ࡱ> q Gbjbjt+t+  AA]BBBBBBB Z& 6L( . D D D D .r!,"----<X-T1T6$E89:F$6B6#D D 6#6#$6R#BBD D R#R#R#6#BD BD - JP JBBBB6#-R#FR##+lBB-D b. R#-Criminal Law Outline: Finkelstein Spring 1998 TABLE OF CONTENTS: TOC \f I. Nature of ACriminal Law@ 6 A. Crimes 6 B. Principles of Criminal Responsibility 6 C. Limitations on the criminal law 6 II. Proving Guilt 6 A. The due process clause 6 B. Jury Nullification 6 III. Principles of Criminal Punishment 6 A. Forms of Moral Reasoning 6 B. Principles of Utilitarianism 7 IV. Forms of Utilitarianism 7 A. General Deterrence 7 B. Specific Deterrence 7 C. Rehabilitation 7 V. Criticisms of Util. 7 VI. Principles of Retributive Theory 7 VII. Forms of Retributivism 8 VIII. Criticisms of Retributivism 8 IX. Mixing the Theories: Hybrid Approach 8 X. MPC: Purposes and Principles of Crime and Punishment: 9 XI. Legality and Proportionality 9 DEFINING CRIMINAL CONDUCT: I. Actus Reus Generally 12 A. Rules: Voluntary Act Required (volitional) 12 B. Case Examples 12 C. Arguments about Voluntariness 13 D. Voluntary act requirement may be meaningless 14 E. Justification for requirement of a voluntary act 14 II. Possession 14 III. Omissions 15 A. Rules: (CL & MPC 2.01 same) 15 B. Sources of Duty 15 C. Euthanasia 16 D. Arguments whether Euthanasia = omission or Killing 17 DEFINING LEVELS OF CULPABILITY I. MENS REA GENERALLY: 18 II. PURPOSELY/Intentionally: MPC 2.02(2)(a) 18 III. KNOWINGLY 18 B. Transferred Intent: 18 C. Willful blindness 18 IV. RECKLESSNESS: 19 B. Malice: 19 V. NEGLIGENCE 19 VI. Applying the Mens Rea: 20 VII. Reading the statute to determine the MR f/each element: 20 VIII. Specific v. General Intent 21 IX. Strict Liability 21 X. Constructive Malice 23 XI. DEFENSES: 25 XII. Justification: 25 3. Self Defense: 25 d. Battered Women 27 e. Retreat ' 3.04: 27 4. Necessity/ALesser Evils@: 27 XIII. EXCUSE: Mistake of Fact: General Rules 29 XIV. Imposition of Mistake of Fact reasonableness requirement 29 XV. AMalum en se@ issue 30 XVI. Mistake of Law 31 XVII. Excuse: Insanity: negatives Mens Rea 34 XVIII. Excuse: Diminshed Capacity/Provocation (See Homicide Section for More Complete') 34 A. Provocation - Murder v. Intentional Manslaughter 34 XX. DURESS: Rational Excuses b/c Absence of Reas. Alternatives 35 CAUSATION OF THE RESULT: XXI. Actus Reus = CAUSATION: Homicide offenses 36 A. Actual Cause 36 XXII. Prox. Cause: Standard of causation 36 XXIII. Vulnerability of Victim 37 XXIV. Intervening Negligence of Doctor 37 XXV. Subsequent Intentional Human Actions: Intervening Causes 37 XXVI. Subsequent Reckless Human Actions 38 XXVII. Human Actions - should they matter 39 THE CRIMES BEGIN: I. Homicide at Common Law/PA/CA: 40 II. Definitions under MPC: Section 210 40 A. Criminal Homicide 41 B. Murder 41 C. Manslaughter (210.3 41 D. Negligent Homicide 41 III. Mens Rea: 41 A. Malice Aforethought 41 B. Premeditation: First v Second Degree Murder 41 C. Provocation - Murder v. Intentional Manslaughter 44 IV. Negligent Killings: Criminalized activity or not? 48 A. CL: Negligent killings are considered manslaughter 48 B. MPC: Negligent Homicide 48 V. Reckless Killings : Murder vs Manslaughter 49 VI. Felony Murder CL 52 VII. Felony Murder: MPC 52 VIII. Proving FM under CL: 52 IX. Predicate Felony must be Aindependent@ of the homicideC Expansive Merger 53 X. In furtherance of Felony 55 A. Agency theory 55 B. Proximate Cause approach 55 C. Vicarious Liability approach 55 E. D=s criminal conduct was the actual & proximate cause of V=s death 56 XI. The Death Penalty : evaluating DP statutes - three requirements 58 A. Discretion 58 B. How to Apply the DP 61 I. RAPE: Types of Statutes: 62 II. RAPE: General Definitions: 62 III. Mens Rea for RAPE 62 IV. Actus Reus: RAPE 64 B. Nonconsent & resistance 64 C. Requirement of Actual Force/threat of force 65 D. Nonphysical threats 65 V. Statutory Rape 68 I. ATTEMPT: General Principles: 70 II. Attempt: Mens Rea 70 III. Attempt and Preparation for the Crime: Actus Reus 72 IV. Abandonment 73 V. Solicitation 74 I. Impossibility: Maj View : MPC: 5.01 77 II. Impossibility: Min view: CL: 77 III. Which approach is better? 78 I. GENERAL ACCOMPLICE LIABILITY 81 II. Accomplice: Mens Rea 81 III. Mens Rea as to attendant circumstances 83 IV. Mens Rea to Result 84 V. Actus Reus: ATTEMPT 85 VI. Relationship b/w the D and the P 86 VII. Exceptions to derivative liability 87 1. Innocent agent doctrine: 87 B. Abandonment: 87 C. Principal has been acquitted 87 D. The Accomplice has greater MR than the Principal 87 VIII. Accomplice Liability : matching the principle=s liability 88 I. CONSPIRACY: 88 A. Merger Doctrine: 88 II. Incentives to use conspiracy charges 90 III. Is conspiracy still in effect? 90 IV. Actus Reus 90 V. Mens Rea 91  AND SO IT BEGINS.... SEQ Outline_0 \* ROMAN \r 1I. Nature of ACriminal Law@tc \l1 "I. Nature of ACriminal Law@ SEQ Outline_1 \* ALPHABETIC \r 1A. Crimestc \l2 " A. Crimes Formulated in general terms, outlining standards of conduct (affirmative v. inactive standards), carrying the weight of the community, and subject to sanctions if you disobey them. Comparison to Civil Wrongs- involves Apublic@ law in the sense that a Asocial harm@ is committed. In terms of punishment, conviction of a crime expresses society=s moral outrage, condemnation directed at the criminal actor (Shown by the stigma attached to a criminal conviction). Also, redress goes to society instead of individual actors. Classifications- felony or misdemeanor. In common law, all felonies were punishable by death. More recently, the line has blurred. SEQ Outline_1 \* ALPHABETIC \nB. Principles of Criminal Responsibilitytc \l2 " B. Principles of Criminal Responsibility- are examined when we look at the doctrines, theories that determine when a person may be justly held criminally responsible for harm she has caused. SEQ Outline_1 \* ALPHABETIC \nC. Limitations on the criminal lawtc \l2 " C. Limitations on the criminal law- Legislatures are subject to federal and state constitutional provisions. For example, cruel and unusual punishment, due process guarantee. The following are policy factors in enforcing the Constitution: Separation of Powers- courts play a part in determining if the legislature has crossed the line. Many judges defer to the opinions of the public as stated in the statutes, however. Federalism- individual states can decide for themselves what a crime is. Protecting Individual Rights- jud. protects against these abuses of legis. SEQ Outline_0 \* ROMAN \nII. Proving Guilttc \l1 "II. Proving Guilt- underlying presumption of innocence. SEQ Outline_1 \* ALPHABETIC \r 1A. The due process clausetc \l2 " A. The due process clause requires proof Abeyond a reasonable doubt of every fact necessary to constitute the crime...charged.@ Conviction is recognized as a crushing blow. Community must have confidence that the law will not convict innocent men for it to have any moral force. Social disutility of convicting innocent worse than letting guilty go free. SEQ Outline_1 \* ALPHABETIC \nB. Jury Nullificationtc \l2 " B. Jury Nullification- juries can acquit w/out stating their reason, law protects against double jeopardy. This can act as a safeguard against morally unjust or socially undesirable convictions. Some argue that it is the legislature=s job to determine what a crime is, so a jury should not exercise this power. SEQ Outline_0 \* ROMAN \nIII. Principles of Criminal Punishmenttc \l1 "III. Principles of Criminal Punishment- Why do we enact laws that define specific conduct as criminal? To whom may punishment be applied and in what amount? SEQ Outline_1 \* ALPHABETIC \r 1A. Forms of Moral Reasoningtc \l2 " A. Forms of Moral Reasoning Teleological v. Deontological- the former focuses on actions as mean to good ends. Actions are morally right only if they result in desirable consequences (Utilitiarianism). The latter focuses on actions as ends in themselves (Retributivism). SEQ Outline_1 \* ALPHABETIC \nB. Principles of Utilitarianismtc \l2 " B. Principles of Utilitarianism Augmenting Happiness- the general object of the law is to augment the total happiness of the community by excluding, as much as possible, everything that causes mischief (Apain@). Crime and Punishment - both are evil because they cause pain to society. For punishment to be permissible, the pain avoided by punishing needs to outweigh the pain inflicted on those punished. Underlying Premises- Pleasure Seeking- people are hedonistic, seek pleasure, avoid pain. Rationality- people will weigh the costs and benefits of her actions. SEQ Outline_0 \* ROMAN \nIV. Forms of Utilitarianismtc \l1 "IV. Forms of Utilitarianism SEQ Outline_1 \* ALPHABETIC \r 1A. General Deterrencetc \l2 " A. General Deterrence- the idea that Acrime does not pay.@ SEQ Outline_1 \* ALPHABETIC \nB. Specific Deterrencetc \l2 " B. Specific Deterrence- individual deterrence. 1) Incapacitation 2) Intimidation SEQ Outline_1 \* ALPHABETIC \nC. Rehabilitationtc \l2 " C. Rehabilitation- advocates of this form believe that the best way to prevent future crime is by reforming the criminal so that he does not wish to commit crimes. (However, today incarceration is rarely imposed for reform). PROBLEM: In general, an increase in the detection, arrest and conviction rate is of greater deterrent value than an increase in the severity of the penalty upon conviction. SEQ Outline_0 \* ROMAN \nV. Criticisms of Util.tc \l1 "V. Criticisms of Util. Deterrence- this justification can be used to punish a person who is known to be innocent. EXAMPLE- White woman raped by unknown black man. A mob forms and the sheriff gives up a homeless, black man to them knowing the bum is not guilty. Utils may justify this. Some utils would argue, however, that the sheriff should not arrest the man (because it would lead to distrust of the legal system if it was ever found out and it would not deter the real killer), or at least can do it in such a way that he is not harmed (hold the bum until the crowd disperses). Rehabilitation- is it even possible? SEQ Outline_0 \* ROMAN \nVI. Principles of Retributive Theorytc \l1 "VI. Principles of Retributive Theory Just Deserts- idea that punishment is justified because it is a deserved response to the wrongdoing, whether or not it will result in a reduction in crime. Comparison to Util.- retr. looks backward at the crime to justify the punishment. No matter how much a person may Adeserve@ punishment, a util. won=t punish her unless doing so will prevent future crime. Underlying Premise- premised on the view that human beings have free will. If a person freely chooses to commit a wrongful act, she deserves punishment. Comparison to Util.- Util. presumes people are rational calculators and hedonistic, so by punishing them you are condemning their calculation more than the act itself. SEQ Outline_0 \* ROMAN \nVII. Forms of Retributivismtc \l1 "VII. Forms of Retributivism- negative v. positive approaches- negative is somewhat compliant with util in that it stated that no innocents should be punished. Alternatively, positive states that all guilty must go punished. The following are all forms of positive Retributivism. Assaultive Retribution- it is morally right to hate criminals. Protective Retribution-punishment as a means of securing moral balance in society. Non-compliance with rules of the community means that you have renounced a burden which others have assumed. The criminal owes a debt to society. The criminal has a right to be punished. Victim Vindication- the criminal essentially tells the victim that his (the criminal=s) rights and desires are more valuable than those of the victim. Punishment reaffirms the victim=s worth. SEQ Outline_0 \* ROMAN \nVIII. Criticisms of Retributivismtc \l1 "VIII. Criticisms of Retributivism Punishment is senseless, even cruel, if it does no good. Retr would argue that there are moral imperatives, acts that are right or wrong, regardless of their consequences. Glorifies anger and legitimizes hatred. Also, it is irrational because it is founded on emotions. Rets argue that anger can be morally good when it demonstrates that we value ourselves and the crime victims. SEQ Outline_0 \* ROMAN \nIX. Mixing the Theories: Hybrid Approachtc \l1 "IX. Mixing the Theories: Hybrid Approach Common Hybrid Approach General Justifying Aim- many characterize the reasons for prohibiting conduct as utilitarian in nature. Distributive Justice- Many people believe that retributive theory should set limits on utilitarian punishment. Specifically, under this mixed theory, Retributivism determines who should be punished and how much punishment they should get while utilitarianism says why Who should be punished? Most would agree that it is wrong to punish a knowingly innocent person. EXAMPLE- White woman raped by unknown black man. A mob forms and the sheriff gives up a homeless, black man to them knowing the bum is not guilty. Utils may justify this. Some utils would argue, however, that the sheriff should not arrest the man (because it would lead to distrust of the legal system if it was ever found out and it would not deter the real killer), or at least can do it in such a way that he is not harmed (hold the bum until the crowd disperses). Retributive would not punish, as he has done nothing wrong. . How much punishment? Many believe that ret values should prevail. EXAMPLE- attempted murder is a lesser crime than murder. To a util this makes little sense as the attempter is just as dangerous as the actual murderer. The lesser punishment is probably due to retributive theory. Looking back on the act, the attempter did less harm than a murderer SEQ Outline_0 \* ROMAN \nX. MPC: Purposes and Principles of Crime and Punishment:tc \l1 "X. MPC: Purposes and Principles of Crime and Punishment: '1.02: (1)General purpose of defining criminal conduct (a) is to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests; (b)to subject to public control persons whose conduct indicates that they are disposed to commit crimes;(c)to safeguard conduct that is without fault from condemnation as criminal; (d) to give fair warning of the offense; (e) to differentiate on reas. Grounds between serious and minor offenses. (2)General purpose of sections re: sentencing and treatment of offenders (a)to prevent the commission of offenses; (b)to promote the correction and rehab of offenders; (c)to safeguard offenders from excessive. Disproportionate, or arbitrary punishment; (d)to give fair warning; (e)to differentiate among offenders for just individualization of treatment; (f)to define coordinate and harmonize among agencies dealing with the law; (g)use scientific method with respect to sentencing and treatment of offenders. SEQ Outline_0 \* ROMAN \nXI. Legality and Proportionalitytc \l1 "XI. Legality and Proportionality Proportionality- a general principle of CL is that punishment should be proportional to the offense committed. MPC 1.02(2)(c). The difficulty lies in determining the meaning of the term Aproportional.@ Util. Meaning- a punishment must be proportional to the util goals it satisfies. Bentham=s 5 rules: (1) P must not be less than that required to outweigh potential profit (2) greater the mischief, greater the punishment (3) grade offenses so that criminal will choose the least mischievous of 2 offenses (4) create incentive for criminal to do no more than necessary for his purpose (5) a punishment is proportional if it inflicts no more pain than necessary to fulfill its deterrent goal. Application in Deterrence General Deterrence- appropriate punishment may differ over time and depending on jurisdiction. For example, in a rural community it may make more sense to punish cattle rustling more severely than in an urban community. Also, you can consider the extent to which the conduct is deterrable. EXAMPLE- What if a crime is immune to deterrence, i.e. DUI? Under util approach you may be able to justify harsher penalties, or maybe go after related actors (the bartenders, friends, etc). Specific Deterrence- punishment is proportional to the extent that it is necessary to prevent the individual offender from committing future criminal acts. Rehabilitation- proportion. has no meaning in this type of system. Retributive Meaning- punish. should be proportional to the harm caused on the present occasion, taking into account the actor=s degree of culpability for the conduct. This justifies punishing an intentional murderer more than a negligent killer. Most retributivists reject concept of lex talionis- the eye for an eye idea. Differences in Outcome- you can reach different results depending on which you use. Remember, Utils look forward, Rets look backward. Also, utils see punishment as a necessary evil, while rets see it as morally right. Recidivist Laws- repeat offenders often punished more severely. Util Analysis- deterrence and incapacit. ideas justify this. Retr. Analysis- a person should be punished for the crime just committed. Presumably, the criminal paid their debt for their earlier crimes. EXAMPLE- Take the case of DUI. Utils would look at how much harm (accidents, injuries, potential and future harm) occurs as a result of the activity and how much punishment will effectively deter the harm. Retribut. would look at each arrest & harm caused by such. Constitutional Law- 8th Amend prohibits grossly disproportional punishment under the Cruel and Unusual Punishment clause. Death Penalty- in Coker, death was held disproportional to rape. Consistent with a retributive theory. Utils could have justified the penalty, as the criminal had killed before. Legality: 3 General principles: no person may be prosecuted or punished for an act that was not a crime when it occurred no person may be punished for an offense unless the statute is sufficiently clear that a person of ordinary intelligence can understand its meaning a criminal statute should not be so broadly worded that it is susceptible to discriminatory enforcement by law enforcement officers Doctrine of common law crimes Definition: even in the absence of an explicit statutory prohibition, acts can be made criminal if the ct regards them as directly tending to injure the public so much so that the state is required to punish the wrongdoer AGAINST: Violates all 3 principles of legality person didn=t choose to violate the law - wrong to punish her. A person should be able to now what conduct is criminal & what sis not, particularly when heavy fines are involved. law can=t have desired deterrent effect unless people are put on notice of the illegality of the specified conduct Judges should not create new crimes - that=s leg job criminal law may only act perspectively crimes must be defined w/sufficient precision to serve as a guide to lawful conduct & to confine the discretion of police & prosecutors - principle that any act that prejudices community may be punishable is a slippery slope. Vagrancy Laws Papachisto law: very vague ordinance giving police wide discretion. Bad b/c Fails to give person fair notice that his conduct is forbidden by the state, yet all people under rule of law entitled to be informed of this Encourages arbitrary & erratic arrests & convictions by failing to establish standards governing the exercise of the discretion granted by the ordinance allowing police to make arrests based on suspicion or for purposes of investigation, violating the 4th amendment requirement of probable cause. MPC: Rules: violation occurs if loiters/prowls at a time, place, or in manner unusual f/law abiding citizens under circumstances warranting alarm f/safety of persons/prop in vicinity actor takes flight actor refuses to ID himself actor manifestly tries to conceal himself or any object Prior to arrest, officer shall give actor opportunity to dispel alarm by asking actor f/ID & an explanation No conviction if officer didn=t give him a chance to explain OR explanation given was true, if, had it been believed at the time, it would have dispelled the alarm GOOD: more specific then Papuchrista still allows f/effective law enforcement w/out being overly broad BAD: imposes liability f/refusing to ID or explain oneself w/out proof of anti-social purpose plausible lie will avoid liability while an implausible truth leaves one open to arrest still too vague & gives too much discretion to police Defining Criminal Conduct: Actus Reus SEQ Outline_0 \* ROMAN \r 1I. Actus Reus Generallytc \l1 "I. Actus Reus Generally SEQ Outline_1 \* ALPHABETIC \r 1A. Rules: Voluntary Act Required (volitional)tc \l2 " A. Rules: Voluntary Act Required (volitional) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act [or omission to perform an act of which he is capable] MPC '2.01(1) following NOT voluntary acts: (MPC '2.01(2)(a-d)) bodily movement that is NOT a product of effort or determination of the actor, either conscious or habitual reflex/convulsion, bodily movement during unconsciousness or sleep, conduct during hypnosis or b/c f/hypnotic suggestion Involuntary act = act done by a person who is not conscious of what he is doing or not in control of his body. Newton SEQ Outline_1 \* ALPHABETIC \nB. Case Examplestc \l2 " B. Case Examples YES voluntary act People v. Decina: D knew he was subject to sudden seizures but decided to drive a car anyway. Had seizure, killing kids. Convicted of homicide b/c he knew that he could have a seizure when he was driving & kill someone NO voluntary act Forced:Martin v. State: D gets drunk in house. Cops come & force him out onto street when arresting him. Charge him w/ Aappearing in a public place & manifesting drunken condition.