was to talk to & go home with a stranger b/c he could kill or rape her. D then played on her emotions w/ a lost love story. V then had sex w/o much resistance or consent. b. Court asks whether Ds behavior constitutes force. Court said that Ds conduct was not forcible. Court looked at Ds state of mind as the controlling mind b/c he spoke the words. Cannot prove beyond reasonable doubt that D meant his words to be a threat, so D does not meet forcible compulsion requirement. Rape cannot be achieved by fraud or trickery. 4) Boro v. Superior Court - page 339 Fraud in Inducement v. Factum
a. D claimed to be MD, calls V and says she has a disease that can be cured by having sex with a donor. V has sex with D. b. Court found that consent induce by fraud is effective as long as it relates to the inducement, b/c she knowingly consents to sex if it is fraud in the inducement. c. Fraud in the Inducement i.e., posing as a MD at a bar, V knows what they are consenting to, regardless of Ds other fraudulent behavior.

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Criminal Law Outline - Midterm d. Fraud in the Factum i.e., deception causes imperfect info as to the fact itself no legalized consent b/c consent wasnt given for the act in question. (i.e., D poses as Vs husband V did not consent to adultery).

G. Mens Rea page 344 1) Commonwealth v. Fischer p. 344 mistake of fact isnt a defense
a. D & V have sex an initial time. Hours later they begin again, yet V asserts she did not consent, and D believed in good faith that she consented b/c they had sex only hours before. TC convicts D. D tries to raise a mistake of fact defense to rape charge b/c the States definition of forcible compulsion was so broad that it would be unjust to deny Ds a mistake-of-fact defense b. Court found that D cannot raise a mistake of fact defense. c. Court cites Commonwealth v. Williams if a mistake of fact defense is permissible for rape, the legislature should explicitly define that it is a defense. Court should not create the defense. Court holds that girl alleges physical force and nonconsent and thus does not fall under the new contention of force as unnecessary to a conviction. Thus this new contention of force isnt a factor. D guilty of rape. The Mistake defense is only when the Ds error to consent is honest and reasonable it is often a very difficult determination - MPC. d. Policy the need for a meaningful mens rea here is very great with a broad definition of forcible compulsion. (As the definition becomes broader the need for a more defined mens rea becomes greater). 2) Strict liability cases: - p 348 a. Commonwealth(MA) v. Simcock Court refused a reasonable mistake as to consent as a defense to be in harmony w/ statutory rape law. b. Commonwealth(MA) v. Lopez court defended the refusal to allow as mistake of fact defense on the issue of consent, reasoning that the prosecution is required to prove that D used force and he had subjective culpability. c. Commonwelath v. Sherry NO MEANS NO When a woman says no to someone, any implication other than a manifestation of non-consent that might arise in that persons psyche is legally irrelevant, and thus no defense. 3) Negligence? p 349 a. Hess v. State Alaska V need not resist at all, but the jurys focus is on Ds understanding of the totality of circumstances. No mens rea is stated for the understanding of the circumstances, therefore recklessness will suffice for conviction. b. Most of recent American cases permit a mistake defense, but only when the Ds error as to consent is honest and reasonable. 4) Mistake of Fact Defense in Rape? Policy Arguments a. For: i. Argument in Fischer that a more expansive definition of force creates the risk of a reasonable and good-faith mistake as to consent is significant enough that the law should allow such a defense. b. Against: i. The law should place the burden on the D to know whether or not his/her partner is actually consenting. Disallowing a mistake defense does that by making actual consent (or lack thereof) a key factor and refusing to admit as exculpatory the Ds claim that although the V did not actually consent, she honestly/reasonably thought the victim had consented.

H. Marital Exemption page 356 1) People v. Liberta p. 357

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Criminal Law Outline - Midterm a. D (husband) forced to move out b/c he beat his wife (V). D threatened to kill V & forced her to have sex. NY statute provided that rape only applied to non-married folk, but that couples living apart under court order were not married. TC convicted, D appealed. b. Court affirmed because all distinctions based on marital status are irrational and erroneous even to married couples living together. Rape violates personal autonomy c. Policy elimination of the marital exemption would not disrupt marriages or discourage reconciliation. If marriage has reached the rape level, there is nothing to reconcile. Marital rape usually has a lower punishment and culpability than other forms. w/ no marital exemption statutes such as affirmative consent raise troubling issues. d. Rationales to keep the exemption marriage license gives consent; protection of the marriage from govt intrusion and to encourage reconciliation; protection of the husband in divorce proceedings; the womans autonomy is less seriously violated than if it were a stranger having sex with her. VII.

