Criminal Law Final Outline

Offenses
y Homicide o MPC y y y Criminal homicide is the unlawful killing of a human being purposely, knowingly, recklessly, or negligently (210.1) There is no distinction between first and second degree murder under the MPC. It just varies by sentence Jeffries o Serial drunk driver o Drunk driving homicides can be murder, manslaughter, or negligent homicide depending on factors such as persistent recidivism and failures at rehab (maybe take on incapacitation approach) Weems o Accidental killings can count as murder, manslaughter, or negligent homicide, or as no-crime depending on facts o Weems = taking loaded, cocked, gun into caf for purpose of protection is reckless, but does not rise to extreme indifference to human life o In order for a killing to count as murder under the MPC s extreme indifference provision, D s conduct must be tantamount to proof of an intentional killing Warden o Doctor s extreme negligence, resulting in death can count as negligent homicide, or higher  Strong arguments for just allowing tort law to handle this y Don t want to deter doctors from taking risks that might help patients y Difficulty to judge medical reasonableness y Doctors generally try to do the right thing

Murder y 210.2 o (1)(a) criminal homicide is murder when it is committed purposely or knowingly, or o (1)(b) it is committed recklessly under the circumstances manifesting extreme indifference to the value of human life. o (2) murder is a felony of the first degree and the actor may be sentenced to death. y McCown

o  Manslaughter y 210.3 o (1)(a) criminal homicide is manslaughter when it is committed recklessly o (1)(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor s situation under the circumstances as he believes them to be.  Three key differences between this and PA pattern: y Cooling off period is irrelevant y Never use categorical approach to judge adequacy of provocation y More subjective approach to reasonable person test  Cassassa y Extreme mental or emotional disturbance (EMED) manslaughter is the appropriate verdict (instead of murder) if there is a reasonable explanation or excuse for the EMED that caused the actor to kill. y Reasonableness of the explanation or excuse should be judged from the viewpoint of the person in the actor s situation under circumstances as he believed them to be y Even under the MPC, the ultimate test is objective o (b) manslaughter is a felony of the second degree  Negligent Homicide y 210.4 o (1)criminal homicide constitutes negligent homicide when it is committed negligently o (2) negligent homicide is a felony of the third degree PA pattern

Two friends kill stepdad; 97 wounds. DEF appeals murder conviction because jury instruction did not include malice instruction; no malice needed in MPC Kansas. Statutes trump common law

Was killing deliberate?

Yes

Was killing premeditated?

Yes

1st Degree Murder

No Yes Yes Did D intend to kill? (ie, did D have express malice?) Was it D s purpose to kill? Yes Was D provoked ?

2nd Degree (intentional) Murder 2nd Degree (depraved heart) Murder MPC Murder MPC 210.2(1)(a) MPC Murder MPC 210.2(1)(b)

No Did D know his conduct would kill?

Yes

Voluntary Manslaughter Did D suffer extreme emotional disturbance ? Yes Manslaughter MPC 210.3(1)(b) Involuntary Manslaughter (ie, Reckless Homicide) Was risk substantial and unjustifiable? Yes Manslaughter MPC 210.3(1)(a) Involuntary Manslaughter (ie, Negligent Homicide) Yes Negligent Homicide MPC 210.4 Felony Murder (possibly)

No Yes Did D act with depraved heart (implied malice)? No Did D act with extreme indifference to human life? No Did D recognize a risk he might kill? Yes

Yes Yes Was risk substantial and unjustifiable?

No

Should D have recognized a risk he might kill?

No

Was D committing felony?

Yes

 

Murder y 1st Degree murder o Elements:  Causing  Death  Human being  Intentionally, and  Deliberately, and  With premeditation o Intentional killing o Deliberation  Cool mind o Premeditation  Prior reflection o Carroll  D shot sleeping wife after argument, pleaded to general murder charge and judge had to determine whether it was first or second degree.  Found guilty of first degree murder  Whatever happens after the murder is not legally relevant  No time is too short to premeditate; it can occur in an instant o Perez  DEF killed pregnant acquaintance with multiple stab wounds  Conviction for first degree  nd y 2 Degree murder o Elements

Causing Death Human being Either: y Intentionally but without deliberation and premeditation, or y With a depraved heart Intentional killing (without deliberation and premeditation)  Anderson y DEF killed little girl sexual in nature, 60 wounds y Brutality of killing does not establish proof of premed and deliberation o some courts hold otherwise o others say it indicates frenzy, which is not premed and deliberation y prosecution must prove beyond reasonable doubt killing was deliberate y rebuttable presumption exists that unjustified killing is 2nd degree murder y look for evidence of planning/motive o or was the manner of killing so particular and exacting that the DEF must have acted with a preconceived design to kill in that way Depraved Heart murder (unintentional, but grossly reckless)  Malone y Game of Russian roulette was deemed to be depraved heart murder y When an individual commits an act of gross [recklessness] for which he must reasonably anticipate that death to another is likely to result, he exhibits that wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty which proved that there was at that time in him the state or mind termed malice .  Knoller y where a killing is proximately caused by an act, the natural consequences of which are dangerous to [human] life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with a conscious disregard for life. (quoting Phillips) y objective element: o natural consequences of the act are dangerous to live y subjective element: o DEF deliberately performed the act o DEF knew that this conduct endangered the life of another o DEF acted with conscious disregard for life    