@. No guilty b/c statute presupposes a voluntary act of appearing in street. Unconsciousness--People v Newton: D shot in stomach. Goes into shock & while in shock kills police officer. Acquitted b/c unconscious complete def. Sleepwalking: Cogden: mother has repeated instances of sleepwalking culminating in cutting daughter=s head off w/an axe. Possession: if not knowingly procured or not aware of control, e.g. terrorist planted on you, while you were unaware. Reflex, Convulsion, SpasmC Like Decina but no previous awareness of the condition. Hypnotism: Can go both ways: MPC '2.01 comment: not voluntary, b/c his dependence and helplessness are too pronounced and Dr. Reiter: where hypnotized cell-mate to rob a back, held non-volitional. But People v. Marsh, rejected the Hypnotic defense, and Dr. Orne contradicts Reiter saying hypnosis just persuades, can=t do something that is deeply repugnant. SEQ Outline_1 \* ALPHABETIC \nC. Arguments about Voluntarinesstc \l2 " C. Arguments about Voluntariness YES voluntary act Aware of Risk: D knew that he would be at risk of killing - like drunk who decides to drive home, like Decina Willful Blindness: D is like possessor who avoids knowledge of what he is possessing in an attempt to avoid liability, like drug case, where the guy knew he was transporting something but did not want to look to see for sure. Broader Time Frame -- Broadening the time frame shows that while D=s act was involuntary at the time, there was a voluntary course of conduct leading up to the event showing that criminal harm was chosen - like child who becomes sick & is punished f/going out of the house in a storm w/out raingear - involuntary act was getting sick, but he chose to go outside. NO voluntary act Conscious?: D wasn=t conscious at the time he committed the act = unconsciousness is complete def law can=t deter involuntary movement or compel impossible acts anyway sense of personal security would be undermined if involuntary actions were included people whose involuntary movements threaten others are a public health problem - not a problem f/correction Preventable?:If purpose of crimlaw is to prevent bad conduct, question is whether wrongdoer could prevent the crime - and here, he couldn=t BUT this assumes a narrow time frame in re: act - if this is the real goal, then a broad time frame should be used (and is in regards to drunk drivers - Souter decision). Mental State?: Act + mental states are separate but necessary elements of a crime - here we have the act, but not the requisite mental state SEQ Outline_1 \* ALPHABETIC \nD. Voluntary act requirement may be meaninglesstc \l2 " D. Voluntary act requirement may be meaningless IS meaningless Manipulate time frame: V Act req is vacuous b/c it can be manipulated to yield whatever result one wants - whether there Ais@ a v act depends on how broadly a ct is willing to look for one . The proximate cause requirement doesn=t meaningfully restrict the time during which the V act may be found There will ALWAYS be a voluntary act which caused the criminal outcome unless the D has never had a V act in his life Moore=s approach that we just look for a voluntary act that lines up with culpable mens rea doesn=t work when dealing w/Strict Liability crimes that do not require mens rea. IS NOT meaningless No real Achoice@ here - if a ct can find a v act by D coupled with culpable mens rea at the time, then the D is prima facie liable f/the legal harm (so long as cause is established). Ct looks at all possible times - it=s always a broad time frame! Reason the D in Martin v S not convicted is that his earlier acts, while voluntary, didn=t meet the causal or mens rea requirements of the statute. Response to ALWAYS a vol. Act if time frame broad enough: people won=t be prosecuted for any voluntary act which caused crim conduct b/c req=t for Mens Rea still exists - still a restriction on proximate cause test SEQ Outline_1 \* ALPHABETIC \nE. Justification for requirement of a voluntary acttc \l2 " E. Justification for requirement of a voluntary act Law can=t deter involuntary movement or compel impossible acts anyway sense of personal security would be undermined if involuntary actions were included people whose involuntary movements threaten others are a public health problem - not a problem for imprisonment Since no temporal tribunal exists that can know the will of a man, we can=t punish for what we cannot know Too hard f/ others or even actors themselves to know whether one is wishing or actually intending something w/out act An individual who thinks evil thoughts must be protected from a state which may class him as a threat to its Asecurity@ - state can=t determine thoughts or predict whether behavior will result SEQ Outline_0 \* ROMAN \nII. Possessiontc \l1 "II. Possession Rule: Majority requires knowledge of possession, but some cts hold that it is sufficient that D should have known of the possession, especially if penalty is not severe. MPC 2.01: possessor must knowingly procure thing possessed or was aware of his control thereof for a sufficient period to be able to terminate his possession SEQ Outline_0 \* ROMAN \nIII. Omissionstc \l1 "III. Omissions SEQ Outline_1 \* ALPHABETIC \r 1A. Rules: (CL & MPC 2.01 same)tc \l2 " A. Rules: (CL & MPC 2.01 same) Liability f/commission of an offense may not be based on an omission unaccompanied by action unless both: Legal Duty to Act must exist: The omission is expressly made sufficient by the law defining the offense or otherwise, not just a moral duty(for example, failing to file tax returns) OR Causation: The failure to act substantially contributes to bringing about an illegal result AND A duty to perform the omitted act is otherwise imposed by law SEQ Outline_1 \* ALPHABETIC \nB. Sources of Dutytc \l2 " B. Sources of Duty Gen Rule: whenever a D=s act, w/or without his knowledge, imperils the person or property of another & the D becomes aware of this, he has a duty to take reasonable steps to prevent the peril from resulting in the harm in question. Professor J.C.Smith. Voluntary Assumption of care by Removing someone to a private place, must continue to assist if omission would leave V worse off. examples YES duty: People v. Oliver: D takes home guy, allows him to shoot up in bathroom, leaves him outside when he passes out in her living room & she was unable to wake him up Regina v. Stone: Ds take sister into house. V stopped eating, stayed in bed all day. D took affirmative steps to help V by washing her & trying to find doctor. Nevertheless Held liable on grounds - sister, lodger in house, tried to help her so duty of care owed NO: Beardsley: D takes woman home f/on weekend stand. Woman O.D.s but D doesn=t call f/help. Not married, so cts don=t impose duty, but her being isolated may make this case come out diff. now. Pope v State: D takes woman & child into her house b/c woman had no where else to go. Woman beat child over prolonged period, D never called f/help. No duty b/c mother always present. Duties imposed by contractual obligations example: Pestinikas: D made contract to care f/elderly man, but isolated him, refused to feed him, stole his money and allowed him to die. D convicted of 3rd degree murder. Arguments NO Duty ct=s function is to imply the criminal law, which is not duties voluntarily assumed by private individuals Ds not put on notice that their failure = criminal prosecution - violates Alegality@ principle YES duty If Ks involving one party putting his life into the hands of another, no enforcement mechanism f/the contract beyond contract law if one party doesn=t meet obligations limiting principle involved here - a mens rea still needs to be found Duty By Risk Creation: if you create risk must act to prev. ensuing harm: Jones v State: D raped 12 yr old, then allowed her to drown. D intentionally abstained from saving her, though no risk to self = 2nd degree murder. Welansky: nightclub owner locks emergency doors, servant neglig. starts fire and patrons die. Held: safe club is duty, omission in locking all exits = cause death, guilty of manslaughter Relationship (Mother/child, wife-husband, inkeeper-inebriated customers, homeowner-lodger) State v. Williams: duty of parents to care for child when sick BUT, Pope:No legal duty b/c not parent even though under roof. Duties imposed by statute: Lambert: statutory duty for felon to register, even though ignorance of law seen as no excuse, Lambert let off b/c never given opportunity to comply once she learned of the offense Moral Duty? Can=t be convicted if only a moral duty and no legal duty Kitty Genovese case: killed in NY streets while many witnessed from windows Rape in Mass with people watching and cheering, maybe you can get the cheerers for solicitation but what about those who just watched Misprision of felony, no crime not to report, requires active concealment of the felony SEQ Outline_1 \* ALPHABETIC \nC. Euthanasiatc \l2 " C. Euthanasia Rule: Active euthanasia is an act and therefore murder, while passive euthanasia is merely an omission. Because no duty to continue treatment exists where it has proven to be ineffective, omission is not murder ex: Barber v. Superior Ct: guy in permanent vegetative state. Turn off life saving machines, then the feeding tubes until he died. Decision GOOD: turning off respirator is a decision to no longer strive to save the patient Decision BAD: just a legal Aslight of hand@ - refuses to confront issue directly b/c if they say it=s killing then they would have to recognize an excuse or justification for it under this decision, an interloper who snuck in & turned off the machine wouldn=t be a murderer either. no real difference exists b/w omission & act - both cause the death SEQ Outline_1 \* ALPHABETIC \nD. Arguments whether Euthanasia = omission or Killingtc \l2 " D. Arguments whether Euthanasia = omission or Killing Should be treated as the same Hypo: Rachels= illustration w/the murderous cousin - no difference morally b/w drowning the child & watching him drown while doing nothing Only reason we think that the act of killing is inherently worse then letting another die is b/c we tend to Alump@ these acts together w/the circumstances they are usually involved in. B/c there are more instances in which the act of killing occurs in circumstances making it immoral, we just assume killing is worse. Should be treated differently As a society premised on individual liberties, criminal law should have limits - shouldn=t be able to coerce people to act to benefit othersC no duty to rescue. As a Arights based@ society, we accord more moral freedom for inaction practical problems: we fail to do things all the time; unlike actions, greater care needs to be taken to insure proper notice is given to people concerning liability for inaction too difficult to prove a person who failed to act had the requisite mens rea for an offense Line-drawing problems - should all 50 bystanders be prosecuted? practical problemsC resources to prosecute all Mens Rea Basic levels of culpability READ THE STATUTE - NOT ALWAYS LIKE MPC!!!!! SEQ Outline_0 \* ROMAN \r 1I. MENS REA GENERALLY: tc \l1 "I. MENS REA GENERALLY:  Conceptually: Broad: culpable mental state, guilty mind C Narrow: mental state rq=d by statute for the Actus Reus. Must have Mens Rea for each material element of the Crime. Must have separate Mens Rea for each Actus Reus Faulkner: intent to steal rum, but no intent to burn down the ship, but MPC might be charge w/ result crime. Cunningham: stole money from gas meter, but did not mean to put mother-in-laws life in danger. SEQ Outline_0 \* ROMAN \nII. PURPOSELY/Intentionally: MPC 2.02(2)(a)tc \l1 "II. PURPOSELY/Intentionally: MPC 2.02(2)(a) Rule: person acts purposely w/respect to a material element of an offense if conduct/result: it is his conscious object to engage in the conduct of that nature or cause such as a result; and attendant circumstances: he is aware of the existence of such circumstances OR he believes/hopes they exist, thus knowledge to attendant circ=s fills purpose Mens Rea. MPC Remember: transferred intent! person purposely or knowingly causes a result if the result differs only in respect that a different person or property is injured or affected, but can=t be too remote. MPC 2.03(2)(a-b) SEQ Outline_0 \* ROMAN \nIII. KNOWINGLYtc \l1 "III. KNOWINGLY Rule: person acts knowingly w/respect to a material element of an offense if: Conduct/Attendant circumstances: D is aware that his conduct is of that nature or that such circumstances exist Result: he is aware that it is practically certain that his conduct will cause such a result SEQ Outline_1 \* ALPHABETIC \nB. Transferred Intent: tc \l2 " B. Transferred Intent:  Rule: person purposely or knowingly causes a result if the result differs only in respect that a different person or property is injured or affected. MPC 2.03(2)(a). = Legal fiction to some extent, b/c you can just say that the person meant to kill a human being. SEQ Outline_1 \* ALPHABETIC \nC. Willful blindnesstc \l2 " C. Willful blindness CL : Defined in various ways: Rules: conscious purpose to avoid learning the truth only. US v Jewell. conscious purpose & subjective knowledge of a high probability of its existence Examples: YES: Jewell: D trying to smuggle pot in NO: Landlord who doesn=t check up on tenants MPC 2.02 (7): Knowledge established if D is aware of a high probability of its existence, unless she actually believes that it does not exist. MPC better: should require that the D be aware of facts indicating a high probability of the truth the person consciously avoids - otherwise a kid who consciously avoids opening up a present that turned out to have illegal drugs would satisfy requirements even though he didn=t know that there was a high probability that what was in there is drugs should require subjective knowledge - otherwise, a person could be convicted on an objective knowledge test which is more like negligence SEQ Outline_0 \* ROMAN \nIV. RECKLESSNESS: tc \l1 "IV. RECKLESSNESS:  Rule: conscious disregard (knowledge of all the 3 facts) of a substantial risk that is unjustifiable (substantial risk = less then substantial certainty) requires that the actor subjectively be aware of substantial risk of all material elements Like Decina, aware of past epilepsy, ignores that risk. SEQ Outline_1 \* ALPHABETIC \nB. Malice:tc \l2 " B. Malice: Recklessly or intentionally (thus knowingly or purposely) cause social harm of the offense (generally see in murder statutes). SEQ Outline_0 \* ROMAN \nV. NEGLIGENCEtc \l1 "V. NEGLIGENCE Rule: inadvertently creates a substantial & unjustifiable risk of which he ought to be aware of. Failure to perceive risk must be a gross deviation from the care that would be exercised by a reasonable person in D=s situation Ain the actor=s situation@ - phrase intended to permit courts to incorporate more subjectivity into the objective standard then is permitted at common law MPC 2.02 Criminal negligence is greater then ordinary civil negligence, punish conduct that is morally culpable not inadvertent. Santillanes v NM Negligence = an objective fault; not based on wrongful state of mind, but rather failure to live up to a certain standard BAD: crimlaw should only punish those who choose to do wrong. Since negligence doesn=t involve choice, actors shouldn=t be punished for failures crimlaw should only criminalize behavior which people can help avoiding no use f/punishing someone f/negligence b/c no deterrent effect b/c choice involved GOOD: negligence can be deterred by stopping people f/putting themselves in situations where they know they could injure others people who act negligently demonstrate by their behavior an indifference to the rights of others SEQ Outline_0 \* ROMAN \nVI. Applying the Mens Rea:tc \l1 "VI. Applying the Mens Rea: Rule: MR must be proved w/respect to each & every Amaterial element@ of an offense material element = Conduct, result, attendant circ=s, not procedure like S of Lim elements of an offense = conduct attendant circumstances result of a conduct excuse or justification of conduct SEQ Outline_0 \* ROMAN \nVII. Reading the statute to determine the MR f/each element:tc \l1 "VII. Reading the statute to determine the MR f/each element: MR tracks every conduct, att circumstances, & result element EX: AKnowingly & unlawfully entering a building at night w/the intent of committing crime.@ Knowingly tracks every element: entering building unlawfully at night W/intent of committing crime = this is a specific intent crime! More then one MR in a statute : Track all elements subsequent to one MR until the next one is listed! EX: ARecklessly driving a car w/the knowledge of intoxication.@ Recklessly : driving, car Knowingly : intoxication Only one MR in statute : The one MR tracks every element in statute EX: AUnlawfully entering building at night w/intent of committing crime@ Purpose: entering Knowingly : building, at night Specific intent crime : Aw/intent of committing crime@. NO MR in statute: CL and MPC usually assumes recklessness (so purpose and knowledge will suffice) NO NEGLIGENCE or STRICT LIABILITY. CL has applied Neg: Garrett: forgot gun in purse, applies a Ashould have known@ standard=neglig, tries to tailor to serious of offense. For offense of converting gov=t property, court has read in knowledge, see Morrissette. Grade of Conviction = lowest established mens rea w/ respect to any material element SEQ Outline_0 \* ROMAN \nVIII. Specific v. General Intenttc \l1 "VIII. Specific v. General Intent General intent crimes = statute calls for D to do a specific action. ex: trespass, no purpose specified purpose in mind Specific intent crimes = statute calls for D to have intent to commit some act w/some specified purpose in mind ex: burglary (requires proof that a further purpose existed to commit fel) Ex: U.S. v Neiswender: D convicted of soliciting bribe f/lawyer to decide case in a certain way. Even though they couldn=t prove D could have actually have done this, the conviction was upheld - D need only have knowledge or notice that prohibited result would occur Defense: Intoxication C may negative mens rea for a specific intent crimeC Hood: D=s intox. Negates intent in Aassault with intent to kill@, but still guilty of assault. SEQ Outline_0 \* ROMAN \nIX. Strict Liabilitytc \l1 "IX. Strict Liability : liability is imposed w/out any demonstrated culpability When no mental state is identified by statute CL Test: will usually read intent into statute Legislature=s intent : must be to regulate new problems - NOT Aease the prosecutions= path to conviction, stripping D=s defense at common law of innocence of evil purpose@. Cts reluctant to construe a crime as SL offense w/out an explicit statement of intent Will only apply it to statutory rape, malum prohibitum, new Aregulatory@ public welfare offenses Prince: Statute doesn=t specify a MR, he took a 16 yr old girl from parents, stat. Rape, Ct. says don=t need mens rea for this. People v. Olsen: modern version of Prince, focuses on absolute protection of girls, willing to sacrifice one guy for larger good Penalties must be low MPC: If legis. does not include specific MR requirement, ct will assume recklessness must at least be proven Examples INTENT REQ=D Morisette v. US (D convicted of statute f/stealing/converting gov property. Statute didn=t specify intent. D Astealing@ old shell casings left out in bombing field). Traditional crime, so need an intent element to prove the crime. U.S. v Staples : statute criminalizing possession of unregistered firearm. No intent specified. 10 yrs in prison. Firearm defined. D convicted of possession of firearm but didn=t know that the gun he had constituted a firearm b/c someone had changed the inner workings of the rifle he owned. statute would criminalize a broad range of apparently innocent conduct - req=s mens rea b/c so many people own guns & tradition exists of owning guns harsh penalty But see US v. Freed, Difference? NO INTENT REQ=D U.S. v. Freed: possession of unregistered grenades. Held: no knowledge req=d that grenades were unregistered. As a public welfare offense, but any more so than in Staples? U.S. v Dotterweich: shipping misbranded products. Leg protects those beyond self-protection b/c of circumstances of modern industrialization. US v. Balint: Statute does not prescribe any mens rea for opium and cocaine sales, no mens rea req=d, pub policy against dangerous drugs Strict Liability GOOD: Public Welfare cases are offenses against the State=s authority, b/c they impair the efficiency of controls deemed essential to the social order Deterrent effect Accused is in a position to prevent it w/no more care then society might reasonably expect & no more exertion then it might reasonably exact from one who assumed his responsibilities Removal of any loopholes will act as incentive to take precautionary measures which would otherwise not be taken People aren=t helpless to avoid committing the forbidden act - that is just if you look at the act in a very narrow time frame - invariably the case that the actor could have avoided liability by taking earlier steps which were hardly impossible. Penalties are commonly small & damage to reputation negligible b/c everyone knows its not a traditional criminal offense Legislative decision to place hardship on those standing in responsible relation to a public danger - those who at least have the opportunity of informing themselves of the existence of conditions imposed f/protection of consumers b/f sharing in illicit commerce. Proof of fault is too great a burden in time & money to place on the prosecution - proof of fault would result in almost every violator escaping, effectively nullifying regulatory schemes. W/out SL, no one will be responsible Strict Liability BAD: Mens Rea should be required: related to belief in freedom of human will & ability to choose b/w good & evil Not requiring mens rea violates fundamental principles of penal liability Unfair b/c D could not have helped committing the crime Rests on assumptions which are unestablished. higher standard of care does not nec result from absolute liability: if person is already taking reasonable precautions, not likely to take additional measures if he knows that it will not serve as defense in the event of harm stigma does attach to those convicted - loss of time, costs, reputation SL will select out a few individuals, it won=t stop those who are most confident in belief that they won=t result in harm, which may be the ones who are the most likely to. Also, it may exclude from that activity many others who could play a valuable role but who are unwilling to assume the unreasonable risk of suffering from penalties beyond their control every unjust conviction made known to the public tends to injury by undermining public confidence in law & administration Strict liability shouldn=t apply to productive acts society wants to encourage, b/c we shouldn=t punish people who have taken all reasonable steps to comply with the law. Unlike felony murder or statutory rape application, we want people to go to engage in business activities. Alternatives to traditional strict liability Canadian way: SL, but accused may avoid liability by proving that they took all reasonable care to avoid the harm. Regina v. City of Ste. Marie, later finds strict liability unconstitutional in Canada. Followed in U.S. v US District Court (Kantor): Ds produced porno w/Tracy Lords, 16. Held that Ds had an affirmative defense if they could show by clear & convincing evidence that they did not know & could not have reasonably learned, that the actor was not 18. SEQ Outline_0 \* ROMAN \nX. Constructive Malicetc \l1 "X. Constructive Malice : assumes MR when D does a criminal or bad act, but not necess. the act that results, see Faulkner, would try to hold for fire not just stealing rum Constructive Malice GOOD: Criminal intent to reach result X should be sufficient for all other results stemming from D=s act strict adherence to MPC rules would allow D to get off D gave up the right to say that the additional consequences of his acts were merely Aaccidents@ greater deterrent effect if we hold Ds liable f/all the results of their actions can still get the D under a negligence standard MPC is wrong anyway b/c it provides a set of precise rules whose operability depends upon jury=s willingness to make artificial characterizations people do not always have conscious objectives - don=t think of the kind of results they will cause in committing crime Juries cannot determine these specific answers b/c the actors themselves don=t know, & even if they did, juries can=t tell who=s lying/telling the truth Constructive Malice BAD: Common law & MPC have rejected this approach deterrent effect negligible b/c there is great uncertainty of punishment & the results are unintentional - D didn=t mean to do them crimlaw theory punishes bad acts performed w/a guilty mind - mens rea is required in our system f/good reason: crimlaw seeks to punish morally culpable behavior only SEQ Outline_0 \* ROMAN \nXI. DEFENSES:tc \l1 "XI. DEFENSES: Two Major types of defenses: Failure to prove essential element of the crime, e.g. actus reus, mens rea, causation... Affirmative Defenses: Excuse, Entrapment, Justification Excuse types excuse negates mens rea(mistake, Insanity, Diminished Capacity/Provoc., Intoxication) absence of reasonable alternatives (duress) SEQ Outline_0 \* ROMAN \nXII. Justification:tc \l1 "XII. Justification: Generally:tc \l3 "Generally: makes the bad action not unlawful in the specific case, although normally it would be. Represents the idea that in certain situations, society wants to encourage what seems like a bad thing to avoid something worse. Universal right of 3rd party assistance correlative w/duties of non-interference. tc \l4 "makes the bad action not unlawful in the specific case, although normally it would be. Represents the idea that in certain situations, society wants to encourage what seems like a bad thing to avoid something worse.Universal right of 3rd party assistancecorrelative w/duties of non-interference. SEQ Outline_2 \* Arabic \n2. Law Enforcement/Protection of property:tc \l3 " 2. Law Enforcement/Protection of property: Durham: [game warden shoots  in arrest for illegal fishing] Rule: Under CL, cops, etc... could use any force against criminal. Here, Ct rejects use of deadly force in a misdemeanor. Garnder: [cop shoots escaping unarmed kid after possible burglary] Rule: Deadly force cannot be used against a fleeing felon unless ? Reasonable belief in furture dangerousness. SEQ Outline_2 \* Arabic \n3. Self Defense:tc \l2 " 3. Self Defense: Generally True S-D gets you off completely. Imperfect S-D: Allowed in some jurisdictions to reduce from murder to manslaughter. Based on unreasonable but honest belief in necessity of force. (This becomes an excuse) CL: Req=ts A person who: is not an aggressor honestly (subj.) + reasonably (objectively) believes that deadly force is necessary to protect herself from imminent, unlawful use of deadly force by another person is: Justified in using deadly force Non-aggressor: no S-D if  was original aggressor. Peterson: [sees guys stealing windshield wipers] Rule: If  was initial aggressor cannot use force of any kind. Note:  can be considered initial aggressor if he was the initial provoker, even if V actually struck the first blow. Reasonableness: Objective standard Applies to both imminent danger and necessity to use force If reasonable, but mistaken, still have defense If unreasonable and wrong, no def. (except imperfect in some juris.