Homicide - page 373 A. MPC Definitions of Homicide pgs 1112- 1114

B. Report of the Royal Commission on Capital Punishment page 373
1) Basic principles of murder in England: a. Homicide is the killing of a human being by another human being b. Murder is the unlawful killing with malice aforethought c. Manslaughter is unlawful killing w/o malice aforethought. 2) Malice Aforethought Page 374--275 term of art covering all most heinous types of homicide, as well as constructive murder. Malice aforethought murders: a. It is Murder if one kills another w/ intent to do so, w/o provocation or slight provocation, although there is no premeditation in the ordinary sense of the word b. It is Murder if one person is killed by an act intended to kill another (transferred intent) c. It is Murder if a person is killed by an act intended to kill, although not intended to kill any particular individual, i.e., throwing a bomb into a crowd of people. d. It is Murder if death results from an act intended to do no more than cause grievous bodily harm. e. It is Murder if one person kills another by an intentional act he knows is likely to kill or to cause grievous bodily harm, although he may not intend to kill or cause grievous bodily harm and may either be recklessly indifferent as to the results of his act or may even desire that no harm should be caused by it. 3) MURDER STATUTES (CA; PA; NY; SWEDEN) page 375-380

C. Premeditation- Deliberation Formula page 381 1) Policy: The main reason for separating murder into degrees of heinousness is to have a proportional
punishment system. a. Utilitarian View these murderers are the most likely to be repeat offenders b. Retributive these murderers are the most blameworthy 2) Premeditation and Deliberation homicides are intentional: a. Premediation time and planning b. Deliberation pondering consequences; weighing the pros and cons of conduct. 3) PA Statute first state to create degrees of murder:

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Criminal Law Outline - Midterm a. First degree all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or shall be committed in the perpetration or attempt to perpetrate other felonies. b. Second Degree all other kinds of murder. 4) (PA Standard) Commonwealth v. Carroll page 381 Premeditation = intent; no time too

short for premeditation

a. D shoots wife in back of her head following long arguments. D said he was in a trance-like state during murder. D convicted of 1st degree murder, D appeals for 2nd degree murder on the ground that he did not have premeditation or intent. b. Court affirmed holding all you need for deliberation and premeditation is formation of the

intent to kill; no time is too short if the killing is intentional, willful, deliberate, and premeditated.
c. Court also held that the psych-witness testimony carries very little weight in this type of case, especially when the opinion is based on Ds facts. d. Policy society would be unprotected from criminals if the law permitted a blind or irresistible impulse or inability to control ones self, to excuse or justify a murder or to reduce it from 1st to 2nd degree. e. Young v. State p. 385 premeditation & deliberation can be formed while D is pressing the trigger that fires the fatal shot. f. This conception or premeditation = intent to kill, essentially eliminated the distinction between first and second degree murder 5) (West VA Standard) State v. Guthrie p386 1 degree murder requires reflection time;
st

otherwise 2nd degree

a. D (mentally unstable) was being teased at restaurant by co-worked (V). D pulls out a knife and stabs V. TC find D guilty of 1st degree murder. D appeals on ground that the jury instructions eliminated any difference between 1st & 2nd degree murder. b. Court reversed conviction holding there must be evidence D considered and weighed decision to kill to fulfill premeditation and deliberation requirements of 2st degree murder. c. There must be some time lapse between formation of the intent to kill and the actual killing to indicate the killing was calculated. Accused must kill purposefully following contemplation d. Policy Bullock v. US one who meditated an intent to kill and deliberately executes it, is more dangerous & culpable, or less capable of reform, than one who kills on impulse. Those who meditate on decision to kill are susceptible to Deterrence. e. Deliberate killer = 1st degree; impulsive killer is not. f. ISSUE Proof of Premeditation Under Guthries Distinction page 388 i. W/o a confession, circumstantial evidence is used (no one factor is controlling):