Fleming (1984): (p.71)= The difference between depraved heart murder (implied malice) and involuntary manslaughter is one of degree rather than kind Examples of depraved heart cases: y Russian roulette y Shooting firearm into occupied area y Setting bomb off in occupied building y Failing to feed child for weeks y Shaking an infant to point of unconsciousness y Throwing furniture off a roof to a crowded street below y Driving speed boat through group of swimmers

Manslaughter y Voluntary Manslaughter o Elements:  Causing  Death of  Human Being  Intentionally  With provocation y 3 pronged test for provocation o Did DEF have adequate provocation reasonable cause to become upset, scared, angry, etc.  Mere words are not enough(in most jurisdictions)  Category approach: mutual combat, serious assault and battery, injury to DEF s relative or 3rd party, resisting illegal arrest, discovering cheating spouse  Reasonable cause approach (more flexible than category) o Would a reasonable person have reacted as DEF did, given hop upset they were at the time  Reasonable person test: given the degree of provocation the DEF experienced, would a reasonable person have acted as DEF did? objective test is majority rule o Did DEF actually cool off or was there insufficient time? y Minority rule that victim must be source of provocation y o Passion Killings o Two ways to look at voluntary manslaughter  Provocation negates malice  Provocation serves as a partial defense to o Avery

Although words are not sufficient to establish provocation, prior acts of provocation can be combined with words uttered immediately before the killing  Judge took more subjective approach to judging provocation y Took DEF s particular life experiences into account in determining whether evidence was sufficient to raise issue of provocation Involuntary Manslaughter o Elements:  Causing  Death of  Human Being  Recklessly y DEF is aware of a substantial and unjustifiable risk that his conduct will cause death of a human being but DEF chooses to engage in the conduct nonetheless o Awareness is key factor o Risk must be substantial and unjustifiable o Disregarding the risk must be a gross deviation from the standard of care a reasonable person would observe Negligent homicide o Elements:  Causing  Death of  Human Being  Negligently y DEF should be aware but is not aware of a substantial and unjustifiable risk that his conduct will cause death of a human being but DEF engages in the conduct nonetheless. o Feinberg  Feinberg had a store that sold sterno in philly. Feinberg knew the customers were drinking it and sterno recently changed its formula so that it was now very toxic. 31 people died in the area from methanol poisoning and Feinberg was guilty of involuntary manslaughter o Hall o Robertson  

Felony Murder y Elements o Felony o Death o (no mens rea requirement) y Violates principle of correspondence  Dangerous felony doctrine y Abstract dangerousness o Dangerous felony-type (look at elements of offense)

 

Case-specific dangerousness o Dangerous act by DEF in this particular case (look at DEF s conduct) o Anderson chose case specific because a felon in possession of a stolen firearm is not an inherently dangerous offense (just possession) o Dissent wants to use abstract dangerousness Merger doctrine y Prevents bootstrapping manslaughter to make every homicide into murder Causation issues y Agency Approach better for DEF y Cone of Violence approach worse for DEF o Sophophone  cone of violence approach used by court y

Assault o Assault (non-sexual)  Simple Assault 211.1(1) y Elements: o Attempts to cause or purposely, knowingly, or recklessly causes o bodily injury o to another o Or negligently o Causes bodily injury to another o with a deadly weapon, or o Attempts o By physical menace o To put another in fear o Of imminent serious o Bodily injury  Aggravated Assault 211.1 (2) y Elements: o Attempts to cause o Serious bodily injury o To another, or o Causes such injury o Purposely, knowingly, or recklessly o Under circumstances manifesting extreme indifference to human life, or o Attempts to cause or o Purposely or knowingly causes o Bodily injury o To another o With a deadly weapon  210.0 (4) any firearm or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury  Reckless Endangerment 211.2 y Elements

o o o o o o o o

Recklessly Engages in conduct Which places or map place Another person In danger of death Or serious bodily injury