--becomes excuse) Goetz: [subway massacre. Statute says Areasonably believes@] Rule: Reasonableness is to be determined Aunder the circumstances@ but is still objective, still Areasonable man@ but under the circumstances of . More than just an honest belief, which would be Abelieves@ by itself. Retreat rule: Majority says no need to retreat Minority says if  knows of a completely safe retreat, must use it. (in cases when allowed to respond with deadly force) Exception--no need to retreat from home. Abbott: [neighbors fight over driveway] Rule:  was allowed to respond w/ deadly force b/c of Vs use of hatchet, but must retreat if possible. Imminent unlawful deadly force Imminent-this is what screws battered wives Rules out subjective understandings of imminent Unlawful-can=t use s-d for against a cop, etc... who is using lawful force. MPC: force is justifiable, subject to ' 3.09, when actor believes (subj.) it is immediately necessary for the purpose of protecting against unlawful force. MPCs use of Aimmediately necessary@ instead of Aimminent@ is a relaxation of CL rule ' 3.04--no mention of reasonable, only honest belief ' 3.09--mistake in justification If mistake, no defense against crimes w/ MR of negl. or Reck. 3.09(2) Deadly force is justified only if necessary to protect from death, serious bodily harm, kidnapping, sexual assault Mere production of a weapon will not suffice. NY adds robbery (Goetz) Under MPC, if  was original aggressor, cannot respond with deadly force, unless originally used non-deadly force (different from CL). SEQ Outline_3 \* alphabetic \nd. Battered Womentc \l2 " d. Battered Women Kelly: [batt. wife-he attacks her at store, she stabs w/ scissors. Should BWS testimony be allowed?] Rule: Yes-BWS testimony goes to prove honesty and reasonableness of belief in imminent danger. Note: Schneider article--jury needs this testimony because no way to understand reasonableness of her belief. Most jurors have no similar experience Aris: [BWS] Rule: CA Ct. says BWS testimony goes only to honesty of belief (subjective) and not to reasonableness (objective). Norman: [batt. wife-cigarettes and dog food, she shoots him while he=s asleep] Rule: She didn=t meet imminence req=t so she doesn=t get S-D instruction Note: Here the court declined to even give imperfect S-D instr. b/c still requires imminence. Jahnke: [boy tries to claim Abattered person defense@against parents] Rule: The only role for battered person evidence is in evaluating the reasonableness of fear in S-D situations. Victims of abuse are not automatically entitled to kill abusers. SEQ Outline_3 \* alphabetic \ne. Retreat ' 3.04: tc \l2 " e. Retreat ' 3.04:  No duty to retreat against non-deadly force If Deadly Force-->Retreat or surrender possession-->But no duty to retreat from home or work-->unless V works there too, (if place of work). SEQ Outline_2 \* Arabic \n4. Necessity/ALesser Evils@:tc \l2 " 4. Necessity/ALesser Evils@: Private necessity: choosing between the lesser of two evils happening to you. Unger: [escapes prison after threats of killing/rape, Ct instructs using Lovercamp standard](error. instr.) Rule: Ct. declines to require Lovercamp standard which would have required that  report to authorities ASAP. Instead says Lovercamp conditions are factors to be used, absence of one or more elements does not mandate a finding that  could not assert necessity. Note: In Bailey, SCt held in favor of Lovercamp standard as prereq for invoking necessity defense in prison escapes. Prisoner is faced with specific, immediate threat of death rape or beating. No time to report to authorities, or authorities have ignored in past. No time to report to courts No force used against prison/law personnel or other innocent people. Prisoner immediately reports to authorities when in a safe position. Is private necessity more like excuse? Public Necessity: Doing something bad to prevent a greater social harm. ex. burning a field to create a firebreak and save a town. Owner of the field has no right of S-D b/c your actions are technically not unlawful. If you are reasonably mistaken as to the necessity (the availability of a justification), then it becomes an excuse--the owner would have the right to use reasonable force against your actions. Schoon: [El Salvador policy-IRS protest](G) Rule: necessity defense not available for indirect civil disobedience. B/c no immediate harm no causal connection Always legal alternative (political processes) MPC ' 3.02 [Justification Generally] The weighing of evils is objective--you better get it right. Belief of necessity is subjective-- Areasonable@ If  causes the 1st evil recklessly or negligently, then no defense to being charged with a crime w/MR of negl or reck. NY Code No necessity def. if  is at fault in any way. Traditional Approach: If  was unreasonable in believing the necessity, no defense. Mistake of Fact SEQ Outline_0 \* ROMAN \nXIII. Mistake of Fact: General Rules tc \l1 "XIII. Mistake of Fact: General Rules  MPC '2.04: ignorance/mistake of fact is a defense if it negates the existence of a state of mind essential to the definition of the offense Defense not available if D would be guilty of another offense had the situation been as he supposed. If this is the case, D will be liable f/offense he would be guilty of had situation been as he supposed But look to '5.01, if engaging in conduct which = crime, then if the attendant circs were as he believed them to be, and 5.01(1b): if result crime: if he thinks the conduct will bring about such result, thus, MPC in a way holds impossibility as a crime of attempt, and gets rid of defense. CL: can negate specific intent, not general intent but sometimes do 2 things impose a Areasonableness@ requirement - can=t claim outrageous mistakes as defense. This only applies to crimes w/mental state of recklessness or negligence. bar defense of mistake if the act D thought he was committing is malum en se (bad in itself). Exception: AIf facts were as you believed them to be and still guilty of a lesser crime@-- CL charge w/ higher crime; MPC charge with lower crime @ MR, e.g. 1st degree Stat. Rape= 12 yrs, 2nd degree= 14 yrs; mistakenly believe she is 13 when really 11. CLC guilty of 1st degree vs. MPC guilty of 2nd degree. SEQ Outline_0 \* ROMAN \nXIV. Imposition of Mistake of Fact reasonableness requirementtc \l1 "XIV. Imposition of Mistake of Fact reasonableness requirement Arguments AGAINST Due process violation : pros not required to prove every element of the crime Sixth Amendment: may violate individual=s right to have a jury determine her guilt/innocence Should not apply f/intent crimes - would punish morally innocent behavior on the basis that individual was Astupid@ Arguments FOR Keeps Ds honest - stops outrageous claims f/reaching the jury If we allowed unreasonable mistakes of fact f/barring prosecutions, we would let Ds who harm others w/ no good excuse or explanation get away BUT mistake of fact simply relates to the relevant mens rea - technically wouldn=t need an excuse b/c it goes to whether the prohibited act was actually committed SEQ Outline_0 \* ROMAN \nXV. AMalum en se@ issuetc \l1 "XV. AMalum en se@ issue Rule: CL cts require that the Ds conduct would have been morally permissible had the facts been as he D believed them to be b/f mistake of fact can clear him of charge Examples: Regina v Prince: D took 14 yr old girl away f/father. Girl told him she was 18, he believed her. Act of taking a girl away f/parents wrong in itself White v State: D left his pregnant wife. Statute criminalized leaving pregnant wife. D didn=t know she was pregnant. Act of leaving wife wrong so D liable. People v. Olson: D has sex w/13 yr old, charged w/having sex w/14 yr old. Reasonably believed her to be 14. People v. Lopez: D gives pot to minor, charged w/giving pot to minor. D says he didn=t know kid was minor - no defense b/c this fact only adds to punishment & mistake of fact relating only to gravity of an offense won=t shield a wrongdoer f/full consequences of a wrong act committed Arguments FOR: Strict adherence to mental states requirement would allow Ds to get off scott free in some instances [ex: D has sex w/girl under 10, thinking she=s older then 10. Can=t be prosecuted f/having sex w/ either under 10 or over 10 b/c he was mistaken on the first count & facts don=t support the second count] Legis did not intend that a defense of mistake of fact apply to the statute b/c the statute protects a class of people in need of special protection & raised the penalties to show how serious it is A mistake of fact should be accepted by the community as an excuse only when it follows the community ethic - otherwise, why accept it? AGAINST: Astrict liability@ approaches to crimes should only occur when the offense is a regulatory or public welfare offense should also be restricted to crimes that don=t have huge penalties - this contradicts basic principles of criminal liability which demand mens rea it should also be restricted to cases where the actor can be in a position to prevent the crime using reasonable care. MPC recognizes this - it bans mistake of fact defense when it concerns minors under the age of 10 but not concerning minors above that age. This is merely constructive malice doctrine dressed up - a wolf disguised in the sheeps clothing of moral condemnation common ethic is undefinable & should not be basis f/criminal liability - moral duties should not be considered synonymous w/criminal duties why should the ethics concerning one form of conduct affect a determination of another kind? SEQ Outline_0 \* ROMAN \nXVI. Mistake of Law tc \l1 "XVI. Mistake of Law  Generally, ignorance of the law is no excuse and b/c doesn=t negate mens rea (Gardner). However, certain exceptions exist to this general rule. b/c statute usually don=t require knowledge of law in the def=n of the crime, and malum in se anyway. Mistake or ignorance of law creates a mistake of fact: If the mistake of law negates a requisite mens reas of the crime, then it can be used as a defense, b/c technically no crime has occurred. Examples (YES) People v. Weis: Ds held man against will believing him to be kidnapper. Defense allowed against charge that they held a person w/out authority of law, b/c their mistake negated that element. Regina v Smith: kid installed wall panels & floor boards in his apt, then tore them down to retrieve stereo equipment. Defense allowed against charge of destroying anothers property b/c he believed that floor panels were his property. Definition of the offense requires knowledge of the law: Rule: if the offense specifically requires that D know the offense exists, then ignorance of that law is a defense. Courts are likely to do this only in cases of malum prohibitum crimes which are hard to follow, in order to avoid criminalizing otherwise innocent conduct. Examples YES defense: Cheek v. U.S.: D didn=t pay taxes on his income b/c he believed he didn=t fall under the provision AND that the tax laws were unconstitutional. Statute: Awillfully attempts..to evade or defeat a tax imposed by this title or payment thereof@. S.Ct. held: in tax cases, Awillfullness@ requires that D knew of duty & voluntarily and intentionally violated that duty b/c of complexity of tax system & desire to not punish innocent mistakes by people using reasonable care AUnconstitutional@ argument is not a defense!!!! Liparota v US: food stamp law: statute: prohibits knowingly using coupons in manner not authorized by the statute. Ct held that this meant D must have known of the regulation his conduct violated (as opposed to just knowing he was doing actions which violated the regulation). B/c to do otherwise would criminalize a broad range of apparently innocent conduct. People using them may not know they=re using them illegally b/c store owners could use diff prices. Ratzlaf v. US: statute: Guy paying off gambling debt, statute = willfully violating antistructuring of transactions provision. Had to prove both knowledge of statute & that actions constituted violation of statute. NO defense: State v. Hildebrandt: D convicted of knowingly & willfully making false statements to IRS. ct held Awillfully@ does not require knowledge that was illegal to file the false form - only means that D did act deliberately & with knowledge. B/c it was malum en se: straightforward prohibition against making false statements to the government US v Int=l Minerals & Chemicals: statute: prohibits person from Aknowingly violating@ a regulation of the ICC regarding transportation of dangerous materials. Ct held that he Aknowingly@ did an act that violated the regulation was enough, did not require that D knew of the existence & meaning of the regulation Justification for defense Purpose of crim Justice is to punish people for choosing freely to do wrong. Those mistaken about the law do not have intent to do wrong so they shouldn=t be punished No need for individual deterrence since the person is law-abiding in principle In older days, defense wasn=t accepted b/c crimes consisted of acts which by their very nature were recognized as evil - but now there are lots of laws that make otherwise lawful conduct criminal. BUT: people should know the law society shouldn=t reward people f/not knowing the law too difficult to establish that someone knew of a partic. law Mistaken belief that the conduct does not violate the law: Rule (MPC & other states have it as well) valid defense IF EITHER The statute defining the offense is not known to the actor AND has not been published or otherwise reasonably made available prior to the conduct alleged The person acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid/erroneous, contained in either: a statute or other enactment a judicial decision, opinion or judgement an administrative order or grant of permission an official interpretation of the public officer/body charged by law w/responsibility for the interpretation, administration, or enforcement of the law defining the offense NO MISTAKE OF LAW WHEN INTERPRETATION IS NOT AOFFICIAL@ Example. People v Marrero: corrections officer carried loaded gun w/out license. Claimed that he thought he fell under statute authorizing Apeace officers@ from carrying weapons Arguments: should this rule be allowed? Defense BAD: Statutes are complex; if this defense allowed, everyone would be able to get off - would make an infinite # of mistake of law defenses People are bad judges of the law - will read statutes in ways that will be best for them to admit ignorance of the law as an excuse would be to encourage ignorance where the lawmaker has determined to make all men obey would make it easy f/people to lie & say that it was a mistake just to get off Defense GOOD: The State should make the law simple so that everyone can understand Merrero=s interpretation was reasonable! Crimlaw should only punish those with criminal intentions. D thinks his behavior is against the law when doing an act, but it is really not. Rule: no crime to defend against, so defense doesn=t come into play at all Ex: Regina v Taaffe: D thought he was smuggling $ & that smuggling $ was illegal. He was really smuggling drugs, but didn=t know it. Conviction quashed b/c Mistake of Fact as to what he was smuggling Even though he thought he was breaking the law, he wasn=t, so no Amistake of law@ defense needed. SEQ Outline_0 \* ROMAN \nXVII. Excuse: Insanity: negatives Mens Reatc \l1 "XVII. Excuse: Insanity: negatives Mens Rea M=naughten Test (cognitive) D does not know the nature and quality of the act critique:too cognitive, clear answers contrary to psych method Irresistable Impulse (volitional) as a result of mental disease or defect acted with an irresistable &uncontrollable impulse OR lost power to choose between right and wrong, no free agency MPC:as a result of mental disease or defect, D lacked capacity to: appreciate criminality of the act conform conduct to the dictates or the law crit: b/c acquitted John Hinkley SEQ Outline_0 \* ROMAN \nXVIII. Excuse: Diminshed Capacity/Provocation (See Homicide Section for More Complete')tc \l1 "XVIII. Excuse: Diminshed Capacity/Provocation (See Homicide Section for More Complete') SEQ Outline_1 \* ALPHABETIC \r 1A. Provocation - Murder v. Intentional Manslaughtertc \l2 " A. Provocation - Murder v. Intentional Manslaughter Majority rule : Normative/Categorical Approach: limits as a matter of law source of provocation : must be in the heat of passion as a result of certain kinds of provocation. Works like partial justif., reducing murder to manslaughter. Source of provocation Rule: Greatly limited by trial judges: only recognized things like substantial physical injury, substantial assault, mutual combat, illegal arrest & adultery w/offender=s spouse (note: women seldom kill their unfaithful spouses) The Judge decides if evidence warrants provocation & the jury decides if d was actually provoked. Examples NO provocation Words alone Girouard v S: wife told D that she was divorcing him/filing charges, that he was bad in bed & that she didn=t love him S v Shane: V tells D that she had affair w/2 Not your wife McGourk & McDonald: girlfriends in bed - one was one of 25 years Racial antagonism f/bystanders S v Madden: mob killed cop after shooting & wounding of suspect Yes provocation S v Thornton: D catches V w/wife after watching them f/hours, going to get gun, letting air out of V=s tires so he wouldn=t leave, hearing sounds & then finding them in bed. Unwelcome Homosexual advances; seen as provocation in some courts Psychological Approach: works more like a partial excuse, like a concession to human frailty Rule: asks Jury to answer 2 questions: was D in an extreme emotional state (subjective test)? Is there a reasonable explanation f/this psychological state? Determine reasonableness by looking at the viewpoint of the person in the D=s situation under the circumstances as he believed them to be, however inaccurate that perception may be. MPC (210.3(1b)) Judge will take away instruction if response was not an understandable human response deserving of mercy. Cassassa. Maher: flexible psych. approach, let jury decide what is reas. in these situations. Intoxication Defense: Negative mens rea for specific intent crime, if D lacked capacity to form it Voluntary vs. Involuntary Intox Voluntary: sometimes Def to specific intent crimes but never defense to general intent crime Involuntary can be defense to both, see Martin v. State C must be a voluntary condition to be guilty. SEQ Outline_0 \* ROMAN \nXX. DURESS: Rational Excuses b/c Absence of Reas. Alternatives tc \l1 "XX. DURESS: Rational Excuses b/c Absence of Reas. Alternatives  Deprived of Free will by Threat C CL Test: Threat must be imminent Must be of such a nature as to induce a well grounded apprehension of death or serious bodily harm. Threats of minor injury or damage to property don=t count. At CL duress did not excuse killing of an innocent. MPC ' 2.09--use of force or threat of force against his person or another person which a person of reasonable firmness in his situation would have been unable to resist. MPC duress is unavailable if  was reckless in placing himself in situation. Also unavailable for crimes with MR of negl. where  was negl. in placing himself in situation. Toscano:[Dr. commits fraud b/c he owes gambling debts] Rule: NJ Ct. declines CL rule, goes for MPC approach. B/c no imminence req=t, his duress excuse works. Note: There is a minority view that duress should be a justification instead, because it is not MR negating. Claire thinks it should stay excuse. Actus Reus:Causation SEQ Outline_0 \* ROMAN \nXXI. Actus Reus = CAUSATION: Homicide offensestc \l1 "XXI. Actus Reus = CAUSATION: Homicide offenses are result crimes so CAUSING death is the AR SEQ Outline_1 \* ALPHABETIC \r 1A. Actual Causetc \l2 " A. Actual Cause : Rule: result would not have occurred but for D=s conduct (the voluntary act) Proximate Cause SEQ Outline_0 \* ROMAN \nXXII. Prox. Cause: Standard of causationtc \l1 "XXII. Prox. Cause: Standard of causation: (REMEMBER: DS TAKE VICTIMS AS THEY FIND >EM) Note: almost all standards have to do w/@forseeability@ of harm - puzzling standard b/c cts approach the question of forseeability differently, sometimes demanding more or less forseeability and sometimes refusing the question completely. Majority approach: If the resulting harm is something which should have been forseen as reasonably related to the acts of D, then PC is satisfied. NOTE: If the D=s acts placed deceased in a position where he was particularly vulnerable to a separate and independent force, then PC is also satisfied so long as that force is not fueled by a responsible human decision to act. examples: Twilight Zone case: deaths caused by helicopter blade. Unclear how blade was damaged; ct held that precise cause of the crash was irrelevant & that Ds liable if the risk was Areasonably forseeable@ P v Deitsch: D owned warehouse w/blocked fire escape; fire started & employee was killed b/c couldn=t get out. No cause f/fire