Crim Law Slides Outline Format

NEXT TIME
READ:
Dressler Chapter 2, p. 29-50 and Handout
Criminal Law Section B

Administrative Matters
Required Text: Joshua Dressler, Criminal Law, Fourth Edition. Assignments: Expect about 25-30 pages per class. Some supplementary materials. This is a 3-Hour Class even though we meet twice a week! In the first part of the semester, we will cover most of Chapters 1-5 Pages will be given on a weekly basis. Posted on Web site
Classroom Expectations
Some material will be emotionally charged. Lawyers need to be able to deal with difficult realities. We need a balance of rational detachment and moral engagement (not just does it make sense but is it right?). Respectful comments over matters of profound disagreement is a professional skill that is required in this class.
Classroom Expectations
Mutual respect and professionalism Be on time and prepared Seating Chart No surfing the web, instant messaging or email during class. You may not have the internet cable hooked up nor any wireless connections during class. If you do, I will count you as absent.
Attendance Policy
Three unexcused absences (we meet only twice a week for 28 sessions!) Grade adjustment Come to class on time, be prepared to discuss the material.
Grading
Final Exam Closed book, three hours, mainly essay questions. Will cover all material in assigned readings, even if not discussed in class
Course Goals
Understand and apply selected criminal law doctrines. Critically evaluate legal doctrine we find in cases, statutes and explanations Evaluate and persuasively advocate alternative legal positions.
Criminal law shows whodunit? But first: What is a crime? A picks up a gun, shoots B. B dies. Has a crime been committed?
A&B are soldiers on the battlefield. A is a monkey. A believes he is shooting a camera, but it is a secret gun A is a robot programmed by C B is a deer A is 2 years old B is dressed up as a deer in a hunting area B is trying to kill A C has a gun pointed at As child and will kill her if A does not shoot B B, unwittingly, is driving a truck of explosives into a marketplace
General Overview
End or Goal of the Criminal Law Process?
Enforce certain minimal standards of conduct
Usually prohibitions, sometimes positive commands
John Finnis: To create a form of communal life in which some demands for the common good are preferred.
Both for your own good (not made subject to others convenience) and for good of all. To channel behavior away from dead ends that thwart human fulfillment?
Criminal Law - Nature

What makes criminal law distinct according to HLA Hart p. 1?
Sanctions?
Can be imposed in civil cases Death Penalty is distinctive.
Societal Injuries?
Law of torts, contracts, family law also embody societal ends
Public officials enforce?

civil cases as well
Anything called a crime is a crime?

Hart this is morally bankrupt
Criminal Law Nature

Hart: main distinction of criminal law Criminal law proscribes conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.
Criminal conviction is stigmatizing and punitive in itself.

And be it further enacted, That any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such a fugitive from service or labor, either with or without process as aforesaid, or shall rescue, or attempt to rescue, such fugitive from service or labor, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or shall aid, abet, or assist such person so owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or persons legally authorized as aforesaid; or shall harbor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months, by indictment and conviction before the District Court of the United States for the district in which such offence may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States; and shall moreover forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost as aforesaid, to be recovered by action of debt, in any of the District or Territorial Courts aforesaid, within whose jurisdiction the said offence may have been committed.
Criminal Law Nature

Does the Fugitive Slave Act constitute a criminal law according to Harts description?
How so?
Passed & enforced by public authority Injury to Society Sanctions, punishment Solemn condemnation by Community?
Is there anything deficient about the FSA? What role should morality play in criminal law?
Introduction
Characteristics of Criminal Law:
A series of clear general commands what people must not do (proscriptive commands), and what they must do (prescriptive) Commands are subject to sanctions for disobedience. Legitimacy of the process derives, in part, from the fact it is enforced upon the whole community, by the community, for the community. Is legitimacy tied to morality of the law?
Criminal Law and Natural Law

St. Thomas Aquinas:
Law is (1) an ordinance of reason (2) for the common good, (3) made by him who has care for the community, and (4) promulgated. S.T., I, II, Q. 90, art. 4 Criminal Law: operates through command, prohibition, permission and punishment. S.T., I,
II, Q. 92, art. 2
Is the FSA a law pursuant to this definition?
Criminal Law, Nature and Limits