Sexual assault/rape  Take home portion only Attempted battery  Elements: y Conduct element not specified any voluntary act will suffice and even an omission like Miranda y Circumstance not specified y Consequence not specified o No need for prosecution to prove batter actually occurred y MR intention to commit a battery Traditional Offenses  Larceny by trespass y Elements: o Trespassory - circumstance o Taking - conduct o carrying away - conduct o Of the personal property of another - circumstance o With the intent to deprive permanently MR y Lund stealing computer time does not count as larceny because computer time is not property y Meyer asportation element not satisfied where property remains tethered o Illustrates court s emphasis on formal requirements of larceny over substantive concerns of convicting would-be thieves o Compare Jonusas where Nebraska court applied state s any which way but lose statute in affirming conviction for trespassory larceny in a case where the facts supported conviction for larceny by trick y Brown joyriding case intent to borrow does not count as intent to permanently deprive y Four cases where DEF can be guilty of stealing his own property o Property in possession of bailee o Property has been pledged (eg, as security on a loan) o Property in possession of one who has a valid lien on it o Property is co-owned (but note this is a minority rule, applicable only where trespass element is clear)  Larceny by trick y Elements: o Deception conduct/circumstance  Not true conduct b/c DEF does not have to create the deception o Taking - conduct

Theft o

o Carrying off conduct o Of personal property circumstance o Of another circumstance o With the intent to deprive MR o Permanently MR y King v. Pear o Created offense of larceny-by-trick: fraud element substitutes for trespass element o Illustrates common law s ex post facto creation of new offenses (and raises concerns regarding principle of legality, non-retroactivity, and fair notice) Theft by false pretenses y Elements: o DEF represented conduct o A fact circumstance  That was material circumstance  That existed at the time or in the past circumstance  That actually was false - circumstance o DEF s representation caused causation o VIC s reliance consequence o VIC s reliance caused causation o VIC to pass title of property to DEF consequence o DEF knew the fact was false- MR o DEF intended to deceive VIC MR o DEF intended to obtain title to the property MR y Phebus o Price tags switch case o Upon buying the item at a lower price, DEF obtains title and thus commits false pretenses, not larceny by trick  Illustrates key distinction between LBT and false pretenses y LBT is the appropriate charge in cases there DEF merely obtains possession of property, not title y False pretenses is the appropriate charge when DEF gets title Embezzlement y Elements: o Fraudulent MR  Generally interpreted as intent to defraud, thus implying the absence of: y Bona fide claim of right to property y Intent to return property y Intent to restore equivalent value y Intent to collect a debt o Conversion conduct  Serious interference with owner s rights slight damage, casual use, carrying away, borrowing will not do  Requires intention o Of property circumstance

y y y

That belongs to another person circumstance Where DEF was in lawful possession of property prior to the fraudulent conversion circumstance Key difference between larceny and embezzlement is DEF is in lawful possession before he does anything wrong No caption or asportation elements Ryan o Illustrates the difficulty in distinguishing embezzlement from larceny in employer-employee ( master-servant ) cases in which employee received property on behalf of employer o Key issue distinguishing embezzlement from larceny by employee = Did employee fully turn over property to employer?  If yes = larceny  If no = embezzlement o Which factor should weigh more heavily in deciding whether employee fully turned over property to employer?  (1) the physical location of the money, employee, employer, time span, etc? or  (2) the employee s state of mind during the time he is not physically in possession of the property? o o o

MPC 

Theft by unlawful taking or disposition 223.2 y (1) movable property o Unlawfully o Takes, or o Exercises unlawful control over o Movable property o Of another o With purpose to deprive him thereof y (2) immovable property o Unlawfully o Transfers o Immovable property o Of another o Or any interest therein o With purpose to benefit himself or another not entitled thereto Theft by deception 223.3 y Purposely obtains property of another by deception. A person deceives if he purposely: o (1) creates or o Reinforces o A false impression o Including false impressions as to law, value, intention, or other state of mind o But deception as to a person s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform that promise o (2) prevents

Another From acquiring information Which would affect his judgment or transaction (3) fails to correct A false impression Which the deceiver previously created or reinforced Or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship o (4) fails to disclose o A known lien, adverse claim, or other legal impediment to the enjoyment of property o Which he transfers or encumbers in consideration for the property obtained o Whether such impediment is or is not valid, or is not a matter of public record Theft by extortion 223.4 y A person if guilty of theft if he purposely obtains property of another by threatening to: o (1) inflict o Bodily injury o On anyone o Or commit any other criminal offense o (2) accuse o Anyone o Of a criminal offense o (3) expose o Any secret o Tending to subject o Any person o To hatred, contempt, or ridicule, or to impair his credit or business repute o (4) take or withhold action as an official o (5) bring about or continue a strike o (6) testify or provide information or withhold testimony or information with respect to another s legal claim or defense o (7) inflict any other harm Theft of property mislaid or delivered by mistake 223.5 y Comes into control y Of peroperty y Of another y That he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the orperty y Or the identity of the recipient y Is guilty of theft if y With purpose to deprive the owner thereof y He fails to take reasonable measures y To restore the property to a person entitled to it Receiving stolen property o o o o o o o