established. Ds created unsafe conditions which created great danger in the event of fire & fire was forseeable. Minority approaches: Anything which results from D's actions is forseeable unless the result is highly extraordinary. P v Acosta: 2 helicopters collide during chase of D. Never been a crash before. Pilot acted negligently. However, not a Ahighly extraordinary result@, so PC satisfied. Is the actual chain of events leading to the V=s death forseeable? example: Warner-Lambert: had an explosion hazard in their factory which resulted in an explosion. No evidence of what triggered the explosion, or what acted on this hazard to make the explosion occur. No prox cause b/c no evidence that the way the explosion occurred forseeable. Is the D=s actions a sufficiently direct cause of death? P v Arzon: D set one fire in building on 5th floor. Firefighter killed fighting it b/c another fire started on floor below combined w/D=s fire. Fire was Asufficiently direct cause of death & death is something which should have been forseen as reasonably related to acts@ - doesn=t really mean anything. MPC: (2.03): Justice Oriented = small minority: [purpose/knowingly: result must be intended, or if it=s recklessly/negligently, result must be w/in the risk, UNLESS] the result is not too remote or accidental to have a just bearing on the D=s liability & involves the same kind of injury or harm as that designed or contemplated ? Recognizes that Proximate Cause determination is just shorthand f/saying whether the ct believes the person should be held responsible f/the harm SEQ Outline_0 \* ROMAN \nXXIII. Vulnerability of Victimtc \l1 "XXIII. Vulnerability of Victim Rule: D takes V as he finds him/her Example: P v Stamp: V has heart attack during robbery. D liable P v Brackett: D beats V, 85 yr old woman, resulting in broken rib, facial injuries, & depression. Supposed to have a nasal feeding tube but couldn=t b/c of facial injuries. Choked to death b/c unable to clear throat due to advanced age & pain associated w/rib. SEQ Outline_0 \* ROMAN \nXXIV. Intervening Negligence of Doctortc \l1 "XXIV. Intervening Negligence of Doctor 3 Rules If wound caused death indirectly through a chain of natural effects unchanged by human action, D responsible. If D inflicts serious wound calculated to destroy or endanger life, D still liable even though unskilled/improper treatment aggravates the wound & contributes to death. D is not liable if negligence of doctors Aextraordinary@ ex: R v Jordon: Docs gave V poisonous substance & flooded his lungs, causing sickness & death. SEQ Outline_0 \* ROMAN \nXXV. Subsequent Intentional Human Actions: Intervening Causestc \l1 "XXV. Subsequent Intentional Human Actions: Intervening Causes CL : Subsequent human actions which have been Afreely chosen@ are considered independent actions which may break the chain of causation b/w D and result. Actions aren=t considered Afreely chosen@ when taken w/out full knowledge of the circumstances rendered Airresponsible@ and such duress was induced by the D=s actions otherwise, a criminal swindler would be responsible for the suicide of person who he cheated. Test: what was the motive of the actor - to get away f/further harm or to avoid consequences of actions already taken against her? MPC: focuses on the MR of the D - asks simply whether it=s same kind of harm intended/risked & whether it=s not too remote/accidental. Examples of CL NO LIABILITY Suicide cases: P v. Campbell: D gives V a loaded gun knowing that V wants to kill himself & leaves, but hope is not req. intent for murder. Important: Act is held voluntary, so even if death was forseeable result of leaving gun, not liable. S v Preslar: D fights w/V. V leaves & decides to lay down outside house in the cold, got sick & died. CT FINDS LIABILITY Stephenson v S: D abducted V & raped her. V committed suicide by taking pills while D was in other room. D held liable b/c V was under D=s power at the time - she didn=t know when he would come for her - all she knew was that nothing could stop him. Rex v Beech: D trying get into V=s house & kill her. V jumps out window. Rex v Valade: D has sex w/minor in apartment. Minor jumped out window to get away f/D. P v Lewis: D shoots V. V dying slowly so he slit his own throat to end pain. D liable b/c V was bleeding out of both ends. Rule about irresponsibility BAD: problems of proof undermine its effectiveness b/c impossible to know whether the actor was sane or not during his/her actions OR why they took these actions In Stephenson, court didn=t really think that it was the physical injuries which caused the suicide - it was the humiliation of being raped. This is different then an actor acting in response to imminence of deadly peril b/c her motive f/suicide was not to escape further assault but to escape the shame of what had already been done to her. SEQ Outline_0 \* ROMAN \nXXVI. Subsequent Reckless Human Actionstc \l1 "XXVI. Subsequent Reckless Human Actions [There is much dispute on whether D should be held responsible if D is being reckless & another is being reckless, too, and the reckless actions of the other results in death.] Maj approach: if death results f/commission of a reckless offense, D liable. S v McFadden: drag race b/w D & another driver who killed a girl. Ds initiated series of events resulting in death of another. C v Fienberg: D sells sterno to customers knowing that they drink it. When he gets stronger dose then usual, sells it anyway w/no warning & people die. Min Approach:There must be a Adirect causal connection@ b/w D=s conduct & resulting death. NO: C v Root: Drag racing - D and deceased drag race & deceased dies. Deceased challenged D. Not direct enough YES : Russian Roulette Atencio: 3 guys playing Russian Roulette together. participation = mutual encouragement of others to continue playing; no assumption of risk in cjs different f/drag racing b/c RR is a matter of luck only, while in racing the skill of D=s competitor determines likelihood of harm People v Kern: white guys chase black man w/bats. Black guy trying to escape recklessly ran across a highway & was killed by negligent driver. Ds convicted of involuntary manslaughter. (driver not neg & even if he was, white guys can still be prosecuted) JUSTIFICATION: Abandoned proximate causation standard as tort law concept unfit f/criminal law b/c it=s too expansive: to extend criminal liability to persons charged w/unlawful or reckless conduct in situations which usually don=t result in death makes criminal liability depend on accidental/fortuitous circumstances of which actor has no control. Min Approach: Reckless acts NOT PC of death if V=s Afree will@ breaks the causal chain NO: Lewis v S: D encouraged 15 yr old to play RR before. After RR, D put gun away & went into the other room. V took gun out of drawer, spin chamber, & killed himself. SEQ Outline_0 \* ROMAN \nXXVII. Human Actions - should they mattertc \l1 "XXVII. Human Actions - should they matter NO If the standard is forseeability or direct cause, then no, b/c all that matters is that the later actions were forseeable, just like other causes. SUICIDE: Emphasis on human decisions is just another way of saying Aassumption of the risk@ or that the V Awanted@ to die - and this isn=t allowed under the law. Doesn=t matter that V wanted to die - importance of the value of life will be upheld by society even if occasional individuals disparage it through killing themselves or others. DETERRENCE: activity should be deterred; only way to deter suicides is to get to those around the suicides who could have prevented it. RETRIBUTIVIST: D has shown evil intent & willingness to take action to further this intent. AND not fair that D should be punished f/crime if the V goes through w/it but not an identical D whose actions don=t result in death b/c the V or 3rd party doesn=t do what D thought they would YES Standard is forseeability - should matter b/c you can=t predict what another person is going to do. Standard is direct cause - causal chain is broken by the subsequent actions of another person. A person is primarily responsible f/what he himself does - not responsible or blameworthy for what other people do. Fact that D=s conduct provided the background f/subsequent voluntary act by another doesn=t make the D responsible for it. SUICIDE: V caused his/her own death - they took ultimate responsibility f/the death by taking their own life. To hold D responsible would be a miscarriage of justice. Cause standard unneeded? Unneeded AForseeability@ standards implied irregularly & vaguely The rational & moral grounds should lead one to focus on the D=s conduct & state of mind or degree of culpability - not on whether some harmful result actually occurs. 2 Ds w/same acts have demonstrated same degree of dangerousness & culpability - no reason to treat them differently. Causation analysis is just a shorthand way of expressing a belief that the D deserves to be punished for a certain outcome. Any conclusion that D caused Vs death isn=t an additional reason f/concluding that he should be punished, but just another way of expressing this retributive urge. Needed It is a widely shared intuition that the actual death of the V is relevant Necessary to satisfy the retributive urge aroused by the death of the V. Vs who complete their crimes have derived more satisfaction f/them b/c they=re completed - have derived a greater benefit f/their refusal to follow society=s rules. Thus, the law should saddle them with a greater burden in order to Abalance the scale.@ Homicide NO DEGREES OF MURDER AT COMMON LAW!!! LOOK AT THE APPLICABLE STATUTE FIRST!!! SEQ Outline_0 \* ROMAN \r 1I. Homicide at Common Law/PA/CA:tc \l1 "I. Homicide at Common Law/PA/CA: Murder = unlawful killing of a human with malice aforethought Degrees: No degrees under common law; 1794 PA statute first distinguished degrees of murder, anything evidences pre-meditation (lying in wait) Calif. adds murders committed in the perpetration of enumerated felonies All other murders = 2nd degree (i.e. Reck +) Manslaughter = unlawful killing of human being without malice Voluntary: heat of passion/provocation Involuntary: Gross negligence or during commission of unlawful act (Neglig. Homicide or Misdemeanor Manslaughter). SEQ Outline_0 \* ROMAN \nII. Definitions under MPC: Section 210tc \l1 "II. Definitions under MPC: Section 210 SEQ Outline_1 \* ALPHABETIC \r 1A. Criminal Homicidetc \l2 " A. Criminal Homicide - purposely, knowingly, recklessly, or negligently causes death of another human being (no degrees under MPC, NY 1st Deg is cop killer all others are 2nd degree) SEQ Outline_1 \* ALPHABETIC \nB. Murdertc \l2 " B. Murder (210.2) if: committed purposely or knowingly (no express malice/pre-med req=t) committed recklessly under circumstances manifesting extreme indifference to the value of human life (recklessness +) Recklessness + assumed if D is engaged in or is an accomplice in the commission, attempt to commit, or flight therefrom a felony MPC list : robbery, rape, deviate sexual intercourse by force or threat, arson, burglary, kidnaping, or felonious escape SEQ Outline_1 \* ALPHABETIC \nC. Manslaughter (210.3tc \l2 " C. Manslaughter (210.3) Involuntary - committed recklessly [CL: just negligently ok] 2nd degree in NY along with aiding suicide Voluntary - homicide which would otherwise be murder committed under MPC test: the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse, the reasonableness being determined from viewpoint of the person in the D=s situation as he understands it (1st deg in NY) NY: Intent to cause serious injury CL test: done in the heat of passion as a result of adequate provocation SEQ Outline_1 \* ALPHABETIC \nD. Negligent Homicidetc \l2 " D. Negligent Homicide : Homicide committed negligently SEQ Outline_0 \* ROMAN \nIII. Mens Rea:tc \l1 "III. Mens Rea: SEQ Outline_1 \* ALPHABETIC \r 1A. Malice Aforethoughttc \l2 " A. Malice Aforethought: express malice: wilful, deliberate, premeditated intent to inflict grievous bodily harm: Gilbert (CA): malice may be established when D voluntarily initiates gun battle w/ cops@ felony murder at CL implied malice: depraved heart recklessness SEQ Outline_1 \* ALPHABETIC \nB. Premeditation: First v Second Degree Murdertc \l2 " B. Premeditation: First v Second Degree Murder CL: no degrees, lumped together wilful, delib, and pre-medit. CA/PA: Thing that distinguishes 1st from 2nd Degree is Premeditation: [ the process by which intent to kill is formed or the D finally decides to act on the intent to kill]. Cts disagree about what the actual definition of what premeditation is. Maj of cts: demand proof of Premeditation & Deliberation AndersonRule: A result of careful thought & weighing of consideration. 3 types of evidence usually sufficient f/finding of premeditation: Proof that D planned activity prior to killing A relationship w/V from which one could infer motive The manner of the killing shows a preconceived design to kill V and was calculated to result in V=s death. NOTE: test requires strong (1) or (2) w/(1) or (3). Examples YES P v Perez: D kills V during robbery when V recognizes D. D stabs her, but when knife breaks inside body, gets another knife & finishes job P v Hilary: D parked car near V=s house, snuck in, tied her up, took her & scissors to ditch & stabbed her in chest S v LeChance: D killed V using repeated blows S v Owens: stabbed cabbie multiple times, but when he stayed alive, slit V=s throat S v Forrest: D goes into hospital w/gun & kills terminally ill father NO P v Anderson: D stabs girl 60 times w/knife when mom & family about to come home. knew girl f/8 months S v Bingham:D strangled V, took 3-5 minutes. Length of time isn=t enough b/c could have done it f/other reasons having opportunity to deliberate is not evidence that such deliberation took place S v Brown: D beat child until kid died. Neither scenario worked f/premeditation: D intended to beat kid only D became enraged while beating child & killed him A conscious choice to bring about death - specific intent to kill all that is req=d. Rule: Some pre-medit. but No time too short f/choice to be made - can actually be made during the act of killing someone. Examples: YES Carrol: D, enraged at wife during fight & acting on an Airresistible impulse@ picked up a gun & killed her as she was turned towards wall. Had put gun there earlier. Young v S: D involved in sudden scuffle during which he killed 2 people w/gun. Held: premeditation satisfied as D pulled trigger O=Searo: D used deadly weapon on vital part of V=s body. Specific intent to kill all that is required. Arguments re: which definition better 1st Definition BAD: making premeditation simply rest on the choice to kill will mean that every intentional killing is 1st degree murder b/c there can be no intent unless there is choice. What this amounts to in practice is giving the jury the right to exercise mercy in certain cases - but this choice should be given to them directly if at all & with guidance 1st definition GOOD: conscious choice is what should be punished; guilty mind and act... Arguments re: distinction f/prior deliberation NO DISTINCTION - MPC prior reflection often reveals a better character or is involved in cases in which we want to forgive (ex: mercy killings): Gilbert v. State prior reflection often absent in cases which are just as bad - ex: rape that goes bad lack of prior reflection can even reveal a worse attitude towards life - reflect extreme indifference to human life YES DISTINCTION Person who plans ahead is worse then the person who kills on a sudden impulse (but why?) Prior reflection people are more culpable then sudden killers b/c they have more knowledge of the impact of their actions Prior reflection people are harder to reform b/c they already have values system - it=s just one very dangerous to society Prior reflection people are more dangerous b/c they are more likely to succeed in murder & escaping getting caught b/c they have and take time to plan Prior reflection people are most likely to be deterred f/higher penalties b/c they actually have time to take them into account Prior reflection people are the ones who require the highest penalties b/c they are more likely to get away - according to Bentham, principle of utilitarian punishment is the less certain a punishment is, the greater it must be. SEQ Outline_1 \* ALPHABETIC \nC. Provocation - Murder v. Intentional Manslaughtertc \l2 " C. Provocation - Murder v. Intentional Manslaughter Majority rule : Normative/Categorical Approach: limits as a matter of law source of provocation : must be in the heat of passion as a result of certain kinds of provocation. Works like partial justif., reducing murder to manslaughter. Source of provocation Rule: Greatly limited by trial judges: only recognized things like substantial physical injury, substantial assault, mutual combat, illegal arrest & adultery w/offender=s spouse (note: women seldom kill their unfaithful spouses) The Judge decides if evidence warrants provocation & the jury decides if d was actually provoked. Examples NO provocation Words alone Girouard v S: wife told D that she was divorcing him/filing charges, that he was bad in bed & that she didn=t love him S v Shane: V tells D that she had affair w/2 Not your wife McGourk & McDonald: girlfriends in bed - one was one of 25 years Racial antagonism f/bystanders S v Madden: mob killed cop after shooting & wounding of suspect Yes provocation S v Thornton: D catches V w/wife after watching them f/hours, going to get gun, letting air out of V=s tires so he wouldn=t leave, hearing sounds & then finding them in bed. Unwelcome Homosexual advances; seen as provocation in some courts Cooling time Rule: Too long a time period b/w provocation & killing may render provocation inadequate as a matter of law & no JI will be given. Prevailing rule is that the killing must immediately follow the provocation or follow an event rekindling the rage Examples: NO Bordeaux: D finds out V raped mom 20 yrs ago. Beats V, returns shortly after & kills him Stahl: D walks away after V slaps him w/gun, returns & shoots V Gounagais: V sodimizes D. 2 weeks of taunting, D kills V. Victims other then Provoker: general rule: no provocation defense Examples YES: Mistaken identity: S v Mauricio: D beaten up by P. Kills V thinking that he is P NO: Innocent bystanders: Rex v Seriva: D watches driver hurt daughter, kills bystander trying to stop him from hurting driver Spurlin: D kills wife after fight, then kills son Arguments: provocation defense available when victim not provoker? YES defense - should be manslaughter: Fact that they killed innocents points to their lack of control If provocation is seen as an excuse, then it only deals w/D - doesn=t matter who the victims are Once self control is lost, it=s unrealistic to insist that D=s retaliatory actions be directed only against his provoker - he has no reason to guide his anger NO defense - should be murder attacking nonprovoker is unreasonable as a matter of law people attacked have to be related to the provocation - killing son that=s sleeping so unrelated to provocation that its unreasonable harm to society is too great if anything is allowed once provocation occurs when actor is provoked, he loses his self control to contain desires to hurt the provoker - not to hurt all people Psychological Approach: works more like a partial excuse, like a concession to human frailty Rule: asks Jury to answer 2 questions: was D in an extreme emotional state (subjective test)? Is there a reasonable explanation f/this psychological state? Determine reasonableness by looking at the viewpoint of the person in the D=s situation under the circumstances as he believed them to be, however inaccurate that perception may be. MPC (210.3(1b)) Judge will take away instruction if response was not an understandable human response deserving of mercy. Cassassa. Maher: flexible psych. approach, let jury decide what is reas. in these situations. Differences f/old approach Only looks at the state of the D: problem becomes a medical problem in which expert testimony almost required More cases will get to jury on this approach Much more flexible as to cooling time Examples YES provocation defense allowed S v Elliot: D had big fear of older brother f/years. Just shows up one day & blows him away. No triggering event needed - EED can be brought on by significant mental trauma that caused D to Abrood@ f/ a long time P v Berry: D waited in old girlfriend=s apt f/20 hours - when she returned, she screamed at him & he killed her. Identity of victims don=t matter NO provocation allowed: Cassassa: D killed V after V decided she didn=t like him anymore. Not an excusable emotional disturbance b/c after looking at situation f/D=s perspective, it was not an understandable human response deserving of mercy Zdanis: D killed another member of family after discovering niece was dying. P v Walker: Drug dealer killed old supplier who refused to supply him w/more drugs after supplier taunted him. Judge rejected defense as a matter of law P v Mejia: V menaced D w/screwdriver at work - D took out gun & shot V. Judge refused under Cassassa standard. Which standard is better? MPC problems: Requirement that factfinder assess reasonableness from the point of view of the D has reduced test to psychobabble - no standard to really apply b/c no way to evaluate a state of mind like that Simply passes on the problem of judging the D=s mental state to the jury, who are less better equipped to judge the D=s state of mind. These are problems f/the law to decide by setting standards the jury can follow Should: eliminate the Af/D=s viewpoint@ language OR keep it, but eliminate certain things in the term such as Athe actor=s situation@ & give better guidance to the jury in deciding it Normative Approach problems: Standards were very sexist; based almost solely around situations in which men tend to react violently, b/c men are usually the ones who react violently in our society in the first place. Didn=t give adequate consideration to D=s mental state by refusing to recognize sources of provocation & psychological fact that Acooling time@ doesn=t necessarily mean a change in mental state. Should provocation defense exist at all? YES: 2 Reasons why homicide is punished: to deter & to achieve retribution. Law doesn=t deter in cases of provocation, so competing arguments exist: lack of deterrent effect leads utilitarians to seek no punishment, while retributivists want the full punishment. Defense of provocation can thus be seen as a compromise - it neither exacts the full penalty f/homicide nor allows Ds to go w/out punishment EXCUSE Offense is less bad then killings occurring in calm mental state b/c it was caused by an inherent weakness in human nature that all normal people have - excusable. Under EED, actors have no control over actions & are thus less culpable b/c the act of homicide is Aalmost@ involuntary Crim law should not punish actions which Ds cannot help but do - shouldn=t impose standards normal men cannot meet b/c then it=s unfair & a matter of chance as to who becomes confronted with a situation which would make almost any man kill JUSTIFICATION : Both V and D are guilty of moral wrongs - unlike regular killings, in which only D is guilty of moral wrong NO: EXCUSE: Reasonable people do not kill when enraged - they always contain the capacity to control homicidal desires, in part b/c it is not easy to kill, even when enraged Murder always involves intent to kill - but w/intent comes choice JUSTIFICATION Not accepted today in modern courts Amoral wrongdoing@ of V should be irrelevant to law=s judgment of D b/c his actions cannot be a reaction to V=s moral wrongs if the Auncontrollable rage@ thesis is taken seriously, since D has lost the ability to reason & is unable to make moral judgement about V=s actions. If moral wrongdoing of V is unknown to D then its irrelevant to D=s own moral culpability. Response: this assumes that D cannot know of moral wrongdoing of V, but it ignores obvious fact that the very reason D has become enraged is the immorality of the act. Acts of provocation can be defined as those acts which are immoral on their face - no Areasoning@ required. immoral acts are irrelevant anyway - it shouldn=t make V=s life any less deserving of protection by society The high value we place on life in other areas of the law reflect common law=s rejection of provocation as a Ajustification@ for the taking of life. Unintentional homicide SEQ Outline_0 \* ROMAN \nIV. Negligent Killings: Criminalized activity or not?tc \l1 "IV. Negligent Killings: Criminalized activity or not? SEQ Outline_1 \* ALPHABETIC \r 1A. CL: Negligent killings are considered manslaughtertc \l2 " A. CL: Negligent killings are considered manslaughter when the D shows Agross negligence@ - a great departure from reasonable conduct. A V=s contributory negligence is nevera defense, but may affect whether D was the proximate cause of death. YES: C v Welansky: nightclub owner had emergency doors locked which resulted in many people dying in fire. Guilty of manslaughter even though he was only negligent. Ordinary Negligence sometimes can convict (rare): S v Williams: Ds didn=t take baby to hospital f/2 weeks when the child had toothache - resulted in baby=s death. Standard was ordinary negligence - statute later repealed. SEQ Outline_1 \* ALPHABETIC \nB. MPC: Negligent Homicidetc \l2 " B. MPC: Negligent Homicide : A new category of offense f/negligent killings separate f/manslaughter requiring negligence (substantial & unjustifiable risk of death that is a gross deviation f/reasonable care.) No criminal convictions f/ordinary negligence. SEQ Outline_0 \* ROMAN \nV. Reckless Killings : Murder vs Manslaughtertc \l1 "V. Reckless Killings : Murder vs Manslaughter CL/CA rule: Unintentional killing is murder (rather then manslaughter) when the D shows Amalice@ defined as showing a Awicked heart@ or a Adepraved heart regardless of human life.