1. D & Vs Prior Relationship: relationship of the D and V & its condition at time of
homicide.

2. Planning Activity: whether plan or preparation existed in terms of type of weapon use or the
place where killing occurred. 3. Motive: Presence of reason or motive to deliberately take life g. Policy Sometimes unplanned killings are more culpable than reflective killing. (use

justification for punishment for the policy arguments) i. State v. Forrest p390 D took a gun to hospital and killed terminally ill father.
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Criminal Law Outline - Midterm ii. Anderson p389 D impulsively killed V b/c she resisted Ds sex advances over 60 stabs 6) MPC Totality of the Circumstances Test rejects premeditation and deliberation as the

basis for identifying murders that deserve the greatest punishment. The culpability should
actually depend on all the circumstances of the killing. Mercy killings are less culpable (although they are premeditated) than are certain grievous impassioned crimes.

D. Provocation p 390 can mitigate (grade down) a homicide, but does not relieve D of culpability 1) Traditional categories that allow for mitigation (not universal)
a. Extreme assault or battery on D; Mutual combat; Ds illegal arrest; Injury or serious abuse of a close relative of Ds; or sudden discovery of spouses adultery. 2) Girouard v. State p390 Words are never enough for Provocation a. D stabbed wife 19 times after V insulted his sex skills, asked for a divorce, and said she reported him to JAG for abuse. D convicted of 2nd degree murder. D appeals on provocation to get down to manslaughter. b. Court affirmed, holding that words alone in this case are not provocation adequate to justify a conviction of manslaughter rather than 2nd degree murder. c. For provocation to be adequate, it must be calculated to inflame the passion of a Reasonable Man and tend to cause him to act for the moment in passion rather than reason. (Killing never reasonable; circumstance under which D lost control might be reasonable). 3) Maher v. People Page 392 Traditional Defense Reasonable person & concept of cooling off a. Ds wife had affair in woods w/ V. D followed them to the woods. D followed V to a saloon right after. X informed D that his wife had sex w/ V the day before. D went into saloon and shot V. TC convicted of assault w/ intent to kill. b. Court held that there was sufficient provocation. c. The Traditional Defense: i. There was an intentional killing (would otherwise be murder); ii. It was committed under the influence of passion; iii. It was produced by adequate/reasonable provocation; iv. W/o adequate cooling off time; and v. Was a result of a temporary overthrow of Ds reason rather than wickedness/cruelty of disposition. d. A reasonable person standard should be used to determine when provocation is sufficient or reasonable. This question of reasonableness should go to the jury. The question of cooling time also depends on the average person standard. 4) Rationale for Provocation Defense 395 a. It is a concession to the frailty of human nature b. For provocation to be adequate, it must naturally cause a reasonable person in the passion of the moment to lose self-control and at on impulse & w/o reflection c. Individuals are to some extent morally justified in making a punitive return against someone who intentionally causes him serious offense. i. Provocation involves moral wrongs by both parties. Blameworthiness of Vs conduct should bear on the seriousness of provocation and Ds failure to control himself ii. Less societal harm in Vs death b/c he is immoral 5) Should provocation defense be abolished? 20