General Part
y Principles o Purposes of punishment y Avoid tendency to choose sides and argue for the justification of criminal punishment based only on one set of considerations y Blarek and Pellecchia o Analyzes all 4 reasons for punishment  Rehabilitation y Treat the DEF by helping him and he won t commit crimes in the future  Incapacitation y Prevent DEF from physically committing further crimes y Contrast with specific deterrence because one deals with teaching DEF lesson and the other is for physical restraint purposes  Retribution y Punishing someone for retributive reasons might reduce rehabilitation y because they deserve it do not look forward o Factors considered are harm caused and culpability  Deterrence y Specific Deterrence o Punish this DEF to discourage him from committing crimes in the future y General Deterrence o Punish particular DEF to deter others from committing crimes o Criminalization  Principle of legality y Principle of fair notice y Non-retroactivity o Must prove on what date offense was committed because of due process and statutes of limitations y Principle of lenity o Courts should construe a penal statute as favorably to the DEF as its language and the circumstances of its application may reasonably permit Keeler o Keeler v. Superior Court CA  Domestic violence; DEF stomped wife, killed fetus  Issue Is fetus human being? No. analysis/reasoning should be fair. Dissent states fetus is human being. Dissent s reasoning is based on legislative intent and that statutes should be interpreted to promote justice and fair enough warning was given to DEF  Principle of fair import governs broadness of interpretation of criminal law  Harm Principle y In order for conduct to be criminalized, it must cause harm y Harm can be directed to self, others, or indirect  Legal Moralism  Principle of culpability y Principle of correspondence

Each actus reus element must have a corresponding mens rea element All strict liability offenses, felony murder, and statutory rape violate this principle Principle of coincidence o Strict version  Principle of contemporaneity y Need to prove the simultaneous occurrence of actus reus and MR  Timing must actually coincide o Weak version  Joint operation of mens rea and actus reus  Jackson y Actus reus must be attributable to the mens rea  No need for time to coincide o o

Doctrines o Inchoate liability  Attempt intending to commit the target offense, but failing to do so y Offenses that consist of conduct which would constitute a completed offense, except that at least one element of the AR is missing (typically the consequence) y Why punish attempt? o Prevent harm o Incapacitation, rehabilitation, or deterring potential offenders o Just as culpable as those who complete offenses y Cannot be charged with attempt and the completed offense y General rule: in order to be liable for an attempt, DEF must have the MR of specific intent to commit the target offense y Attempt crimes are always specific intent y Intoxication can (not always) negate specific intent y Most jurisdictions hold that there is no attempt in recklessness MR cases or involuntary homicides y Impossible Attempt Elements under MPC 5.01(1)(a) o Purposely engages in conduct that would constitute the crime o If the attendant circumstances were as he believes them to be  If DEF is mistaken about a fact and that mistake were actually true, he d be committing the target crime o Thousand  Michigan test is subjective like MPC bad for DEF  Whether impossibility is a defense to attempted distribution of obscenity to a minor (kind of like to catch a predator situation) y Impossibility is no defense to attempt. Subjective standard applied, DEF s mistake of fact judged subjectively inculpates him. y Impossible attempts are one of the few scenarios where a subjective standard hurts the DEF because the DEF thought they were committing a crime

  

Simplified, in impossible attempt scenarios, a mistake of law probably provides a defense where a mistake of fact does not. Solicitation asking someone to commit the target offense Conspiracy agreeing with others to commit the target offense Three Tests y Overt act did DEF engage in an overt act in the furtherance of the attempt? requires least conduct mere preparation y Last act did DEF engage in every action that would be necessary to commit the target offense? narrowest test convicts fewest DEFs y Substantial step MPC - 5.01(2) lists examples of substantial steps o Possession of materials should never be sufficient o Williamson  Take-away message = Two important issues to consider when deciding whether D s conduct amounts to a substantial step are y (1) Physical proximity o What was D s physical proximity to the V whom D intended to attack, the property D intended to steal, or the bank D intended to rob, etc.? y (2) Intervention o Did D desist from his attempt because he was prevented from doing so or because he decided to desist of his own accord? y 5.01(1)(b) - when causing a particular result is an element of the crime, [D] does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part. o This test asks whether D believed that he had committed last act (or omission) necessary to bring about the prohibited result (consequence) of the target offense o Prosecution need not prove that D s belief was reasonable o This rule broadens attempt liability quite far. No states have adopted this rule. y 5.05(2) if the particular conduct charged to constitute a criminal attempt, solicitation, or conspiracy is so inherently unlikely to result of culminate in the commission of a crime that neither such conduct nor the actor presents a public danger warranting the grading of such offense under this section, the court shall exercise its power under section 6.12 to enter judgment and impose sentence for a crime of lower grade or degree, or dismiss y No liability for attempting an attempt e.g. no attempted attempted battery o Lamb  No attempted attempts (cited in Williamson) y Assault and battery were separate assault was essentially attempted battery, so hence no attempted assault y Defenses to Attempt liability o Renunciation/withdrawal  5.01(4) y Must be complete, voluntary, and avoid harm sought to be prevented by law prohibiting target offense o