@(implied malice) Ex: C v Malone - gross recklessness = malice: Russian Poker game where D pulled trigger 3 times at V. D didn=t think gun would fire. MPC: Unintentional killing is murder (rather then manslaughter) when D has mens rea of Arecklessness +@ - recklessness w/extreme indifference to value of human life. Must take a substantial & unjustifiable forseeable risk of causing human death. Requires a conscious awareness of the (great) risk of death. Matter f/jury as to whether risk was recklessness + or just reckless Drinking: If actor is unaware of risk b/c of intoxication, it is not a defense : no knowledge of risk req=d. Examples of MURDER: Malone: kid put bullet in revolver & pressed trigger 3 time Williams: father failed to feed baby, knew no one else would feed it, knew it would die w/out him but Ajust didn=t care@ DD CASES: Fleming: goes 100 miles per hour against traffic - risks arose out his actual driving decisions, not just the fact that he was driving. Pears v S: 2 cops told him not to drive; 2 stop signs, red lights Watson: fact that he drove to bar & must have known he would drive home later. Hamilton: no actual awareness of risk needed - driver Ashould@ have known Arguments re: culpability f/Negligent actions OBJECTIVE standard: no knowledge required Purpose of the law is to prevent life f/being taken or endangered, so laws= job is to deter men f/dangerous conduct. Will increase effectiveness of law to require men to know the teachings of common experience so as to know when they tend to risk others= lives. Knowledge of the facts constituting the risk is still required - it=s a limiting principle, so no danger of a Aslippery slope@ the logic of individualization would lead to an individual being judged only by himself The advantage of the objective standard is that it allows the law to fulfill its function as a normative force which sets standards of conduct that people have to meet MPC: when people know that they can be punished f/accidental risk creation, it provides additional motive to take care b/f acting. MPC: in cases of Ds acting w/insensitivity to others= interests, moral defects can be imputed. DD: MPC simply uses a broader time frame in these cases b/c it assumes that people know what they will do when they are drunk Law invests people w/duty to know what sort of people they are & to know to stay sober if getting drunk endangers lives. Dunfield Will deter DD s from driving drunk No real practical bite anyway since Ds can=t really persuade people that they didn=t know about an obvious risk SUBJECTIVE: knowledge of risk of death required. Holmes admitted that recklessness in a moral sense depends on the actual condition of the D=s mind w/regard to the consequences - not mere knowledge of the facts of a situation. Thus, in order to only punish morally wrong actors, have to look at their state of minds. Punishing stupid people will not deter people f/hurting others - people still get in car accidents even though they know they can be held liable but there would be more car accidents if there were no liability - it does have some deterrent effect Not fair to use D to deter other Ds by making him an example Not fair to ask people to conform to standards that they cannot meet - that would hold a person criminal b/c of lack of intelligence or ability. People should have the opportunity to avoid punishment by doing what the law requires. German law agrees: must be capable of the care they were obliged to take when they failed to take the care. but law punishes in these cases : ex: serial rapists If no knowledge required, then D can be convicted even though they can=t know/not know ahead of time that what they were doing is criminal. Equating recklessness w/intentional murder ignores the fact that the malum en se (person not crime) ordinarily demanded isn=t present in many of these convictions. Ex: kid in Roecrying his eyes out after killing friend Religious people : the Areasonable person@ is somebody - it incorporates value judgements. Thus, the objective test simply imposes the majority=s views onto the minority DD: MPC approach is more appropriate for a negligence standard then recklessness b/c you=re imputing knowledge where there is no evidence of either knowledge or the risk. Simply knowing that you=re going to be driving home drunk shouldn=t be enough b/c you=re not likely to kill when you drink & drive: death is not the probable result of DUIs. Thus, DD standard is more like Strict Liability. MPC contradicts itself by giving this exception In these cases, very important that culpability of actor be demanded b/c this is the one case where it will be plausible that they didn=t understand the risks Only those who chose to do evil should be punished under CJS - no choice here under either broad or narrow time framing. Felony Murder SEQ Outline_0 \* ROMAN \nVI. Felony Murder CLtc \l1 "VI. Felony Murder CL: If D kills another during the commission of the felony, the intent to commit the predicate felony satisfies the intent f/murder, whether or not the killing was intentional or not. C like constructive malice. All participants in a felony will be guilty of murder if one causes the death of another. Must take V as is...EX: P v Stamp: D robs V at gunpoint & D has heart attack and dies. D is convicted of murder under FM rule b/c D was held responsible f/all killings committed by him in the course of the felony. SEQ Outline_0 \* ROMAN \nVII. Felony Murder: MPCtc \l1 "VII. Felony Murder: MPC: incorporates FM doctrine into definition of murder: Recklessness + will be presumed if the actor is engaged or is an accomplice in the commission/attempt to commit, or flight after committing/attempting to commit, robbery, rape/deviate sexual intercourse by force/threat of force, arson, burglary, kidnaping or felonious escape. 210.21 Unless the ct is satisfied that the evidence as a whole clearly negatives the presumed fact, the question of the existence of the fact must be submitted to the jury SEQ Outline_0 \* ROMAN \nVIII. Proving FM under CL:tc \l1 "VIII. Proving FM under CL: Predicate felony is independent of the homicide (follows) Homicide was in furtherance of the felony (follows) Felony was the cause of the death (follows) Predicate felony was inherently dangerous: Inherently dangerous Rule: FM doctrine only applies to homicides committed during the course of felonies inherently dangerous to human life inherently dangerous = offense carries a Ahigh probability@ of loss of life. 2 approaches to Ainherently dangerous@ question: Maj approach: Look at the elements of the felony in the abstract, disregarding the particular facts of the case, to determine whether YES: DO NOT EXAMINE STATUTE AS A WHOLE: Patterson: furnishing cocaine, violating statute which listed lots of different offenses involving different illegal substances. Ct did not view statute as a whole b/c no primary element existed in the statute, due to the variety of offenses contained therein. Heacock: distributing cocaine: Statute dangerous b/c it had great potential f/abuse & was id=d as a controlled substance NO: LOOK AT STATUTE AS A WHOLE: Henderson: D kills V while violating felony of false imprisonment by violence, fraud, or deceit. No FM b/c the felony doesn=t necessarily involve life-endangering conduct due to Afraud & deceit@ part of felony Philips: D took $ f/parents in exchange f/@unconventional@ treatment f/8yr old son who had cancer. Son died b/c treatment was phoney. Charged w/grand theft - no FM b/c the felony was not dangerous in abstract but note: P v Burroughs: D violated felony of unlicensed practice of medicine under conditions creating risk of great bodily harm. FM applied. Switchell: D was in possession of a shotgun, violating law saying exfelons can=t possess weapons. D killed V while in possession; no FM b/c possession isn=t inherently dangerous (yeah right...) Look at the nature of the offense in the abstract AND at the circumstances of the crime=s commission. Goodseal. NO Ford v S: D, former felon, possessed firearm in violation of law. While cleaning it, accidentally fired it through floor, killing tenant beneath him. No FM b/c not inherently dangerous in particular circumstances YES S v Randolph: D distributing heroin. In the abstract, not inherently dangerous, b/c death isn=t most probable result f/taking drugs, but under circumstances it WAS inherently dangerous b/c someone warned D that heroin was Auncut@. Abstract Better: If Ct looked at the facts of each particular case, almost every felony would qualify b/c they all have resulted in death of someone Whole reason we want to limit FM doctrine is to those felonies in which death is a likely result - no reason to apply it to others b/c no deterrent effect will result b/c death doesn=t result in them anyway Whole process is meaningless: Its the job of the legislature to make determinations as to which felonies are Ainherently dangerous@ or most likely to result in death. Are not felonies that have substantial likelihood of death SEQ Outline_0 \* ROMAN \nIX. Predicate Felony must be Aindependent@ of the homicideC Expansive Mergertc \l1 "IX. Predicate Felony must be Aindependent@ of the homicideC Expansive Merger Rule: If the homicide resulted from a felonious purpose independent to the predicate felony then the FM rule applies. If the homicide resulted from a Asingle course of conduct w/ a single purpose, then the homicide merges w/predicate felony. Justification: w/out this limit, all homicides would become murders b/c the felony of assault occurs w/every homicide. Felony merges: Asingle course of conduct w/single purpose@ or Aintegral part of the homicide (Smith) Ireland: D assaults wife w/deadly weapon, killing her Burglary Def of burglary = entering another=s premises w/intent to commit a felony). In this case, felony = assault w/deadly weapon, so no independent felonious purpose. Argument that it=s dangerous proves too much. Wilson: D commits forc. entry & assault w/deadly weapon & kills. no FM Sears: D commits burglary w/intent to assault mother, but ends up killing her daughter instead. N FM b/c it would be unfair to make the inadvertent killer in a worse position then the killer who killed his intended victim following entry (since in Wilson no FM rule f/burglary) Child Abuse: P v Smith: purpose of conduct was the assault which resulted in death - no independent purpose. FM RULE APPLIES Burton: D kills another during course of a robbery. Burglary Argument: FM rule=s purpose is to deter violence in felonies in which death is likely to occur. Burglaries in which the intended felony is criminal assault are much more likely to result in death b/c of the fact assault occurs in a person=s home b/c victim more likely to resist the assault & less likely to be able to get away more likely that friends/family members will attempt to help & be killed. Miller: D entered V=s apt w/intent to kill V=s roommate, but killed V when V tried to help roommate. NY included burglary as list of predicate felony. Child abuse: Argument: independent purpose separate f/intent to commit harm existed - to bend child=s actions into conformity. Jackson (child refused to undress correctly resulting in beating). BUT then parent who beats child just to beat him gets off while parent who beats child to discipline him is prosecuted BUT must be independent felonious intent - this exception proves too much. Argument: when there is prolonged abuse resulting in eventual death, a different mental state present which is separate f/intent to commit harm existed - recklessness +. SEQ Outline_0 \* ROMAN \nX. In furtherance of Felony tc \l1 "X. In furtherance of Felony : When a person other then the felons kills another person, is the D liable? 3 approaches: SEQ Outline_1 \* ALPHABETIC \r 1A. Agency theorytc \l2 " A. Agency theory - modern trend: Rule: In order to convict f/FM the killing must be BOTH done by the D or an accomplice of D - act can be done either actively or constructively done in furtherance of the felonious undertaking. AND, killing committed by a non-felon (victim or cop) falls outside of FM rule (Canola) examples FM DOES NOT APPLY : S v Canola: V kills one of the felons during robbery Heinlen: 3 Ds rape V. One D suddenly kills V. Actions by the killer were not in furtherance of the felony Waters: 2 Ds commit burglary into 2 V=s apartment w/intended felonies being robbery & possibly rape. D kills accomplice to save the V. FM doesn=t apply to killing of the accomplice since it wasn=t in furtherance of felony. FM DOES APPLY: S v Amaro: 2 Ds. One already arrested. Second one kills police officer trying to get away. Act done Ain furtherance of a common design@. Shield cases: Under a strict agency approach, no FM should apply, but it does even under this approach b/c of special circumstances: Ds force decease to occupy a place of danger in order to help them commit crime. Diff from other circumstances b/c certainty that V will die - Ds have control over situation & in fact create it Ds more control over this then in S v Amaro. SEQ Outline_1 \* ALPHABETIC \nB. Proximate Cause approachtc \l2 " B. Proximate Cause approach: (minority view) : liability attached f/any death proximately resulting f/the unlawful activity, unless the death is justified (in cases of cofelons) in which case no murder, by definition, has occurred FM APPLIES : Alemedia: Police shoot officer by accident trying to stop D. (Overruled by Smith v Myers). FM applies b/c the killing of officer by another is merely an excused killing. Liability transfers to D b/c excuse only applies to the police officer - not the D. FM DOES NOT APPLY : Redline: Police men kills co-felon. No FM b/c no murder - killing was justif ed. Justification is based on surrounding circumstances so it doesn=t matter who pulled trigger. SEQ Outline_1 \* ALPHABETIC \nC. Vicarious Liability approachtc \l2 " C. Vicarious Liability approach (little-used) : if D=s accomplice commits murder, D is guilty of murder through vicarious liability. This allows State to hold felon responsible f/ a killing committed by a V in response to provocative behavior by one of the felons, if behavior rose to level of recklessness +. YES: Taylor v Superior Court: 3 felons. 1st felon points gun at V, acted like he was going to shoot V. V started shooting, killing 2nd felon. 3rd felon charged w/the death of 2nd b/c 1st killed him through recklessness + behavior. NO: P v Antick: 2 felons. 1st shoots at cops & is killed. 2nd can=t be charged w/murder b/c no murder-1st didn=t bring about the death of another, only himself. Arguments Agency approach better b/c Modern progressive thought favors restriction of FM rule - this approach most restrains its application Purpose of FM is to deter criminals f/violence during felonies. PC approach is pointless b/c felons can=t control the actions of nonfelons - no deterrent effect. Purpose of FM doctrine is to protect the public & prevent the death of innocents. The Proximate Cause approach doesn=t achieve this goal b/c it protects the perpetrators of crimes as well Unless accomplices do the killings, the murder isn=t committed to perpetuate any felony - rather, the murders are committed to thwart the felony if done by V or cops. In every felony, possibility exists that V will resist & kill. To impose additional penalties on Ds f/their actions arbitrarily discriminates against Ds since distinction isn=t based on any differences in their conduct ProxCause approach is better b/c Basic tenet of FM liability is that the MR of the underlying felony is imputed to those responsible f/the killing. Thus, doesn=t matter how the death occurs, so long as the responsible act is a result of the felonious conduct. If a D sets in motion a chain of events which should have been w/in his contemplation at the time, he=s liable - kind of like recklessness as a matter of law. DEATHS OF COFELONS INCLUDED - good Their lives aren=t worthless - someone should be punished Holding cofelons responsible f/each others= murder deters them from using lethal weaponry in the first place, or committing the kind of felony in which someone is likely to be shot/killed. DEATHS NOT INCLUDED - good Redline approach excludes them f/protection while still holding Ds liable f/killings of innocents. SEQ Outline_1 \* ALPHABETIC \nE. D=s criminal conduct was the actual & proximate cause of V=s deathtc \l2 " E. D=s criminal conduct was the actual & proximate cause of V=s death YES: P v Stamp: V has a heart attack during felony. D takes his victim as he finds him NO: King v Commonwealth: Ds in airplane smuggling coke crashed airplane during heavy fog. Felony want proximate cause b/c crash wasn=t made more likely by the fact that the cargo was illegal. NOTE: if the plane had been flying low to avoid detection, then it would be the proximate cause C v Williams: D, driving illegally w/out license, kills someone while driving. No FM b/c expiration of license had nothing to do w/accident (Unlawful Act Doctrine) Todd v S: D steals collection plate & flees. V chases D in car & crashes into tree, dying of heart attack. No cause b/c while it triggered a chain of events leading to death, the petty theft wasn=t the kind of direct, forseeable risk that would support conviction (Unlawful Act Doctrine) Statutory limitations on FM doctrine Examples: Designate a non-presumptive list of felonies For 1st degree murder conviction only, w/the rest of the felonies making Ds liable f/2nd degree only. Penn crim code For murder conviction in general, w/the rest of the felonies making D liable f/manslaughter (Ind. Code) or nothing at all (N.Y. Penal). To raise the degree of the murder f/2nd to 1st. Designate a presumptive list of felonies: MPC Abolish FM doctrine all together. Michigan in P v Aaron. Which is better - keeping FM doctrine or getting rid of it completely? KEEP IT Deters dangerous conduct during felonies - deters Ds f/killing negligently/accidentally by holding them strictly responsible f/whatever happens f/killing intentionally b/c it takes away a potential defense of killers, who often claim killing was accidental it=s simple, readily enforceable & widely known(?) It=s an important aide to proof in murder trials, make sit much easier for prosecution to get murder conviction FM achieves the balance of advantage b/w /Ds and the State by compensating the State against the extraordinary procedural protections afforded to Ds. Fair: we punish negligence to deter negligence: why can=t we punish accidental killings as well? Fair: wrongdoers run the risk that outcome will be worse than expected when they commit felonies - they have no grounds to complain that the bad acts they commit turn out to be worse then expected. If legislature finds that deaths are more likely when certain felonies are committed, leg has the right to make actors responsible f/consequences which, while perhaps unforseen by Ds are recognized by leg. Taking differences in result into account when classifying crimes is not only fair, but necessary : ex: murder vs attempted murder. FM doctrine reflects a societal judgement that an intentionally committed felony that results in death is a more serious felony then one which does not result in death. GET RID OF IT Unconstitutional b/c its effect is either to conclusively presume malice (thus violating requirement of proof beyond a reasonable doubt) or to eliminate the requirement of malice (thus violating the 8th Amendment requirement that severe punishments be proportional to culpability). Deterrence: most statistics suggest that the FM rule is used most often in cases in which the felon intentionally killed the victim, or in which she acted in a reckless manner, in which the rule is unnecessary no evidence that homicides actually occur more frequently w/certain felonies. Unfair, b/c when it=s applied to accidental homicides, it transfers the intent to commit the felony to the homicide resulting in disproportionate punishment - it=s not tied to D=s mental state or wrongdoing. Unfair, b/c it punishes one D more severely than another D who did exactly the same thing simply b/c the first had the misfortune of accidentally causing death. This is just as bad as randomly killing Ds charged w/the same crime. If the State can=t meet the standards the legislature has set out for murder, then no conviction - we have these requirements f/a reason SEQ Outline_0 \* ROMAN \nXI. The Death Penalty : evaluating DP statutes - three requirementstc \l1 "XI. The Death Penalty : evaluating DP statutes - three requirements SEQ Outline_1 \* ALPHABETIC \r 1A. Discretiontc \l2 " A. Discretion (DA and Jury): lead to too much arbitrary enforcement: History: would lead to nullification b/c if convicted everyone was convicted to death, so jury would change facts to exculpate DP cannot be imposed in an arbitrary manner - it must provide information & guidance to a jury for sentencing using objective standards. NO: Furman: discretionary capital punishment in 1st degree murder cases. AFreakishly@ imposed Woodson: mandatory death penalty f/1st degree murder conviction - simply Apapered over@ the problem of lack of discretion. Violates 8th amendment YES: Gregg v Georgia: statute provided 10 statutory aggravating circumstances. 