Criminal Law Outline - Midterm a. cheapens life by maintaining the defense; b. if it is abolished there is the possibility of too many acquittals from sympathetic juries 6) Sexual Infidelity as Provocation State v. Turner page 398 wife shot and killed unfaithful BF. Court held that voluntary manslaughter instructions were not required b/c D and V were not legally married, though they had lived together for many years. 7) Cooling Time a. US v. Bordeaux too long a time lapse between provocation and the killing renders provocation inadequate as matter of law, depriving D of voluntary manslaughter b. State v. Gounagias some states allow rekindling as a provocation defense c. Commonwealth v. LeClair - D suspected wife of adultery for weeks. D found out eventually and strangled his wife. Court held the suspicion for weeks prior was cooling time and no manslaughter instructions. D contributed to his own rage, by putting himself in a position to expose himself to the EED of the moment. Should this have an effect on whether he can raise the defense. i. 0 to ballistic v. incremental rage 8) Victims other than the Provoker a. State v. Mauricio p 400 - bouncer threw D from bar. D waited outside bar to jump bouncer. D killed someone he mistook as the bouncer as he came out the door. D was granted a voluntary manslaughter instruction. b. TX penal code requires provocation by the V. c. Rex v. Scriva & People V. Spurlin p401 No provocation defense available wrt killing a nonprovoking bystander 9) Ds who elicit Provocation Regina v. Johnson p 401 D who elicited provocation was entitled to a defense himself when the V who D provoked reacts in a way that makes D lose control. 10) PEOPLE v. CASASSA p 401 a. V ended relationship with D. D began stalking her obsessively. D eavesdropped on her new relationships. D broke into her apt to rekindle things, laying in wait. V declined, and D stabbed her and drowned her. D appeals on the ground of an Extreme Emotional Disturbance (EED) defense to get to manslaughter. b. The Court affirmed establishing the EED defense test, and D did not satisfy the 2nd component reasonable person standard. Action influenced by EED is not necessarily spontaneous. Mental trauma could affect Ds mind and create incremental rage until coming to the fore. c. Two components to EED defense: i. Particular D must have acted under the subjective influence of EED (subjective); and ii. There must have been a reasonable explanation or excuse for such EED, the

reasonableness should be determined from the POV of a person in Ds situation under the circumstances as D believed them (Objective).
iii. The actors situation considers personal handicaps & external circumstances (blindness); different moral values do not count; everything in between is at the discretion of the court. 11) MPC 210.3 EED page 1112 Criminal homicide constitutes manslaughter when: a. (b) A homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actors situation under the circumstances as he believes them to be. b. Analysis of MPC EED defense doctrine: 21

Criminal Law Outline - Midterm i. ii. iii. iv. v. vi. vii. No action from the V is needed; No element of surprise (cooling off time); This is more subjective (from Ds situation) Same two prong test used in Casassa. Even if the answer is yes to these two questions, it is up to the court to mitigate State v. Elliot p 405 trauma kid kills his brother, gets EED defense People v. Walker p 405 Drug dealer fight, no EED defense

12) Cultural Distinctions a. Dissent from Mascianttonio v. Australia p407 w/o incorporating characteristics of ordinary people of the same age, race, culture, and background as the accused on the self-control issue, the law of provocation would be unjust and discriminatory 13) Battered Woman State v. McClain p407 D shot and killed man who she lived w/ for years. V beat her in the past. Psych-wtiness said this created battered woman syndrome leading to the murder. State deemed this inadmissible on the provocation defense b/c that inquiry requires the reasonable ordinary battered spouse test 14) Mental Disorder p408 pysch evidence inadmissible as to depression and Vietnam war syndrome to support EED.

E. Depraved Heart Murder 1) Commonwealth v. Malone p426 D(17) killed Long(13) by a shot from a revolver in a
game of Russian Poker. D pulled the trigger three times while aiming at Longs side. D says he had no intention to harm Long. D also claims the bullet was placed in chamber to the right of the firing pin the gun should have fired on the 5th pull of the trigger (Ct doesnt believe this). TC convicts of reckless murder.

1. Holding: Yes, Depraved Heart Murder for malice in the sense of a wicked disposition that reckless conduct will result in death. 2. When D commits an act of gross recklessness for which he must reasonably anticipate that
death of another is likely to result, D exhibits that wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, which proved that there was at that time in him the requisite malice for murder.

3. D intentionally killed Long, in reckless and wanton disregard of the consequences which
were at least 60% certain from the 3 attempted shots of a gun known to be loaded and aims at vital organs.

4. Lack of motive does not exculpate the accused; motive is relevant but not necessary.
2) MPC 210.2 p429 an unintended killing is murder when it is committed recklessly as defined in 2.02(2)(c), and under circumstances manifesting extreme indifference to the value of human life.