y o

Cannot merely postpone

Complicity liability  DEF is either liable as an accomplice or not liable for complicity  MPC 2.06 y (1) a person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both y (2) a person is legally accountable for the conduct of another when: o (a) - Acting with sufficient culpability for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct o (b) he is made accountable by law or statute defining offense o (c) - he is an accomplice in the commission of the offense y (3) a person is an accomplice when o (a) with the purpose of promoting or the commission of the offense, he  (i) solicits such other person to commit it  (ii) aids or agrees or attempts to aid such other person in planning/committing it  (iii) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so, or o (b) conduct is expressly declared by law to establish complicity  Basic complicity liability y AR of Complicity o Aiding P s offense o Encouraging P s offense  Is A s mere presence at the scene of a crime sufficient to constitute encouragement to P? y No  P must know that A intends his presence to be a sign of encouragement, or  P must know that A is willing to aid P in the offense if called upon to do so y MR of Complicity o A intends to engage in the conduct which counts as assisting or encouraging, *and* o A intends that P commit the offense  MPC adopts this approach ( purpose ) in cases where P s crime is a conduct crime (eg, battery/rape/theft) MPC 2.06(3)(a)  In cases where P s crime is a result/consequence crime (eg, homicide), MPC requires only the mens rea that corresponds to P s crime MPC 2.06(4)  Minority rule (broader) = Merely that A knows that his conduct will aid or encourage P s offense y Complicity cases o Moore (2004) p. 719  goading P into committing using weapon suffices for accomplice liability for possession charge

Campbell (1994) p. 722  A s conduct prior to and subsequent to P s crime is relevant in determining whether A was merely present (and thus A is not liable as an accomplice) or whether A encouraged P s crime (and thus A is liable as an accomplice) o Omitting to perform a legal duty to prevent P s offense  Can McQueary be prosecuted as an accomplice to Sandusky s alleged offenses?  Miranda y On what basis can complicity liability be justified? o Forfeited personal identity theory? (book mentions, but )  Not widely accepted as a justification for complicity liability  Failing to treat persons as individuals violates liberal ideals of the rule of law o Agency theory (P is acting as A s agent) explains some cases  A solicits P to commit the offense  A places P under duress to force P to commit the offense  A uses P as an innocent agent (but note, in innocent agent cases, A is considered to be the principal offender, not the accomplice so, strictly speaking, innocent agent cases don t involve complicity liability) o Causal contribution theory  A either makes it more likely that P will commit the offense or makes a contribution to the way in which the offense is committed  Explains more cases than agency theory, but fails to explain A s liability for failed attempt to aid P s offence. y An accomplice can be convicted even if the principal is acquitted o Used to be no, but in modern times yes o Cases where this issue arises in practice  P dies before being convicted  P is not charged (plea bargain  P is acquitted on basis of personal excuse (eg, insanity, duress)  P is acquitted on basis that jury believes no crime was committed  A has no defense based on collateral estoppel  Standefer (1980) p. 716 Gladstone y X can be liable for aiding Y s solicitation of Z to commit an offense, but will not be liable for Z s offense y Gladstone seems to require a prior arrangement to commit the crime (and thus comes close to treating complicity as a form of conspiracy) - whereas Rivera does not require any prior arrangement. Medina-Roman y How did court articulate the elements of complicity liability? (p. 729) o A knows (is practically certain) of P s offence o A willingly facilitates P s offense  1. P carries a firearm in the commission of a drug trafficking offense (AR circumstance element) o

2. A facilitates P s carrying of a firearm in the commission of a drug trafficking offense (AR conduct element)  3. A s facilitation of P s carrying of a firearm in the commission of a drug trafficking offense is done by A willingly (MR - corresponding to conduct element)  4. A knows that P was carrying a firearm in the commission of a drug trafficking offense (MR - corresponding to circumstance element)  Aiding an attempt vs. attempting to aid y Aiding an Attempt o Non-MPC no aiding an attempt o MPC aiding an attempt is chargeable y Attempting to Aid o Failed attempts to render aid o Non-MPC majority rule: Principal must at least know of Aider s attempt and then A s conduct counts as encouraging o MPC yes, attempting to aid is sufficient o MPC 2.06(3)(a)(ii) attempts to aid  aids or agrees or attempts to aid such other person in planning/committing it o under MPC, you can be liable for attempting to aid an attempt e.g. attempting to aid an attempted burglary; under non-MPC, no liability  Innocent agency  Failure to perform legal duty  Defenses to complicity liability y MPC 2.06(6)(a) o Victims not accomplices y MPC 2.06(6)(c) o Renunciation  Compare renunciation as a defense to attempt liability (MPC 5.01(4))  One big difference is the motivating factor provision under complicity, an actor can renounce because they re afraid of being caught. Under attempt, this would not be a valid defense. Defenses  Failure of proof defenses y Denial of actus reus y Denial of mens rea  Affirmative defenses y Justification  The act was not wrong, all-things-considered  Permissible or even commendable o Self Defense  Self Defense non MPC y (1) D has a reasonable (and honest) belief that force is necessary to protect himself/herself y (2) D has a reasonable (and honest) belief that attack is imminent 