1 had to be proven beyond a reasonable doubt in order to put to death. Allowed to consider any other mitigating circumstances as basis f/mercy. procedure: bifurcated trial: guilty then penalty/mitigation and aggravation automatic appeal of DP sentences to State Supreme Court. Jurek: quasi mandatory death penalty OK, b/c within categories with aggravating and mitigating factors to guide the jury to Aproper@ answer. Jury must be able to consider any of the particularized aspects of the D=s character & background any any circumstance of a case as mitigating factors NO: Woodson: mandatory sentencing Shuman: mandatory death penalty f/lifers in prison who kill Lockett: mandatory DP if one of 7 aggravating circumstances found no mitigating circumstances found (only provided f/3) victim had initiated encounter unlikely D would have committed murder if he hadn=t been under duress, coercion, or strong provocation offense product of D=s pychosis/mental deficiency Eddings: trial judge disallowed consideration of D=s family background Skipper: Tr judge disallowed consideration of D=s good behavior in prison awaiting trial Penny v Lockett: jury only allowed to consider mitigating circumstances in respect to the question of whether there is a probability that D would do further acts. Held: too narrow a focus (reversed by Collins) YES: Jurek: mandatory DP if jury answers yes to all three questions: deliberate & reasonable expectation of death D will continue to be a threat to society allows mitigating circumstances to be placed b/f jury Whether D=s conduct was an unreasonable response to provocation by the V. Graham v Collins: jury only allowed to consider mitigating circumstances in respect to question of whether there is probability that D would do further acts - just like Penny v Lockett DP cannot be grossly disproportionate to the crime YES DP: Tison: 2 brothers break father (murderer of prison guard in earlier jail break) out of jail, give him guns, then leave him alone w/family of 4. Father murders all 4, dies. 2 brothers guilty of recklessness+, can get DP NO DP: Coker: Rapists can=t get DP Enmond: FM rule applied to getaway driver who waited in car while accomplices murdered couple. Arguments re: DP good/bad GOOD: Response to verdict in Furman shows that it is not beyond Aevolving standards of decency.@ Not saying that public opinion decides any argument, but as for this question, public opinion does decide b/c this is a democracy. BUT: Cts shouldn=t derive/decide constitutionality of something based on public opinion Clearly allowed by Constitution, which states ANo person shall be deprived of life, liberty, pursuit of happiness..@ - implies that we can If SCt accepted Baldus study=s results as a basis f/invalidating DP, then impossible not to allow this principle to extend to other areas of the law - no limiting principle. BUT:this is invalid argument - essentially saying that we should allow one wrong b/c exposing it would lead to exposing other wrongs. Baldus study presents facts which are appropriate for legislative bodies only, b/c they are the only ones qualified to weigh the results BUT can=t leave it to the legislature b/c those being punished have almost no representation or say in our legislative bodies. Baldus study doesn=t show that McClesky was biased against, only that a risk existed that he was. To let him off b/c of study would mean letting a guilty man escape punishment on the basis of an inconclusive study regarding his particular trial. BUT: standard b/f was never that an actual bias had to be shown, only that a risk of discrimination/imposition of arbitrary sentence existed. BAD: The inevitability of the factual, legal, and moral error produces inherent constitutional deficiencies allowing a system that wrongly kills some Ds There is a heightened need for fairness in the application of the DP b/c of fundamental respect f/humanity Limiting principle exists b/c of the fact that it=s the DP Baldus study showed that 20 out of 34 Ds in Amid-range@ group would not have been sentenced to death if their Vs had been black instead of white. Shows overwhelming bias against Ds who murder whites. MIDDLE GROUND: Baldus study doesn=t necessarily mean that DP should be abolished, b/c it revealed that in the category of serious crimes, race of the V was not an issue. Thus, concerns it raises could be addressed while keeping DP by narrowing the category of crimes that can be punished by the DP to encompass only the kinds grouped in Baldus=s Aserious crimes@ category. SEQ Outline_1 \* ALPHABETIC \nB. How to Apply the DPtc \l2 " B. How to Apply the DP Aggravating and Mitigating Circs: Lockett: you must allow all mit. circs, unconst. to allow only some types Penry: must allow mitig. circs even low mental ability Graham: court limited youth as to mitig. circs to the extent that it could counter aggrav. factor of continued threat to soc. Creech: phrase Autter disregard for human life@ as one of the aggrav. circs to bump up sentence to DP was not unconst. vague. Rape SEQ Outline_0 \* ROMAN \r 1I. RAPE: Types of Statutes:tc \l1 "I. RAPE: Types of Statutes: Type 1: need intercourse, non-consent, and forcible compulsion Type2: need intercourse, and forcible compulsion feminists like b/c looks only at D=s conduct, not V State may read non-consent right back in: Canola: two gay guys, one raped, ct says that consent is a Defense, but burden on D (normally burden on P) MTS: force = non-consent Type 3: intercourse and non-consent needed: But Thompson: calls non-consent force or threat of force. MPC: similar to Type 2 (Sect. 213.1(1)(a)) SEQ Outline_0 \* ROMAN \nII. RAPE: General Definitions: tc \l1 "II. RAPE: General Definitions:  CL: sexual intercourse by a male, with a female not his wife, by force or threat of force, against her will & w/out her consent MPC: sex by a male w/a female not his wife if he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnaping, to be inflicted on anyone V is not required to use physical force to resist; any resistance is enough when her lack of consent is Ahonest & real@. SEQ Outline_0 \* ROMAN \nIII. Mens Rea for RAPEtc \l1 "III. Mens Rea for RAPE : in US courts, MR issues are discussed in terms of what defense is available to Ds accused of rape, rather than including the required MR w/in the definition of rape. General Rule : It is a defense that D thought consent was given if the D=s mistake is honest and reasonable. - the required mental state is negligence. Ex: C v Sherry: 3 co-workers take woman back to their house after a party & all have sex with her. She verbally protested at first but then became scared & didn=t fight. Ds want actual knowledge requirement, but that is rejected. Ds convicted b/c mistake of fact re: consent was honest but NOT reasonable. 2 limitations: Defense not allowed when the V was either unequivocally resisting or consenting (Tyson) GOOD: no Agray area@ exists in which D can logically argue that he misunderstood V=s actions. if D is lying, then he has given up the right to the defense if D is lying, then likelihood increases that he is guilty and decreases that jury can make the right decision. BAD:not logically inevitable that one of the 2 stories must be completely true. Burden can be placed on the D to prove consent by the V through eliminating lack of consent as an element of the offense.(Camara) Minority approaches (3) Same rule, only the required mental state is recklessness - most of the recent American cases have switched to this standard if standard is only negligence, then consent must be reasonable but if standard is recklessness, must have honest belief and not be aware and should not be aware of risk that belief is unreasonable. Actual knowledge that the sex is non-consensual is required. Regina v Morgan: D=s honest belief that sex was consensual would be enough to exculpate them f/the crime, since knowledge is required f/circumstances of the crime & nonconsent is element of the crime. Strict liability: honest & reasonable mistake is not a defense. Ascolillo. (Mass) Which approach is better? Majority rule (Negligence) is better Rape is different then larceny b/c owner is always home harm much greater - you can give back something you=ve stolen. A person who has inherent capacity to act reasonably but fails to has made a blameworthy choice that is punishable. F/example, a person whose unreasonable actions lead to death are punished f/manslaughter. Gender communication Gap is a reason why negligence standard should be imposed. To say it isn=t a reason is just to automatically take the male perspective. If the ambiguity in social convention is what the problem is, then the courts should seek to change that convention through imposing bright line rules. AActual knowledge@ rule will make it easier f/rapists to get off b/c subjective standard is harder to prove. Establishing a rule defining non-consensual intercourse on the basis of the subjective view of the aggressive male is wrong b/c after a woman says Ano@ to someone, any further action should be construed as being objectively unwarranted. C v Sherry. Recklessness is better Developments in the requirements f/actus reus of rape increase the risk that the jury could convict D in cases where lack of consent is ambiguous at best. Recklessness standard is necessary to counteract this risk b/c it insists that Ds have actual knowledge that there was a risk that V was not consenting. Actual knowledge is better Actual knowledge is req=ed in other mistake of fact cases - f/example, in larceny, mistake as to consent of the owner is an acceptable defense. The requirement of some subjective awareness of wrongdoing flows f/the essential character of conviction f/serious crimes in general REMEMBER: STANDARD REJECTED IN C V SHERRY.. B/c the Agender gap@ exists b/w men & women in how they express consent to sexual acts, this is necessary to insure that those w/innocent minds are not punished. Rape happens - but two wrongs don=t make a right. If a women is raped, but not by a man intending to rape, why punish him? Sending a Asymbolic message@ in order to deter future Amisunderstandings@ violates principle that CJS should strive to do justice in every case. SL standard is better. C v Ascolillo. In harmony w/rule that a D in a statutory rape case isn=t entitled to an instruction that a reasonable mistake as to V=s age is a defense. easy for D to find out if there is really consent, so seems as if he is getting benefit of sex by placing risk on woman raped, she should not be the only one responsible for making sure it is consensual... BUT: Weight of American authority is against SL rule. SEQ Outline_0 \* ROMAN \nIV. Actus Reus: RAPEtc \l1 "IV. Actus Reus: RAPE 3 kinds of statutes defining Rape: Type I: Sexual Intercourse + nonconsent + forcible compulsion Traditionally requires resistence & force/threat of force Type II: Intercourse + forcible compulsion Depends on how you define forcible compulsion: Type III: Intercourse + nonconsent Very rare - usually like MTS, even thought that was a (ii) statute. SEQ Outline_1 \* ALPHABETIC \nB. Nonconsent & resistancetc \l2 " B. Nonconsent & resistance Old Rule: V must resist Ato the utmost@ or else consent is assumed. Maj Rule: To prove nonconsent, most courts require reasonable resistance: either actual resistence no resistance b/c of a reasonable fear of death/serious bodily harm to herself or others or a threat of immediate kidnaping a jury decides the reasonableness of fear/resistance Examples FEAR REASONABLE: S v Rusk: D takes car keys f/V, looks funny at V, doesn=t answer when V asks if he=s going to kill her, and Alightly chokes her@. D asks her f/phone # afterwards. Up to jury to decide. dissent: V must resist unless D has objectively manifest his intent to use physical force to accomplish his purpose FEAR NOT REASONABLE: P v Warren: D puts hand on shoulder of women in isolated trail, tells her that his girlfriend doesn=t meet needs & then picked her up and carried her into woods. V -5=2, 100 pounds; D - 6=3@, 185. V didn=t scream, ask D to stop, or fight back, so no resistance, no rape. AGeneral fear@ f/past experience not enough: S v Alston, V who used to live w/D who told her he would cut her face, grabbed her arm, and insisted he had Aright@ to sex. SEQ Outline_1 \* ALPHABETIC \nC. Requirement of Actual Force/threat of forcetc \l2 " C. Requirement of Actual Force/threat of force : AWhat is force@? Maj rule: D must use force/threats to overcome the will of the V to resist the sexual intercourse. Force must be Arelated@ to the act of sexual intercourse - S v Alston. Penetration not sufficient: (or pushing legs apart) Aincidental@ force only. S v Alson & C v Berkowitz (dorm room rape w/verbal protests but no force on part of guy). Verbal protests not enough to establish force requirement if no additional force used on Vs beyond sexual act. Alston, Berkowitz. Modern Trend but Min rule: nonconsent of the V enough to establish force requirement MTS: force = any amount of force against another person in the absence of what a reasonable person would believe to be affirmative & freely given permission to the act of sexual penetration Test: could the D reasonably believe that the V had freely given affirmative permission? permission = words or acts demonstrating freely-given authorization in light of all circumstances Ex: MTS: D entered V without her consent but no other force or threat. D convicted b/c act of penetration in circumstances was forcible compulsion. SEQ Outline_1 \* ALPHABETIC \nD. Nonphysical threatstc \l2 " D. Nonphysical threats Maj Rule: generally, nonphysical threats are NOT considered force. The force has to be actual physical compulsion or violence or an immediate threat of violence. ex: S v Thompson: V has sex with D, principal, b/c D threatened to prevent her from graduating f/high school. No rape b/c no force. Min rule: (MTS) forcible compulsion = absence of affirmative & freely given permission MPC: gross sexual imposition conviction allowed where submission is compelled by threat of force or by any threat that would prevent resistance by a woman of ordinary resolution ('213.1(2)) Arguments: Force should be required: W/out Aforce@ requirement, serious slippery slope problem exists - create the potential f/host of threats in support of accusations of rape or attempted rape Would give jurors almost unlimited discretion to determine which acts, threats or promises will turn sex into rape - creates great uncertainty in the law as to what is or isn=t rape. Force should not be required: Under MTS, it is a consent issue - if coercion occurs, then consent is not freely given and rape has occurred. Even under traditional Aforce@ requirement this should still be rape b/c the male is still attempted coercion, only he=s using the only tools at his disposal. These tools may be (arguably) less effective then using physical force, but that shouldn=t matter - we don=t give leniency to weakling or incompetent rapists - we shouldn=t give leniency to these rapists either. Freedom of sexual choice rather the physical protection is the primary value served by criminalization of rape. Threats of nonphysical harm are just as harmful to this freedom then physical threats, so rape law should protect women from it. assumes that verbal resistance cannot be clear enough Estrich Critique: male notion of force as involving a fight, not like woman=s, thus should use reas. womans standard, otherwise, men free to intimidate response by Berger: don=t want law to patronize women, and rape = misnomer if body lang. expresses ambiguity. Should we use a Aphysical force@ requirement or a Anonconsent@ requirement to define rape? Both have their problems under traditional conceptions. Proving >nonconsent= has been problematic, because it traditionally has required proof of Areasonable resistance@ on the part of the V. Women who don=t offer adequate resistance to the D must show more then the mere fact that they were afraid - they must show that this fear was Areasonable.@ The refusal to recognize any fear as a basis f/lack of resistance creates 4 problems: defining the standard of reasonableness: usually a Amale-dominated@ standard that doesn=t take into account the woman=s point of view. The fact that whatever the standard, if the woman=s fear doesn=t reach it, it would allow Ds who know that V is afraid & submitting b/c of fear to legally force them to have sex. ex: S v Rusk, P v Warren. The fact that resistance is an invitation to danger or serious bodily harm - requiring resistance as a rule further endangers women in rape situations. Standard puts the V on trial by focusing on the woman=s character & actions rather than the male=s actions. Finally, it=s wrong to create a rule that excuses the assailant any time his victim fails to protect herself adequately - resistance is merely evidence that the man compelled women to submit, not a necessary condition thereof. AForce@ requirement traditionally requires an act of force apart f/the sexual act or threat of immediate harm. This fails to adequately protect women from rape b/c it allows men to have sex w/women w/out an affirmative sign of consent from them and even in the face of pleas to stop. It reflects the fact that there is an accepted level of forcible coercion by men in this society which allows men to use physical intimidation to compel women to agree to sex that doesn=t include such overt acts of force. This standard ensures male freedom to take advantage of women who feel too powerless, vulnerable, or afraid of the consequences to fight back. This standard effectively blames the women for the male=s decision to exploit their weaknesses. The Aforce@& Areasonable fear@ aren=t completely without justification - they were created due to fears of prosecuting men who did not intend to rape women. Without objective standards, women would be able to simply say AI was scared@ afterwards, transforming Aconsent or mere unwillingness into submission by force,@ which would allow the law to prosecute mere Apressure@ to have intercourse as rape. Rusk dissent. Reveals a concern that without objective standards, regretful women would be able to turn Aseducers@ into Arapists@ - use rape as a weapon against men who did no wrong, Also a fear that Airrational@ women Ascared silent@ by ungrounded fears would allow insensitive men to have sex with them & then have them prosecuted f/rape. Force requirement better: Having a Aforce@ requirement would take the emphasis away from the V=s actions and focus on D=s actions alone. However, The worth of this standard depends on how you define Aforce.@ On the one hand, old way is very flawed, but on the other, getting rid of objective requirement would allow men to be punished f/an act they didn=t intend. This tension reflects the fact that women don=t always say what they mean and men don=t always listen to what they say - both can be honest about what happened & have 2 different interpretations of the events. Defining force as MTS did wouldn=t require resistence by woman or overt physical force by the man: defines Aforce@ as any act of sexual penetration engaged in by the D w/out the affirmative & freely-given permission of the V. Under this standard, V isn=t required to say or do anything - her lack of affirmative consent will result in the rape.--Type III GOOD: gets rid of resistance requirement Protects women f/ male coercion better then old conception of force b/c doesn=t require overt acts by man - just the word Ano@ by the woman still allowing for an objective standard by asking f/affirmative consent by woman. BAD: turns Aforce@ requirement into Anonconsent@ requirement & focuses even more heavily on woman=s character & actions rather then the man=s. Extending rape law to Adefend@ passive & powerless women who are Avictims of life@ is an abuse of rape law b/c it Apatronizes@ women - it extends special treatment to this type of person simply b/c they are women, implying that women need more protection from men b/c they=re somehow weaker BUT: This isn=t a patronizing law at all; it=s just like the protection of indecisive patients. SEQ Outline_0 \* ROMAN \nV. Statutory Rapetc \l1 "V. Statutory Rape Common Law: All states provide that intercourse by a male with an underage female constitutes rape. Mens Rea: Strict Liability Actus Reus=sex with minor--neither force nor lack of consent is an element of the offense. non-consent: rationale is that an minor is too young to validly consent. Age of consent varies by jurisdiction Mistake of Fact generally not a defense, b/c stat. rape is strict liability Ex.: People v. Olsen: strong public policy to protect children under 14 yrs. No defense of reas. mistake of age, when D=s had sex with minor (forcibly?) in her trailer. Garnett: most jurisdictions do not allow any defense of mistake of age. Attempt SEQ Outline_0 \* ROMAN \r 1I. Attempt: General Principles:tc \l1 "I. Attempt: General Principles: Rationale: punish the guilty minded who would have or will commit crimes gives police a tool to intervene before social harm occurs Punishment: Was a misdemeanor, now statutory, mostly felony (1/2 as severely as completed offense C except drug offenses punished fully) Merger Doctrine: Under MPC and CL: a criminal attempt merges into the target offense if successfully completed C can only be guilty of one or the other (unlike conspiracy at CL) NOTE: ASSAULT = Attempted Battery SEQ Outline_0 \* ROMAN \nII. Attempt: Mens Reatc \l1 "II. Attempt: Mens Rea Rules : 3 CL Maj Rule: MR f/ attempt is Purpose (specific intent to carry out the offense) even when a lesser MR would suffice f/conviction of completed offense NY Penal Law'110:w/ intent to commit the crime, engages in conduct which tends to affect commission of said crime. Cal Penal Code '664:attempts but fails or is intercepted, punished Illinois: w/ intent to commit offense, does anything = substantial step toward commission of the offense. Kraft: D shoots at people, but doesn=t kill. MR f/murder recklessness+, but this is only attempt. Says he only intended to scare them into shooting him - didn=t specifically intend to kill; Reversed b/c specific intent to kill wasn=t established. Bomber: aim is to blow up plane, but knows that if he puts bomb in will probably kill pilot. Plan thwarted, so only attempt conviction available - since specific intention isn=t to kill, no attempt liability. MPC'5.01: if, acting with the kind of culpability otherwise req=ed f/commission of the crime, he: (Completed attempts) Conduct crime : Purposely engages in conduct which would constitute a crime if attend. circs were as he believed them to be i.e. rape: conduct must be purposely tries to rape, and attend circ = at least neglig. as to non-consent Aas actor believes them to be@ gets risk of legal impossibility def Result crimes: Purposely or knowingly does or omits to do anything that will cause the result (so no reckless or negligent mens rea for result crimes) (Incompleted