Criminal Law and Minimalist Morality: All human law enforces morality of some sort, but different philosophies offer their own justifications for content of criminal law. Criminal law - Minimally tolerable standards of behavior reflects on the culture. Human law allows and leaves unpunished many things that are punished by Divine Providence
St. Augustine, On Free Will, I,
Limits
Human laws do not forbid all vices, from which the virtuous abstain, but only the grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained; thus human law prohibits murder, theft, and suchlike.
St. Thomas Aquinas, S.T., I, II Q.96, art. 2

Aspirational Content
To promote the Good, both for individuals and the common good.
Prof. Finnis Permit security and direction so that individuals can organize lives & avoid being used for convenience of others. All can flourish.
The proper effect of law is to lead its subjects to their proper virtue: and since virtue is that which makes its subject good, it follows that the proper effect of law is to make those to whom it is given, good, either simply or in some particular respect.
St. Thomas Aquinas, S.T., I, II, Q. 92, art. 2

Educational Roll Professor Finnis
Criminal law and its processes (apprehending, prosecuting, punishing criminals) educates members of the community: Of requirements of the law Costs of failing to obey Create incentives to obey Show that crime doesnt pay Justify those who obey the law
Criminal Law Nature

A just legal system reflects a view of Human Dignity
Not only needed because we are fallen, but also has a positive aspect in respecting human dignity of both the victim and the perpetrator.
People are given the dignity of being treated as responsible agents Assists people to organize their lives in directions that lead to flourishing. (Necessitates some minimal idea of the good life to be pursued)
Criminal Law - Introduction

Next time Chapter 2, pages 29-59 and the handout.
NEXT TIME
READING ASSIGNMENT:
Review 29-50 and the handout and read pages 50-66
and
Handout
Separation of Powers
Process of Defining and Applying Criminal Law
History Originally in Britain courts defined criminal laws through common law process. 19th Century Codification movement
Now Legislature & Courts collaborate:

Legislature looks forward defines criminal conduct in advance. Courts look back to statutes & precedent
Also look forward in novel situations: How to promote the ends of the statues, avoid the harms statute was designed to prevent.
Executive Branch
Prosecutes the law
Criminal Law Processes

MOST crimes dont result in trials Pretrial processes that limit:
Reported, investigated, sufficient evidence Probable Cause to arrest Preliminary hearing Sometimes grand jury must indict Pretrial motions exclude evidence, eg Plea Bargains 95% of convictions.
Possible abuse?
Jury Trial
Sixth Amendment p. 7-9
Jury is a right if penalty is 6 months or more Goal:To prevent government oppression Impartial: No bias that prevents them from following jury instruction. Voir dire, challenge Fair cross-section of the community: 6-12 members Usually must be unanimous (or substantial majority) Jury determines guilt or not guilty
Proof of Guilt at Trial

Proof beyond a Reasonable Doubt
Gives substance to the presumption of innocence Why cant a state choose a lesser standard?
Supreme Court says it is required by the Due Process Clause.
What does it mean?

Means jurors mind be in a subjective state of near certitude. Jackson v. Virginia, p. 11, n.2
When is such proof required?

To convict defendant of a crime, to overcome the presumption of innocence.
What must be proven beyond reasonable doubt?

Every fact necessary to constitute the crime charged.
In re: Winship, p. 9 Or every element of a crime modern terms

What was wrong with Cage instruction, bottom of page 11?
Violates Due Process Clause Standard makes it too easy for state to convict dont need that much doubt (grave uncertainty, actual substantial doubt) to find that state hasnt met its burden.

If you were a juror, which reasonable doubt instruction (p. 12-13) seems most clear and helpful? If you were a defense attorney, which instruction would you want?
In a survey, most thought firmly convinced instruction imposed the highest standard on govt

Presumption of Innocence Owens v. State p. 13-16.
Issue?
Was there sufficient evidence for the trial judge to conclude proof beyond a reasonable doubt?
How would you vote as a juror

Use the firmly convinced standard p. 12 Would you find proof beyond reasonable doubt of guilt? Why?
Holding?
Affirms conviction evidence, while circumstantial, is legally sufficient to support the verdict
If you were the appeals court, what standard would you apply?
Legal sufficiency: Appeals court: uses a legal sufficiency standard in reviewing whether a rational factfinder could find proof beyond reasonable doubt.
What does legal sufficiency mean and how is it applied on appeal?

Jackson v. Virginia, p. 18 whether a rational trier of fact could reasonably have reached the result it did. All conflicting evidence (credibility, factual) must be resolved in favor of prosecution (since this is presumably what jury found How would you apply this standard to Owens?
Legal sufficiency
Why do appeals courts apply this standard in reviewing a jurys guilty verdict?
Appeals court is not in a position to weigh conflicting evidence, determine credibility Improper to substitute appeals court judgment for the jurys determination in our system Value of finality

Note 1, p. 10 Is it better to let a guilty person go free than to convict an innocent?
Why does Harlan think so?
Social disutility?
Why does majority suggest?