y y y

(3) D used a reasonable amount of force under the circumstances (4) The force D is responding to was unlawful Note key difference from MPC = MPC 3.04 does not require D s beliefs to be reasonable o but see MPC 3.09(2))  How does 3.09 modify this subjective approach?  If D s belief was unreasonable and D was reckless or negligent in holding that belief, then  Although D cannot be convicted of an offense which requires intent, purpose or knowledge as the mens rea  D can be convicted of an offense which merely requires recklessness or negligence as the mens rea Did D actually hold a mistaken belief? o If no, then no self-defense = conviction on pending charges o If yes, then ask whether that belief was reasonable Was D s mistaken belief reasonable? o If yes, then D has perfect self-defense = acquittal o If no, then ask whether doctrine of imperfect selfdefense applies Was D s mistaken belief unreasonable? o If imperfect self-defense available = convict on lesser charge  Manslaughter instead of murder  Assault instead of attempted murder o If imperfect self-defense not available = no defense, conviction on pending charges

3.04 y What is the key difference between the MPC approach to selfdefense and the non-MPC approach? y MPC adopts a wholly subjective standard (so even unreasonable beliefs will support a self-defense plea) y Relevant circumstances in determining whether D s conduct was that of a reasonable man in the DEF s situation o Movements of the assailant o Knowledge DEF had about assailant o Physical attributes of involved persons o DEF s prior experiences which could serve as a basis for belief y Goetz o What is the proper standard for self-defense?

Reasonable man in DEF s situation (mix, leans towards objective)  Battered woman syndrome y Relevant to proving that D s mistake(s) of fact regarding o Whether attack with deadly force was imminent o Whether deadly force was necessary o Whether amount of force used was reasonable y Did Edwards make mistakes of fact on these points? y Apply Goetz factors to Edwards: o Physical movements of husband o Relevant knowledge D had about husband o Physical attributes of D and husband o D s prior experiences which could provide a reasonable basis for a belief  that husband s intentions were to injure her, and  that deadly force was necessary under the circumstances y 3.04 = subjective standard for self-defense y 3.09 = self-defense does not exonerate D where D makes a reckless or negligent mistake of fact regarding the necessity of the use of force y Under MPC, D not guilty of murder, but o Guilty of manslaughter if D recognized a substantial and unjustifiable risk that deadly force might not be necessary, and yet she consciously disregarded that risk, and such disregard involved a gross deviation from the standard of conduct a law-abiding person would observe in the actor s situation o Guilty of negligent homicide if D failed to recognize a substantial and unjustifiable risk that deadly force was not necessary and such failure involved a gross deviation from the standard of conduct a reasonable person would observe in the actor s situation y Edwards o Wife shot husband 4 times and was convicted of voluntary manslaughter and then got reversed o Statute for battered spouse syndrome in MO o Husband frequently struck kids and wife one day he hit her with a lead pipe and she shot him shortly after Defense of others  Randle y Should CA recognize defense of imperfect defense of others? yes y One who kills in the actual but unreasonable belief he must protect another person from imminent danger of death or great 

y y  Reasonable and honest belief rule y Prevailing rule y Used a reasonable amount of force to respond to what reasonably appeared to be the use or threat of unlawful force against another person  Honest but unreasonable belief rule y MPC approach y Subjective y DEF can assert defense of third parties if the DEF honestly believes the intervention is necessary under the circumstances to protect the person from unlawful force  Alter-ego rule y AKA stand in shoes approach y Narrowly limited the right to defend the 3rd person y DEF steps into shoes of the person defended with no greater right to use force than that person, even if the DEF s conduct is reasonable (mistakenly helping someone resisting arrest)  3.05 y (1)(a) justified where the actor could use such force to protect himself y (1)(b)under the circumstances as the actor believes them to be (subjective approach) the person whom he seeks to protect would be justified in using such protective force y (1)(c) the actor believes intervention is necessary  Retreat rule y Applies only to use of deadly force y General rule: DEF must retreat before using deadly force if he can do so with complete safety 3.04(2)(b)(ii) and 3.05(2)(1) y DEF does not have to retreat from his own home or workplace o 3.04(2)(b)(ii)(A) o If DEF was initial aggressor, however, he must retreat, even if it s at his home or workplace (3.04(2)(b)(ii)(A)  This includes attacks by coworkers Use of force to arrest 3.07  Non-deadly force is permitted to make arrest: MPC 3.07(1) y Includes use of force by citizens ( citizen s arrest ) y but D must tell V the purpose of the arrest (if reasonably possible) (MPC 3.07(2)(a)(i))  Deadly force is permitted only if y Arrest is for felony and D believes o V used or threatened deadly force in committing felony, or