attempts) Purposely does/omits to do anything which constitutes a substantial step under the circumstances as he believes them to be in the course of conduct planned to culminate in his commission of the crime. MPC commentary to 5.01: a person can be guilty of attempted statutory rape without knowledge that the girl is a minor b/c the substantive crime doesn=t require culpability for that particular circumstance MPC Absurdity of Mode (e.g. voodoo doll, or spit to give AIDS) gives reason to doubt mens rea, but prosec. can still prove attempt to kill w/ other facts that corroborate purpose. Minority: MR is the culpability required f/the actual offense only Thomas: D shot at guy believing him to be fleeing rapist. Attempted reckless manslaughter. Mens Rea of recklessness enough. Dunne: attempted statutory rape, used strict liability, did not require that D had knowledge of age of P Arguments Pro and Con Specific Intent Req=t Specific intent BAD: Purpose of traditional requirement of intent is to identify cases where conduct was dangerous - knowledge, recklessness sufficient b/c the necessary potential for future harm is present in those cases as well. Imposing requirement would require a jury to be burdened w/the confusing & often unknowable state of the accused=s mind This would result in an inability to prosecute people who knowingly commit conditions that result in death simply b/c their plans were thwarted. ex: person who plants a bomb on a plane to hurt airline but not pilot, even though he knows pilot will probably die, it=s not an attempt. Specific intent GOOD: Leg manifested desire to treat intent & other mental states differently when imposing criminal liability f/conduct when it set out separate statutory definitions f/mental states in the criminal code We can consider an act as sufficiently dangerous only if it is either accompanied by intent or followed by a harmful result If you simply tracked the requ=d mental states for the completed crime, then you could prosecute reckless drivers f/attempted murder Under Fletcher=s analysis, D should not be punished unless his specific intent to kill b/c his knowledge of the likelihood of another=s death is irrelevant to his choice to take action. D would change his conduct to make it more effective if he thought that his actions would not reach his specific goal, but would not change his conduct to make it more effective if he thought he wouldn=t end up killing the potential Vs. Thus, D is really not trying to kill anyone. NOT RECKLESSNESS: conscious disregard (recklessness) does not imply that one chooses the result in the same way one chooses a result he knows to be a practical certainty (knowledge). SEQ Outline_0 \* ROMAN \nIII. Attempt and Preparation for the Crime: Actus Reustc \l1 "III. Attempt and Preparation for the Crime: Actus Reus Old rule: ALast Step@ Test: D has to complete the attempt : has to do everything w/in his power to complete the crime, and his behavior cannot be too remote to the crime NOT ENOUGH PREP: US v Rizzo: Ds driving around looking f/ specific V to rob. Test: did acts come so near commission of robbery that there was reasonable likelihood of accomplishment but for the interference? Ortiz: D drove w/loaded shotgun to V=s neighborhood, but didn=t find V. No conviction under Rizzo standard. TOO REMOTE: Hope v Brown: D put illegal tags on meat & left them to be put up. The preparation was too remote f/ actual commission of the crime. BUT: Dir of Public Prosecutions v Stonehouse: D takes insurance out on life, & fakes death, leaving wife to get money. Caught later before his wife collected the money. Conviction upheld. Arguments Pro and Con: Pro: allow folks every opportunity to stop what they=re doing , if no crime then they should be able to stop without criminal liability Con:but limits cops ability to intervene, should not have to wait until after trigger is pulled. Compromise: could just allow for abandonment up to last step, but prosecute after preparation with no abandonment See Next ' on Abandonment/when to impose criminality NEWER COMMON LAW RULE: Proximity and Preparation @Beyond preparation@ Staples: D rents room, gets equip and starts drilling holes in bank ceiling C guilty, no abandonment defense. Physical Proximity to completion or to crime(to some extent) necessary: Peaslee: guy arranges combustibles in warehouse to burn but does not light, tries to get kid to do it, but is turned down, and he eventually abandons the project, held that he did not go far enough for attempt. Dangerously close to completion: Rizzo Test (supra) MPC (used by 2 states & 2/3 of federal circuits): Rule: D must purposely, under circumstances as D believes them to be, take a substantial step in course of conduct planned to culminate in commission of the crime (Mandujano) substantial step = strongly corroborative of the actor=s criminal purpose : lying in wait, following, or looking for intended victim enticing/seeking to entice victim to go to place planned reconnoitering the place planned unlawful entry into place planned possession of materials to be employed, specially designed f/ such unlawful use or which can serve no lawful purpose possession, collection or fabrication of materials to be employed at or near place planned, where such possession serves no lawful purpose under circumstances MPC places an early threshold f/attempt but compromises by allowing Abandonment is an affirmative defense if complete & voluntary renunciation of criminal purpose unless: Examples : YES substantial step US v Jackson: Ds made plan to rob bank, put supplies in car, drove there, cased it, decided to reschedule. Came back w/supplies, cased it & were arrested. Several steps taken US v Schoof: D stole microfilm, called Soviets 3 times, began driving to D.C., turned around & then asked friend to loan him his car NO substantial step US v Buffington: Ds cased bank (drove by twice). Got out w/hidden weapons & watched it. One wrapped scarf around face. Didn=t take any steps toward the bank or show any weapons - no indication that they were about to enter. US v Joyce: D flew very far w/bag of $ to buy cocaine f/narc. When narc wouldn=t show him cocaine, D said he wouldn=t deal w/narc anymore and left. No attempt b/c D abandoned the crime b/f substantial step of producing $. Motive f/refusing to take substantial step irrelevant. SEQ Outline_0 \* ROMAN \nIV. Abandonmenttc \l1 "IV. Abandonment Traditional (prob Majority) rule: abandonment is no defense, so set the threshold of criminality late to make up for it. Some jurisdictions have changed to allow a abandonment defense MPC: abandonment is an affirmative defense if the abandonment was voluntary and complete renunciation of his criminal purpose. NO defense where abandonment is motivated either by circumstances not present/known at beginning of conduct which either increase probability of detection or apprehension make accomplishment of purpose more difficult OR motivated by decision to postpone criminal conduct until a more advantageous time or victim Examples: Abandonment Not Allowed P v Johnson: D pulled out gun at gas station & demanded $, but left when all V had was $50. P v McNeal (Mich): D kidnaped woman at knifepoint back to house but didn=t rape her when she talked him out of it. No abandonment b/c girl=s unexpected resist. made it not voluntary BUT: in Ross v S (Miss): same facts as McNeal: ct held that D chose out of his own free will to abandon attempt Arguments: when to impose criminality? Wait until completed attempt: Would allow for changes of heart by would-be criminals: criminalizing too early is bad b/c person made liable when its never sure she would have taken remaining to complete the crime people caught after repenting could be held liable even though they did everything w/in power to prevent any actual harm would have a reverse deterrent effect b/c once a D passes a certain point, no reason not to complete the crime criminals w/out criminal design might be arrested & punished for innocent yet suspicious looking conduct Impose criminality much earlier allows for better law enforcement - impossible to prevent completed attempts (BUT, police have other laws to use, like procedurally can stop and detain suspect in circs short of those under arrest for probable cause under 4th amendment, &substantively have made crime to loiter or prowl in circs giving rise to alarm that crime might be committed & stalking laws.) no need for the requirement of proximity of attempt to completed crime where the accused=s intent is clear - only reason we want proximity is to prove intent the fact that further major steps must be taken b/4 completion does not preclude a finding that the steps already undertaken are substantial. MPC better b/c shifts focus to what the actor already has done, instead of what remains to be done. SEQ Outline_0 \* ROMAN \nV. Solicitationtc \l1 "V. Solicitation Solicitation as a crime in itself, not attempt MPC : Solicitation = acting w/purpose of promoting or facilitating a crimes=s commission, person intentionally invites, requests, commands, or encourages another person to engage in specific conduct establishing person=s complicity. immaterial if D fails to communicate w/person he solicits to commit a crime if conduct was designed to effect such commission. Many states have patterned solicitation statutes after MPC. Solicitation as an attempt If solicitation isn=t criminalized by a statute, then the question is whether solicitation can be considered a Asubstantial step@ & thus expose D to attempt liability f/solicited crime. Maj rule: NO : mere solicitation, w/out an act directly toward the commission of the intended crime, is NOT a substantial step - no liability w/out other actions. 1 min view agrees, arguing solicitation NOT an attempt b/c no matter what acts the solicitor does, it is not his purpose to commit the offense personally. ex: S v Davis: paid undercover officer $ to kill husband Min rule: YES : can be a substantial step under certain circumstances US v Church: paid D money, gave him maps, photos, information, approved of weapon, requested where she be shot. Sanctions f/solicitation: CL: solicitation = misdemeanor even if it was soliciting a felony MPC: offense = equal grade of target offense unless its a felony of the first degree Merger: crime of solicitation merges into the target offense if the offense is attempted or undertaken - can=t be convicted of both. Arguments re: distinguishing attempts f/completed crimes There IS a difference: Gratifies a natural public feeling to choose out for punishment the one who actually has caused great harm Attempts do not arouse the community=s demand f/punishment as much as when serious harm has occurred Punishment is like compensation : if person has done the harm, then he must pay for it - if he hasn=t, he should have to pay less Person completing the crime has derived greater benefit from his crimes then those who merely attempt it, so a greater punishment is needed to restore a just Abalance@ Resentment felt by a victim actually injured is normally much greater then that felt by an intended victim who has escaped harm. There IS NO DIFFERENCE: Who cares what society Ademands@? Real goal of CJS is to protect people from punishment who, rationally speaking, deserves a less severe penalty Retributive theory: punishments proportioned to the allegedly evil intentions of criminals : no difference b/w the attempter and the criminal who carries out the offense in their wickedness, only their skill. Deterrence theory: the threat of punishment for attempts cannot add significantly to the net deterrent efficacy of the sanction threatened f/the substantive offense that is the actor=s object, so concerns for economizing the use of the heaviest sanctions should lead to removing them from certain attempts. MPC Impossibility SEQ Outline_0 \* ROMAN \r 1I. Impossibility: Maj View : MPC: 5.01 tc \l1 "I. Impossibility: Maj View : MPC: 5.01  Rule: focuses on D=s mind: a person is guilty of an attempt if his conduct would constitute the crime if the attendant circumstances were as he believes them to be. Tries to eliminate impossibility defense completely VOODOO: If the particular conduct charged to constitute attempt is so inherently unlikely to result in the commission of a crime that neither conduct nor actor presents a public danger warranting grading of such an offence, the Ct will grant its power to lower degree or dismiss (in extreme cases) Only legal impossibility defense allowed is Apure@ legal impossibility: when the intended acts, even if the circumstances were as actor thought they were, would not amount to a crime, then no attempt. Or, if law changed right when you commit the crime, and would not have been illegal otherwise. Examples:CULPABLE: P v Dlugash: D shot V in head after V already dead. D guilty of attempted murder b/c he had intent to commit the crime & would have committed it had the circumstances been as he believed them to be. US v Thomas: Ds rape woman but woman already dead. Prosecuted f/ attempt to rape. No requirement that the woman be alive f/attempt to rape conviction. SEQ Outline_0 \* ROMAN \nII. Impossibility: Min view: CL:tc \l1 "II. Impossibility: Min view: CL: Rule: factual impossibility is not a defense, but legal impossibility can be. Factual: when extraneous circumstances unknown to the actor or beyond his control prevent consummation of the intended crime Legal: when the intended acts, even if completed, would not amount to a crime Examples Factual impossibility: Pickpocket cases: D sticks hand in pocket to steal but nothing there S v Mitchel: D shoots into room V usually sleeps but V isn=t there, held liable for attempted murder S v Smith: D spits at officer trying to give V HIV, but it is impossible to give HIV to people by spitting at them, still held for attempted murder Legal impossibility: P v Jaffe: D buys cloth thinking its stolen cloth but it wasn=t stolen S v Guffy: D shoots stuffed dear thinking its real & out of season; no crime to take a stuffed dear S v Taylor: D tries to bribe person thinking guy is juror but person was not a juror US v. Berrigan: Priest smuggling letter out of prison, in violation of a fed. statute, except he unknowingly has wardens permission, thus, he was not committing a crime. SEQ Outline_0 \* ROMAN \nIII. Which approach is better?tc \l1 "III. Which approach is better? MPC way is good Traditional way is bad: doesn=t make any sense - except f/when the status of one of the circumstances is legal in nature (Astolen@ cloth) there is no way to make a principled distinction b/w cases. Example: guy shooting into empty house vs. a guy trying to bribe a person who isn=t a juror. isn=t workable b/c it presupposes an agreed-upon definition of the relevant act, which is impossible. Choosing the appropriate description of a person=s will always be an arbitrary business b/c there is no principled basis to choose. Subjective approach to an actor=s culpability f/attempts is better. If an actor intends to commit a crime & acts on that intent then he should be liable f/the attempt b/c he=s just as culpable as someone who is successful. He=s just as dangerous as the actor who succeeds in bringing about the harm or even more dangerous. Actions alone cannot be the basis f/proof of intent to commit a crime, b/c people frequently have intentions which result in actions which are not effective in reaching their goals. There has to be subjective analysis of a D=s state of mind b/c otherwise, wrongdoers would escape punishment simply on the basis of ineffectiveness. MPC subjective approach is BAD: Intent must be proven rather then supposed. We increase the risk of mistaken conclusions regarding Ds= intent when no objective acts of the D are required to mark the D=s conduct as criminal in nature. US v Oviedo. While an innocent mind can exculpate, a criminal mind cannot inculpate - punishing people for their thoughts alone goes against principles of our CJS Being suspected of dangerous propensities doesn=t justify the state=s incursions into our private sphere - a minimal demand is that the d=s dangerousness express itself in an objectively dangerous act BUT that depends on definition of Actus reus: if it is merely Aany external state of affairs that testifies to execution of a criminal plan in the external world@ then MPC is satisfied, since under this definition there=s no requirement that the external state constitute a violation of the statutory prohibition. Response: another definition of AR is Aan act that displays the characteristics that make the act punishable.@ W/the former definition, Ds could be convicted of a general criminal intent apart f/the principle offense. Need this more restrictive definition of AR in order for AR to fulfill its role in CJS. : 1.to preclude punishments f/thoughts alone, 2.provide protection f/arbitrary punishment Problem of legality b/c subjective approach disregards the actus reus requirement. BUT if principle of legality is merely that cts should adhere to legislative definitions of crime then this problem is solved if legislature enacts MPC approach Response: Principle of legality also has to do w/forewarning & vagueness: problem w/MPC is that it greatly increases the risk of a D w/an innocent mind being convicted of a criminal intent w/out b/c no objectively criminal act is required. It is too dangerous to permit juries to speculate on a D=s intent in the absence of actions strongly evidencing intent. Proof of state of mind where there are only ambiguous acts to support the inference is unreliable. Ex: MPC requires substantial step = strongly corroborative of crim purpose - same concern exists w/impossibility defense. Other Problem w/the MPC : It allows convictions f/attempts that are clearly impossible on the facts b/c it only looks at the subjective belief present in the D. Has an exception that if the conduct is so inherently unlikely to result in the commission of a crime that neither conduct or the actor presents a public danger, ct has power to dismiss prosecution, but that just leaves it to the judge=s discretion. Ex: weirdos w/voodoo dolls. GOOD: Ds having criminal intent who take actions furthering intent should be punished b/c they=re morally culpable & threats BAD: better rule: impossibility is a defense if the impossibility would have been clearly evident to a person of normal understanding. Minn Crim Code. fact that people are threats to society based on judgement as to their moral character has never been proper basis f/criminal conviction! Fletcher Article: proposes 2 tests: says legal/factual imposs. distinction is stupid b/c can argue facts to fit in either category, and give defense when you feel like it. Lexcially ordered C1st TEST = Dangerousness: Act must be dangerous to others b/f State attempts to prove intent. Proving intent should be the second step in a 2 part process - the first being proof on an aspect of the actor=s conduct that represents an external intrusion against the rights of others. GOOD: Needs to be a check on State=s ability to delve into a person=s private life & personal thoughts, b/c the law should primarily be concerned with external relations b/w actors, not their inner states. The kinds of evidence used to prove intent are highly intrusive If courts insist on an objectively criminal act they will make fewer factual errors BAD: Standard is unworkable b/c it presupposes some theory of dangerous-type acts, yet it=s impossible to distinguish b/w dangerous & non-dangerous types of acts If you extend the relevant focus to include preparations, many of the Anon-dangerous acts@ can be seen as dangerous, and vice versa. 2nd Counterfactual test: If D would have changed his course of conduct had he known that his attempt would not succeed, then he is guilty of the attempt. C attempt to flush out the actor=s specific intent C purpose of this order is to protect indiv. liberty by requiring evidence of dangerous act b/4 investigating intent. Justification: Only those beliefs which cause an actor to act in a certain way should be taken into account when culpability is determined. If an actor wouldn=t change his course of conduct if he knew that his actions would fail to reach criminal result, then his belief about the causal effectiveness of what he was doing didn=t matter to him, and it wouldn=t be appropriate to say that he was attempting to kill anyone. Likewise, an actor who acts w/out the knowledge that a certain circumstance exists shouldn=t be excused f/his actions if he would have acted anyway had he known of the circumstance. LIABLE: D firing a shot into empty home, or a D putting poison into a liquid that the V doesn=t drink, or a D putting his hand into an empty pocket, or D sticking pins into doll to kill thru voodoo. NOT LIABLE: D getting goods cheaply that she suspects are stolen. Criticism:dangerous standard too vague and 2nd step may cut intent too thin under Fletcher: d not guilty of stat. rape if has sex w/ girl he believes is 14, but really is 18, if conscious purpose is sex not pedophilia if you would not have sex if he knew she was 18, then guilty b/c the specific intent is underage lovin Under MPC: could be guilty b/c if attend circs as he believed them to be... Accomplice Liability SEQ Outline_0 \* ROMAN \r 1I. GENERAL ACCOMPLICE LIABILITYtc \l1 "I. GENERAL ACCOMPLICE LIABILITY: 1.To be held criminally liable, D must -Intend that the crime be committed -assist in the commission of the crime 2.Accomplices charged w/underlying substantive offense - same as principle - complicity is not a separate offense. 