1. The first judgment must be made in terms of whether the actors conscious disregard of the
risk, given the circumstances of the case, so far departs from acceptable behavior that it constitutes a gross deviation from the standard of conduct that a law-abiding person would observe in the actors situation. 22

Criminal Law Outline - Midterm 2. Ordinary recklessness in this sense is only sufficient for manslaughter conviction. 3. The common law and statutes based on it turn on the distinction between manslaughter and unintentional murder on how wicked and depraved the killing seemed to be. Thus, this results in highly subjective calls by the judge or jury. 3) People v. Roe p430 D convicted of murder of his friend in game of Russian Roulette. 1. Holding: affirmed; once it is proven the actor was aware of the risk, evidence of actors subjective mental state is not pertinent to determining the additional element required for depraved heard murder: 2. Whether the objective circumstances bearing on the nature of a Ds reckless conduct are such that the conduct creates a very substantial risk of death. 3. Only the known degree of risk to life that the Ds action created, distinguishes manslaughter from murder. 4) People v. Burden Depraved heart murder by omission p430 Ds conscious and callous failure to feed his child resulting in death through malnutrition. D knew kid hadnt been feed, yet did not feed him. Omission of a duty is equivalent to an act when death results. Standard of evaluation is the same. 5) US v. Fleming p431 D driving very drunk, between 70-100mph in 45mph zone. D crossed over into oncoming traffic lanes. D collided w/ Hs car while travelling in the direction of oncoming traffic; thus killing H. TC convicts D of second-degree murder. 1. Holding Yes, Depraved Heart Murder; malice aforethought present. 2. Proof of malice by evidence of conduct which is so reckless and wanton that it is a gross deviation from the reasonable standard of care, so that the D was aware of the serious risk of death or serious bodily harm. 3. For murder, D need only have intended to operate his car the way he did w/ a depraved heart for the lives and safety of others. 4. This is different from the normal drunk driving case in that D drove in a manner to indicate gross disregard for human life, particularly in light of the fact that b/c he was drunk his reckless behavior was all the more dangerous. 6) People v. Watson p433 drunk driver convicted of murder evidence by actual awareness of the danger merely b/c the D had driven his car to the establishment where he had been drinking, and he must have known that he would have to drive it later, and D was aware w/ the risks of driving drunk. 1. Ct here seems to use the Decina test by shifting the focus by to the conscious choice to drink, or the choice to drive despite being drunk. 2. Here Ct focus is on the choice to drive to the bar. 3. It may make more sense to focus on the choice to drive home later in the evening despite having other options, e.g., cab or bus. 4. Intoxication is almost never a defense. 7) Who is more culpable: the sober reckless driver or the drunk reckless driver? 1. Drunk driver voluntarily handicapped driving ability by being drunk 2. Sober driver chose to drive crazily, while the drunk driver only had bad judgment w/ drinking, may not have intended to drive stupidly. 23

Criminal Law Outline - Midterm 3. A and B both drive drunk and both run a red light; A hits and kills someone, while B makes it through safely. How is it fair to hold A more culpable when they both performed the same act, yet A by fortuity killed someone. 8) MPC 210.2(1)(b) murder requires proof that D acted recklessly under circumstances manifesting extreme indifference to the value of human life. 1. MPC 2.08(2)provides that recklessness need not be shown if the reason D was unaware of the risk was his voluntary intoxication. Intent to inflict Great Bodily Harm is typically held to establish depraved heart level of recklessness

F. Reckless Homicide 1) Commonwealth v. Welansky p411 D, owner of bar, has duty to safety of customers.
Bar was overcrowded; didnt have sufficient fire exits. Fire broke out one night, resulting in deaths of patrons. TC convicted of numerous counts of involuntary manslaughter based on willful, wanton, or reckless conduct.

1. Holding Affirmed, Yes Involuntary Manslaughter, based on recklessness 2. Enough to prove death resulted from Ds wanton or reckess disregard of the safety of
patrons in the event of fire from any cause. a. Mens rea for involuntary manslaughter wanton or reckless conduct; act or omission must have been the probable substantial consequence

3. 4.