bodily injuty is guilty of voluntary manslaughter and not murder because he lacks the malice required for murder. Imperfect defense mitigates, rather than justifies homicide

V poses substantial risk of death or serious bodily injury if not arrested  D is an authorized peace officer y or assisting someone he believes is an authorized peace officer  D believes his use of deadly force creates no substantial risk of injury to innocent persons Use of force to prevent escape  Common law rule: deadly force generally permitted against escaping felon  MPC rule: deadly force permitted against escaping felon, if: y felony involved use or threat of deadly force, or y delayed apprehension will create a substantial risk that felon will cause death or serious bodily harm Necessity  Not typically available for intentional homicides  Non-MPC elements: y D honestly (and reasonably) believed conduct was necessary y To avoid harm/evil y To himself or another y D s conduct is the lesser evil y No law provides exception for D s specific situation y Legislative has not plainly excluded a claim of necessity in D s specific situation y D was not at fault in causing situation (non-MPC)  Leno y Necessity not allowed where evil sought to be avoided is mere possibility (not clear and imminent) y Plus, another legal option was available (petitioning legislature)  MPC 3.02 Consent  Consent to harm y Legal moralism: supports criminalization on basis that conduct violates public morality y Legal Paternalism: supports criminalization on basis of protecting consenting victims y Liberalism (harm principle) generally would not support criminalization if VIC validly consents  MPC 2.11 y Victim s consent is a defense if it negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense. y Victim s consent to conduct that threatens or causes bodily injury is a defense if: o the bodily injury is not serious o the conduct and injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest o

or competitive sport or other concerted activity not forbidden by law When V is legally incompetent to authorize the conduct (eg, X consents to give V s property to D) y When the person is manifestly unable to make a reasonable judgment as to the nature or harmfulness of the conduct, due to... o Youth o Mental disease or defect o Intoxication y When the person is known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct, due to o Youth o Mental disease or defect o Intoxication y When the assent is given by a person whose improvident consent is sought to be prevented by the law defining the offense; o When the assent is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense. The act was wrong, all-things-considered, but the actor was not culpable D not morally blameworthy, despite having done the wrong thing

Excuse 

 Duress  Not typically available for intentional homicides (common law)  Elements y MPC 2.09 (1-2) y D faced a threat of harm if he did not commit the offense y Threat of harm was directed to D or another person y D was actually unable to resist (ie, D s will was overcome) y A person of reasonable firmness in D s situation would have been unable to resist y D was not reckless for being in the situation in which he faced the threat o If D was negligent then duress defense unavailable in response to crimes of negligence (MPC 2.09(2)) y D had no reasonable opportunity to escape/neutralize threat, avoid committing the offense  Contento-Pachon y Mistake of fact  Must be reasonable to be used as a defense  MPC 2.04

(1) mistake of fact can result in acquittal (or reduction of charge) if o mistake negates D s mens rea (failure of proof defense) or o the law provides that D s mistaken state of mind constitutes a defense (true defense)  Perez (1990) p. 462 Illustrates mistake of fact treated by court as a true defense  Statutory rape case where VIC and friends lied about age to DEF 2.04(2) o Not available if the DEF would be guilty of another offense had the situation been as he supposed. Ignorance or mistake shall reduce the grade and degree of the offense had the situation been as he supposed

Mistake of Law  Not typically a defense  Applicable in situations where statute makes knowledge of law element of the offense Intoxication

1st degree murder

 Reduced to 2nd degree murder

Possession of narcotics with intent to distribute

 Reduced to simple possession

Burglary ( entering a building with intent to commit a felony therein )

 Reduced to breaking and entering

Assault with intent to cause serious bodily harm

 Reduced to simple assault

  MPC 2.08(1-3) voluntary intoxication y If voluntary intoxication, most likely irrelevant y If the MR for the offense is recklessness or lower, DEF s recklessness in choosing to be intoxicated will supply MR for the later offense MPC 2.08(4) involuntary intoxication y Affirmative defense

y y

y y Elements o

Cannot be self-induced or pathological Must prove that intoxication either: o Substantially impaired DEF s capacity either  To appreciate the wrongness of his conduct, or  To conform his conduct to the requirements of the law, or  Made DEF incapable of distinguishing between right and wrong with respect to the offense What counts as involuntary tox in 2.08(5)(b) and (c)