3.Modern Complicity statutes: -Accessories after the fact is a separate offense then other Acc liabilities -Accessories can be punished before Principal (and without principal)l -Accomplices get same punishment as principals (judge gets discretion though) 4.At Old Common Law: Principal in 1st Degree (immediate perp); Princ. of 2nd degree (constructively present); Access. B/4 the Fact (intent. assists commission by soliciting or providing tools, etc.); Access. after the Fact (know. assists felon to avoid arrest) 5.At OLD Common Law: can=t convict accomplices until perpetrator convicted SEQ Outline_0 \* ROMAN \nII. Accomplice: Mens Reatc \l1 "II. Accomplice: Mens Rea as to conduct (different f/ result crimes!) Maj rule : purpose : so accomplices mens rea is higher than that of principal Rules: Accomplice must have the purpose of promoting or facilitating the commission of the offense. MPC'2.06 WHEN Ds HAVE COMMON PLAN: D is not accomplice when a wholly different crime has been committed involving conduct not within the conscious objective of the accomplice Examples NO liability Wilson v P: The set up : D gets P to agree to a robbery in order to get him in trouble. When P is inside, D calls the police. Gladstone: Narc asks D f/pot, but D tells narc to go to P=s house if he wants pot. No evidence of prior contact b/w D and P to suggest that D encouraged or induced P to sell the pot. No Common goal: Regina v Anderson: D agreed to beat up V, but didn=t know that the P had a knife. P kills V, act outside of common design with D. YES liability Common Goal: Regina v Bainbridge: D gives equipment to P thinking that P will use it to cut up stolen goods. P breaks into bank w/it. If D solicits an end, then he is responsible f/whatever means may be employed in order to reach it. MPC' 2.06 Minority rules: Knowledge required f/ just serious offenses - purpose f/minor crimes YES UsvFountain D, inmate, gives a knife to P, another inmate who is trying to escape. P kills guards with the knife. D held liable b/c he knew that P would attack the guards. D sells gun to P knowing that P will use it in a crime Lauria: Knows that hos use his answering service, would be guilty, but is a misdemeanor and he had no special interest in promoting the prostitution NO: D sells dress to prostitute knowing that she will wear it to commit prostitution. Negligence only: accomplices liable f/ Anatural and probable consequences@ - any reasonably forseeable offense committed by P. YES: P v Luparello: D tells friends to get information Aat any cost@ from V. Friends get gun & knife w/out D & kill V. P v Brigham: D & P hunt f/A to kill A. P decides V is A, and D begs P not to kill V. D liable f/murder b/c he knew of P=s stubborn nature, so it was likely that once started, P would kill someone besides A. Which is better? Purpose better: Knowledge standard would impose severe liability on blameless actors, such as the seller of merchandise that will later be used in a crime, or a farm boy clearing the ground for setting up a still Would be very inconvenient to legitimate trade to require a merchant to concern himself w/the business of his customers Right to be left alone: People are entitled to carry on their lives w/out having to take it upon themselves to stop the execution of a crime Knowledge standard bad b/c you can=t really determine which crimes are major and which are minor There=s a problem of legality here - no warning of which is Amajor@ crime until after a court decides Knowledge better: Conduct which knowingly facilitates crimes is the proper object of preventive effort by the penal law Such a law would help deter crime by making its execution harder to affect So long as the behavior substantially facilitates the crime, this qualification will rule out those activities which should not be punished. Merchant who knowingly assists a crime is morally the same as the traditional accessory b/f the fact Reasonably forseeable is BAD: leaves the D at the mercy of the principal - even if they have an agreement, the D will still be held liable f/P=s decisions FM doctrine rejected this Aproximate cause@ approach by insisting on an agency theory Measuring D=s guilt by MR of his accomplice is arbitrary & irrational. Would render the D liable f/a higher crime than the P who actually commits it (ex of P who is guilty of manslaughter & the D who is guilty of murder). Completely out of sync with the D=s mens rea BUT: under purpose/knowledge test, the D will completely get off - either way, the liability is out of sync with the D=s MR. BUT there is a difference b/w risking causing death and risking that murder will be committed SEQ Outline_0 \* ROMAN \nIII. Mens Rea as to attendant circumstancestc \l1 "III. Mens Rea as to attendant circumstances Maj Rule: D must purposely engage in the conduct (or act w/culpable conduct f/result), but it is indeterminate whether or not D needs to have purpose w/regard to the circumstances. MPC'2.06 Johnson v Youden: Ds help P sell a house at an unlawful price, violating SL statute that didn=t require that Ps know price was too high. Ds not liable b/c they didn=t know of all the facts constituting the offense Should accomplice=s MR as to circumstances be same f/offense or still be purposely? Same as offense: This would be like treatment of MR to circumstance as in attempt crimes Under Amalum en se@ justification f/SL crimes, accomplice should also be liable - he knew he was already doing a bad thing - so who cares if it=s actually worse then it first appears? Purposely/knowingly: Accomplices are in a much worse position then Ps to discover the conditions in question. SL crimes like statutory rape work as deterrents b/c they stop people when there=s any chance of the circumstance existing - but here, no deterrent effect b/c accomplices don=t even get to evaluate the chance. SL regulatory regimes exist to place liability on the actors that can best prevent the harm (drug co case); justification may be absent in the case of accomplices, who may be in no better position to prevent harm than others. SEQ Outline_0 \* ROMAN \nIV. Mens Rea to Resulttc \l1 "IV. Mens Rea to Result Maj Rule: a purpose to promote reckless/negligent conduct can give rise to liability. MPC: tracks the offense : when causing particular result is element, accomplice in the conduct causing the result is liable f/the offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. Thus, if D intentionally promotes the negligent conduct of P but not the actual result, he is liable f/the unintentional harms caused by the P. '2.06(4) 2 problems: What conduct did D actually encourage? Often unclear in statutes. Implies that D doesn=t have to intentionally encourage the actual negligent conduct. Broad vs. narrow Framing issue MPC: Aaccomplice in conduct causing result@. NY: Aintentionally aids P to engage in such conduct@ Abbott: D did not actually encourage the negligent conduct which resulted in death : encouraged the drag race, but not the actual going over the yellow line. Should there be accomplice liability f/ unintentional harms? Wheeler: Her boyfriend got in fight with V and with her encouragement stabbed him, guilty of aiding and abetting crim. neglig. homicide though she did not intend for him to die. Examples:LIABLE: S v McVay: D, steamship official, ordered Ps to fire boilers even though big chance that they would blow up. Ps guilty of unintentional homicide (manslaughter). D guilty too b/c he ordered Ps to do it. Tracked under MPC 2.06(2) P v Abbott: D drag races w/P. During race, P crosses the double line during the race & kills another. P charged w/negligent homicide. D guilty b/c he encouraged activity & his MR was criminally negligent Minority rules: D must have actual intent to reach the result D must act in furtherance of some common design or purpose w/P NO LIABILITY: S v Ayers: D sells handgun to 16 yr old who later accidentally kills with it. D wasn=t near killing, had no contact w/kid after selling him gun. YES LIABILITY: S v Travis: D lets friend ride motorcycle recklessly when friend never drove it b/4. Drove it in area w/kids and killed one. D assented to or lent countenance & approval to criminal act. Which is better? Intent to cause the result Negligence standard impossible: Impossible f/ D to facilitate an act of another person when the other doesn=t even mean to do the act himself. Impossible f/ D to intend to assist another person in unlawful conduct when the person does not know that he is engaging in that conduct. Track the offense That argument assumes that the MR has to be intent. W/ result crimes, the question of MR turns on the degree of likelihood that death will follow from the conduct in question. Since this knowledge is available to all actors, not just the ones who actually commit the conduct, no reason to differentiate b/w actors. The problems in conduct crimes necessitating the standard of purpose are absent in those of result b/c the question is not whether another person will later make a choice to act in a certain way, but whether certain kind of conduct will result in death or not. If you use Aintent@ standard f/result crimes, no real basis f/determining which conduct or which result the D intended, since you can always slice up the conduct enough to separate the D f/the result. Allows the State to obtain the same conviction easier, since D could be prosecuted f/manslaughter under a proximate cause theory Not holding D liable would create an asymmetry in the law since D would be directly liable under prox cause theory. SEQ Outline_0 \* ROMAN \nV. Actus Reus: ATTEMPTtc \l1 "V. Actus Reus: ATTEMPT Maj rules Not much action is required. (Wilcox v Jeffery: D attends jazz concert). Accomplice must aid the principle in the offense by rendering it easier to accomplish the end intended by him lower standard then Abut for@ test - applies even if crime would have succeeded w/out the accomplice. ex: if D deprived V of one single chance of life, guilty. Tally. Where an attempt to encourage or aid the D is made but not completed, no liability is imposed. MPC rules When Principal commits the crime or attempts to commit the crime, accomplice liability is imposed whether or not D actually aids or merely attempts to aid the P. When Principal doesn=t attempt the crime, liability is imposed for the attempt of the contemplated crime to any accomplices who attempted to aid, if the accomplice=s acts would have rendered him guilty had the principal committed/attempted the crime. Thus, it=s easier f/the accomplice to be charged w/attempt than the principal, b/c the accomplice doesn=t have to satisfy Asubstantial step@ requirements. Omissions Maj rule: if legal duty to prevent, can be liable for omission Evidence of the presence of the accomplice during the principals=s commission of the act is evidence of his liability when his presence is not accidental. Parents present at crime who fail to take all steps reasonably possible to protect kid show the parent=s consent & contribution to crime. (child abuse cases to convict other parent) MPC Rule: Accomplice liability imposed if D has a legal duty to prevent the offense failed to do so w/the purpose of promoting/facilitating the crime Examples of Maj rule S v Davis: D watches & lays down on bed while his son rapes a family friend. D liable b/c presence facilitated and encouraged son=s actions P v Stanciel: mother lets P Adiscipline@ her child & kills kid. Failure to protect the child = accomplice SEQ Outline_0 \* ROMAN \nVI. Relationship b/w the D and the Ptc \l1 "VI. Relationship b/w the D and the P CL Maj Rule:the act of a feigned accomplice may never be imputed to the targeted D f/ purpose of obtaining a conviction S v Gladstone: can=t use acts of detective S v Hayes: the P goes inside the store w/intent to expose the D MPC rule: D would be charged w/commission of the crime - P=s liability doesn=t matter at all. CL min approach: D still liable b/c the detective=s actions are not illegal merely b/c they are justified under law enforcement reasons - and this justification doesn=t transfer to the accomplice or make him not liable. Unilateral Guilt: Perp. need not be guilty for Accomplice to get nailed: Vade v S: P, the detective, shoots animals while D flies plane. D liable. Argument f/Maj rule: NO Liability Under the rule that accomplices are liable f/ all natural and probable consequences of accomplice=s criminal acts. This leaves great potential f/ abuse in law enforcement methods - D is at the mercy of the detective. Ex: Vade would be liable for as many dead animals as Agent wanted to kill. Why doesn=t the cops justification transfer to the D? To make D liable to P=s actions, there has to be a common motive or design. But if P is just trying to catch D, no such motive exists. The intent and the act must combine, or one of the elements is missing. BUT: the mens rea for the crime is still satisfied, just b/c the D was fortunate enough to have a principal that did not do the actual crime, does not make the D=s culpability any smaller... Look to ENTRAPMENT POSS. SOLUTION: Charge with attempt, via legal imposs. abrogation in MPC, b/c if the attend. circs were as he believed them to be... SEQ Outline_0 \* ROMAN \nVII. Exceptions to derivative liabilitytc \l1 "VII. Exceptions to derivative liability The Principal has no MR but the Accomplice does SEQ Outline_2 \* Arabic \r 11. Innocent agent doctrine: tc \l2 " 1. Innocent agent doctrine:  Rule: A is legally accountable f/the conduct of P when acting w/culpability sufficient f/offense, he causes an innocent or irresponsible person to engage in the conduct - A is treated as if it were his behavior. MPC 2.06(2a). Problems: statute defines crime so that only designated classes can commit them. innocent person in class commits act - no accomplice but innocent agent doctrine can=t be applied b/c A is not w/in class crime is such that only actors can perform them Principal is unconvictable b/c of public policy rationale P v Eberhardt: convicts D of P=s acts through accomplice liability even though P is native american & can=t be prosecuted - separates her inability to be prosecuted w/her culpability Woman tried to get convicted as accomplice in own stat. rape. SEQ Outline_1 \* ALPHABETIC \nB. Abandonment:tc \l2 " B. Abandonment: terminate complicity prior to offense: D has defense if: neutralizes his assistance or gives timely warning to cops, or personally prevent the commission of the offense. SEQ Outline_1 \* ALPHABETIC \nC. Principal has been acquittedtc \l2 " C. Principal has been acquitted of the crimes the accomplice is accused of U.S. v Standefer: allows conviction of D even though P acquitted of crimes - accepts reality that different juries reach different results in similar cases. SEQ Outline_1 \* ALPHABETIC \nD. The Accomplice has greater MR than the Principaltc \l2 " D. The Accomplice has greater MR than the Principal : 2 approaches The 2 are guilty of same crime Only one offense committed in this case: offense by P. Richards. Danger of convicting Ds on basis of MR alone when no greater harm occurred - allows f/speculation on the part of the fact-finder. The accomplice should be guilty according to MR The AR and MR should be separated according to the actors; if the accomplice=s intention was different then the principal=s, then it=s perfectly reasonable to convict the accomplice on her own MR. Richards dissent. If a person can act through an innocent party then no reason why they can=t act through a semi-innocent party. Unreasonable that the partial guilt of the agent should operate as a defense to the instigator. G. Williams. Actions of the principal are not fully volitional in these cases b/c don=t have all the facts - thus, they pose no barrier to causal theory since irrational. Kadish. The Accomplice is victim MPC: person is not an accomplice in an offense committed by another if he is a victim of that offense the offense is so defined that his conduct is inevitably incident to its commission. Thus, if Leg decides to specifically include the Ds as accomplices, they will be liable; otherwise ,they=ll be assumed to not be. Young lady cannot be guilty of accomplice to stat. rape, b/c statute designed to protect not prosecute young women. SEQ Outline_0 \* ROMAN \nVIII. Accomplice Liability : matching the principle=s liabilitytc \l1 "VIII. Accomplice Liability : matching the principle=s liability Rule: the accomplice=s liability is derivative in nature to the principal actor=s liability. Whatever the principal is liable for, the accomplice is, too. Why: when a person intentionally assists another person in an offense, he manifests his willingness to be held accountable f/the conduct of another Accomplice gave up his right to be treated as an individual separate f/the principle when he voluntarily assisted in the commission of a crime. BAD: History has been against the interpretation that accomplices should be punished as severely as principles. While the old Distinctions b/w Principles & Accessories before the fact have been done away with under modern statutes, which punish accomplices the same as principles, the different kinds of accomplices were initially distinguished so that they could be punished less severely than the principles, who were typically put to death. The distinction b/w principals and accomplices was abolished not to insure that accomplices were always punished as severely as principals, but only to allow judges to do so when it was appropriate. Conspiracy SEQ Outline_0 \* ROMAN \r 1I. General Conspiracy:tc \l1 "I. General Conspiracy: SEQ Outline_1 \* ALPHABETIC \r 1A. Merger Doctrine:tc \l2 " A. Merger Doctrine: CL: can charge D w/ completed offence and conspiracy MPC: merger applies for completed offenses, so if D=s planned two bank jobs and completed the first, can get robbery for 1st and conspiracy for the 2nd job. C so only convicted for both if the conspiracy involves a continuing course of conduct. Punishment: CL lesser felony than target offense, MPC: other than 1st degree felony, conspir. graded at same level as completed offense Actus Reus: Just need agreement, and this requires little showing, and usually some overt act Rationale for Conspiracy and Criticisms PRO: group activity is especially dangerous, less opportunity to abandon w/ peer pressure aimed at gangs, the mob, liquor, gambling, and prostit. rings dandy tool for the prosec. to fill our empty jails w/ baaaad people efficient method of getting around separation of crim. labor prob. CON: Justice Jackson in Krulewitch (ho=s go from NY to Fla.): Constitutional probs: 8th amendment, can be punished w/ felony conspiracy for misdemeanor target offense = proportionality problem 5th and 14th amendments: conspiracy hearsay rule allows evidence that violates due process 6th amendment: can be prosecuted out of home state for another guys crime vague, unfair, overused tool of lazy prosecutors that can=t get evidence for a real conviction Prof. Johnson: Don=t need conspiracy now that attempt does not need to be the Alast step@, charge people with attempt, but to go further back before substantial step is unfair Mens Reas Prob: under attempt need strongly corroborative facts to prove intent, Conspiracy you just need a nod (Alvarez) Claire: threshold too low, especially with no merger don=t even need to conspire to do something illegal (by statute) to be guilty of conspiracy See Shaw, where court makes up corruption of public morals charge and charges D with conspiring to do that. Even if criminal, does conspiracy invite a totalitarian gov=t tool to conduct mass trials in the interests of efficiency SEQ Outline_0 \* ROMAN \nII. Incentives to use conspiracy chargestc \l1 "II. Incentives to use conspiracy charges Same culpability f/substantive offense, but w/less to prove: no substantial step req=d Aggravates the degree of crime - conspiracy to commit misdemeanor = felony Accusation will allow hearsay evidence into trial Allows prosecution to pick the place of trial f/any place one of the Cs lived. SEQ Outline_0 \* ROMAN \nIII. Is conspiracy still in effect?tc \l1 "III. Is conspiracy still in effect? Once formed, conspiracy remains until objectives have either been achieved or abandoned. MPC'5.03(7) Abandoned when D nor C does any overt act during applicable period of limits INDIVIDUAL out when person either tells other Cs he=s out tells cops of existence of conspiracy & his participation. Objective of covering up the crime is only considered part of the agreement if there is direct evidence of an express original agreement among Cs to continue to act in concert in order to cover up traces of the crime. Acts of Acovering up@ aren=t themselves proof that concealment is objective of conspiracy SEQ Outline_0 \* ROMAN \nIV. Actus Reustc \l1 "IV. Actus Reus Must prove an agreement b/w the parties (CL min) and an overt act in furtherance of the conspiracy (MPC & maj). NO OVERT ACT REQ=D F/1ST OR 2ND DEGREE FELONIES (MPC'5.03(5)) Agreement: MPC: D must know that a person w/whom he conspires to commit a crime has conspired with another such person(s) to commit the same crime.'5.03(2) ex: Alvarez: D=s knowledge of the essentials of the conspiracy enough. D knew that Acriminal activity was afoot@ but may not have known specifics, drugs, etc. But nodding held as agreement. Interstate: Parallel Action - an agreement can be inferred f/ Ds acting the same way if they knew that the other was acting in such a manner. ex: D writes to 8 Cs asking them to raise prices, while letting them know that each has been requested to do so. Cs all raise prices, but don=t communicate w/each other. Act of raising prices would only work if all 8 did it. RULE BAD: conspiracy is not merely a concurrence of wills but a concurrence resulting f/ agreement - accidental concurrence isn=t enough. Glanville Williams. RULE GOOD: Justification f/ conspiracy laws is that the combination of resources & expertise increases ability & likelihood of commission of crime. Existence of an Aactual agreement@ doesn=t affect either of these dangers, so it should not be req=ed. AGREE TO WHAT? CL: object of agreement need not be a criminal act - just immoral. MPC: object of agreement must be a crime. Overt Act Is there overt act? Act does not have to be a substantial step - just Afurther@ the felony Ex: Alvarez: D nodding his head = substantial step b/c it was an assurance to assuage jittery accomplice in conspiracy. Cowboy - mere presence on a boat filled w/drugs = substantial step CL: act of agreement = overt act; no other act req=ed. How much preparation SHOULD be req=ed? Very little: function of requirement is to show that the conspiracy is at work & not merely in minds of Ds or already completed. Holmes: Aessence@ of conspiracy is combining f/ unlawful purpose - doesn=t matter how remote f/ accomplishing purpose if done f/ that effect conspiracy law fills the gap left by ineffective attempt laws which impose criminality later than is effective (BUT, should you not then affect a change in the bad attempt laws rather than trying to stealth end-around the law?) More then a little: Ohio requires that act must manifest purpose of D to complete the object of conspiracy Abandonment Defense Traditionally cts require D take Aaffirmative action@ to announce their withdrawal to all of the other Cs. MPC: Aff defense of an actor who has conspired to commit crime if she: thwarts the success of the conspiracy [some states only require D to make substantial effort to prevent the crime]. under circumstances manifesting complete & voluntary renunciation of criminal purpose SEQ Outline_0 \* ROMAN \nV. Mens Reatc \l1 "V. Mens Rea Ds must have the purpose of promoting/facilitating the commission of the conduct that constitutes the crime. (MPC). CL: must intend to BOTH agree & to commit the underlying crime. Knowledge Exception: Purpose can be inferred f/knowledge if Inflated prices [ex: hooker using D=s room f/ inflated rates] No legitimate use f/goods or services exist Wire service information f/bookies When volume of business is grossly disproportionate to any legitimate demand OR when volume of sales f/illegal use are most of D=s business. D sells doctor 300 times more morphine then doc needed. Purpose is sometimes not required if the crime is a 1st or 2nd degree felony US v Morse. D sells plane w/no seats to Cs at twice going rate. Didn=t register w/FAA, knew Cs were going to smuggle pot w/it. Telephone answering service w/knowledge that it was being used f/ransom demands. Seller of gasoline who knew it would be used f/Molotov cocktails. Lauria (w/ original facts of Lauria case itself, not convicted of conspiracy, guy running answering service used by prostitutes, too low a crime&incidental to his operation). Strict Liability crimes Mens Rea as to circumstances usually tracks the MR requirements f/ the underlying substantive offense. BAD: Learned Hand: traffic light analogy - D can be guilty of running past a traffic light even if he didn=t know it was there, but can=t be guilty of conspiring to run such a light if D doesn=t know its there, since this presupposes that there is a light to run past. 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