There was an ever-present threat of fire, which is a serious risk. A high degree of likelihood substantial harm will result to another. (the specific type of risk that occurred was not likely, but if that risk came to fruition, the harm would be devastating). a. Substantial chance if a fire broke out that a serious harm would occur someone would die as a result of Ds conduct. b. Sliding scale of likelihood between gravity of harm if something happens & likelihood of something actually happening to trigger harm. Criminal recklessness is result of a high degree of risk created from conscious disregard of a duty of care to those you take into your care. Unclear whether this should have been negligent homicide instead

5. 6.

2) MPC 210.3 Manslaughter p415 if the actor was reckless (consciously disregarded a substantial and unjustifiable risk that his conduct would cause the death of another) and if the risk was of such nature and degree that its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actors situation. 3) People v. Hall p415 D, expert skier, skiing very fast and slightly out of control, results in collision w/ V. V died as a result of the collision. D charged w/ felony reckless (MPC definition) manslaughter.

1. Holding: Yes, Reversed, Could find Reckless Manslaughter conscious

disregard of substantial and unjustifiable risk that death could result from his actions. Upon New trial Jury found Negligent Homicide
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Criminal Law Outline - Midterm

2. 3. 4. 5.

A risk can be substantial w/o being probable. Expert said Ds conduct was exactly type of skiing that risked a rare death by collision. A reasonably prudent person could conclude that D was unable to anticipate or avoid a potential collision w/ a skier below him on the trail. a. Enjoyment of skiing does not justify such crazy skiing. Violated skiers duty in an extreme manner avoid hitting things below you evidence of gross deviation from standard of care. Awareness: lower punishment where the actor was unaware of a substantial unjustifiable risk is less culpability than person who does have awareness.

G. Negligent Homicide 1) MPC210.4 Negligent Homicide p415 when a person should have been aware of
such a risk and his failure to perceive it considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actors situation. 2) 3)

See e.g. Commonwealth v. Welansky p411 See e.g., People v. Hall p415 State v. Williams p418 Ds, husband & wife, did not bring kid w/ tooth ache to hospital,

4) even though baby was sick for two weeks. Claimed they didnt bring kid to hospital out of fear that social services would take baby away. Baby died. TC convict of statutory negligent homicide.

1. Holding: Yes, Negligent Homicide

2. Statute says crime is committed even though death of V is prox result of only civil neg. 3. Both Ds had a legal duty to get their child med. assistance. 4. No evidence showing Ds were physical/financially unable to obtain a MD, or that they didnt have an available MD, or that the symptoms did not continue to be a matter of concern during the critical period (period where treatment still would have helped). 5. Ds were on sufficient notice concerning symptoms of the babys illness and lack of improvement in condition while treatment would sill be effective. 5) Walker v. Superior Ct p425 Ds 4yr old had flu-like symptoms. Four days later she got a stiff neck. D elected to treat daughter w/ prayer rather than medicine. Over 17 days childs condition worsened and eventually died of meningitis. TC found negligent homicide.

1. Holding Yes, Criminal Negligent Homicide

2. Crim negligence must be evaluated objectively and the controlling question was whether a reasonable person in Ds situation would have been aware of the risk involved. a. Would a reasonable parent have recognized that their kid had meningitis. 3. Policy: encourage other parents to take their kids to the MD if they are sick, and to take more caution wrt ot their kids, and thus deter future negligence related to this type of conduct. Support for keeping neg. basis for crim liability: 1. Deterrence for creating improper risk. 2. Key to culpability it why person failed to perceive. 25

6)

Criminal Law Outline - Midterm a. E.g., two cases where driver runs red light and kills pedestrian in cross-walk (saw neither the light, nor the pedestrian): i. Father rushing severely injured kid to the hospital 1. Tragic conflict between welfare of kid and societys welfare ii. Teenager showing off to friends 1. Indifference toward others, and morally culpable, thus society responds. Criticism of the objective standard: 1. Hard to see how justice requires punishing mistakes through the lens of retributive theory 2. Utilitarian at best deterrence of legal sanction is a matter of faith rather than proved scientific fact. Threat of punishment in neg. passes people by b/c dont know deterrence is aimed at them. MPC rejects a fully individualized standard of neg.; only use the in the actors situation 1. Situation means blindness and heart attacks but not heredity, intelligence, or temperament of actor.

7)

8)

H. Tragic Accident NO liability in Homicide last defense to any charge of homicide

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