 Courts approach AR and MR as two distinct issues US v. Zandi Actus reus  Conduct y Voluntary act o 2.01 generally, no criminal liability unless DEF performs voluntary act  No liability for reflex, convulsion, unconscious movement or while sleeping, actions while hypnotized  Can be based on habitual actions o Sowry  DEF lied and allowed drugs to be brought into a jail; lie is a volitional act; 5th amendment prevents self-incrimination but does not license lying y Omissions liability o Two Exceptions:  Criminal liability can arise even if DEF does not preform a voluntary act if: y An omission is expressly made sufficient by the law defining the offense (failure to file tax returns, etc) y DEF has a legal duty to act (otherwise imposed by law) o Created by:  Statute  Contract  Relationships common law parent towards child, spouses, DEF comes to aid of Victim, DEF creates risk to VIC; must have ability to help and knowledge of relationship that creates duty. y Miranda o Duty to act created through common law violated principle of lenity and legality/non-retroactivity o Reversed in 2005 b/c scope of common law duties to act are unclear in law and subject of much debate  Exceptions are typically narrowly construed  Circumstance  Causation y But-for test o DEF is an actual cause if the bad result would not have happened but-for the DEF s conduct

o Accelerating death is considered actual cause y Proximate cause test o Bad result is natural and probable consequence of DEF s conduct  Two key concepts: y Foreseeability o DEFs generally not responsible for unforeseeable intervening events o Mistakes by doctors foreseeable and do not break causation o Eggshell victims do not break causation y Fairness y MPC approach  Consequence Mens rea

PURPOSE Conduct Engaging in conduct of that nature was D s conscious object 1) D is aware that such circumstances exist, or 2) D believes that such circumstances exist, or 3) D hopes that such circumstances exist Causing that consequence ( result ) was D s conscious object

KNOWLEDGE D is aware that his conduct is of that nature

Circumstance

D is aware that such circumstances exist

Consequence ( result )

D is aware that it is practically certain that his conduct will cause such a result

   

2.02 Intent/purpose 2.02(2)(a) y Conscious object to engage in conduct of that nature Knowledge 2.02(2)(b) y Element involves the nature of his conduct or the attendant circumstances , he is aware that his conduct is of that nature or that such circumstances exist Recklessness 2.02(2)(c) y When DEF is aware of and consciously disregards substantial and unjustifiable risk o Must have actually known o Substantial risk consider likelihood of harm and magnitude of harm o Unjustifiable risk nature and purpose of DEF s conduct  Whether he was acting in a way to advance an interest that justifies such a risk o Hall

 Skier who recklessly caused the death of another mountaingoer Negligence 2.02(2)(d) y When DEF is not aware but should have been of substantial and unjustifiable risk

Recklessness vs. Negligence

RECKLESSNESS D s state of mind D is actually aware of the risk (D consciously disregards the risk) NEGLIGENCE D is clueless, oblivious, has *no* awareness of the risk

Kind of risk D s deviation from standard of care

Substantial and unjustifiable gross deviation from standard law-abiding person would observe (note: effectively same standard as reasonable person )

Substantial and unjustifiable gross deviation from standard reasonable person would observe

When judging what counts as a gross deviation, consider the nature and purpose of DEF s conduct and the circumstances known to DEF y Don t consider circumstances DEF was unaware of Strict Liability y Two presumptions and one principle o There is a strong presumption that criminal offenses require mens rea corresponding to at least one element of the actus reus  Legislature must be clear if crime is strict liability o There is a strong presumption that criminal offenses require mens rea that separates blameworthy and innocent conduct o There is a principle which says that criminal offense require mens rea corresponding to every element of the actus reus (principle of correspondence) y Hosakay o DEF convicted of public indecenty o Conduct and circumstance, but no causation or consequence y Blaint o Opium sale without proper paperwork was strict liability y X-Citement video o Child porn mens rea of knowledge corresponding to circumstance element (age of victim) y DUI statutes o Also do not have required consequence/causation Transferred Intent y If DEF intends to harm V1 and by chance harms V2, his intent will transfer y All forms of mens rea can be transferred y

o Premeditation and deliberation can be transferred in most jurisdictions  Deliberate ignorance (ostrich) y Jewell Test o DEF has actual awareness of a high probability of a fact that is relevant to his guilt, and o DEF deliberately avoided learning the truth about that fact y MPC 2.02(7) o Broader than Jewell because deliberate avoidance is unnecessary o Narrower than Jewell because it is not satisfied in cases where DEF actually believed the relevant fact Burdens of proof o Beyond a reasonable doubt