Fundamental values of justice, individual worth normative
Do we all feel more secure because we dont wish to be falsely convicted? (Utilitarians would explain it this way)
Gallup 41% agree with Supreme Court 59% disagree

The Roman Emperor Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent.
Dig.L. 48
Jury nullification
What is it?
Acquittal despite proof beyond reasonable doubt Can the state appeal an acquittal by claiming that there was proof beyond a reasonable doubt? Can the defendant appeal a conviction by claiming the opposite?
Why does jury nullification happen?

Speculation: law is unfair; sympathy for defendant; anger at police, authorities
Effect Can defendant be retried?

No Double jeopardy forbids retrial by same sovereign for same crime
Jury Nullification
Must the judge instruct jury of its power to nullify?
No -- State v. Ragland (p. 19) Holding:
Proper to instruct jury that if they were convinced beyond a reasonable doubt they must find defendant guity
Should juries be instructed of this power?
Punishment
A note on statistics: Incarceration rate has gone up 700% from from rate in early 20th Century. What about the crime rate? http://www.jrsa.org/programs/Historical.pdf
Principles of Punishment
Criminal Punishment is usually characterized by several elements
Performed by and aimed at responsible agents Imposed by agent of the state Pursuant to legal authority granted to the agent By virtue of Ds conviction (who is explicitly blamed for his wrongful conduct) For breach of established rule of conduct Causes D to suffer a consequence that is usually considered unpleasant; it intentionally imposes suffering Is sex-offender commitment until cured a punishment?
Theories of Punishment
Any just system that imposes punishment must have a moral justification
Inflicting pain with no justification is not really criminal punishment (violence, terrorism)
Everyone senses the need intuititively: even children. What do children say when hit?
Why did you do that? I did / did not deserve that. Because infliction of pain requires justification
The Queen v. Dudley & Stephens: p. 48

Facts of the case
Note this is a British case no 6th amendment
Should society punish them?

Under a Utilitarian theory
What is most important goal of punishment? What did they do that was wrong in Utilitarian terms? How does one determine a sentence? Would punishing them be wrong?
Under Retributivist Theory

What is most important goal of punishment? What did they do that was wrong? Are they culpable? Do they deserve punishment? Would failing to punish them be wrong?
Reasons / Goals for inflicting punishment:
Deterrence: to prevent criminal behavior through fear of criminal punishment.
General deterrence: to deter future crimes among public at large by demonstrating (and instilling fear of) the costs it will inflict. If we know crime carries heavy price, we all have motivation to avoid criminal behavior. Specific deterrence: Goal to dissuade the particular defendant from committing future crimes by using sentence and conviction in his case to impart fear of future punishment in the criminal himself.
More reasons given for punishment:
Retribution: to seek to right the balance, restore the common good, that was upset by the
criminal act. Imposed simply because it is deserved in justice.
Rehabilitation: Seeking to improve the offenders character so he can function in society

and avoid crime. Expiation of guilt, restoration to community, reformation. Also - treatment, education, vocational training
Incapacitation: Physically prevents criminal from committing crimes through

punishment that restricts his movements, confines, or by death.
Denunciation: Those who disobey criminal laws should be held up to the

rest of society and denounced as violators of the rules that define what society stands for.
Punishment and Catholic Teaching: -The state has
a duty to protect the common good by curbing some
kinds of behavior Legitimate public authority has the right and the duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending public order and protecting peoples safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party.
- Catechism of the Catholic Church, Section 2266
Two most important theories:
Utilitarian Justifications Retributive Justifications
The Queen v. Dudley & Stephens: p. 48

Facts of the case
Note this is a British case no 6th amendment
Should society punish them?

Under a Utilitarian theory
What is most important goal of punishment? What did they do that was wrong in Utilitarian terms? How does one determine a sentence? Would punishing them be wrong?
Under Retributivist Theory

What is most important goal of punishment? What did they do that was wrong? Are they culpable? Do they deserve punishment? Would failing to punish them be wrong?
Reasons / Goals for inflicting punishment:
Deterrence: to prevent criminal behavior through fear of criminal punishment.
General deterrence: to deter future crimes among public at large by demonstrating (and
instilling fear of) the costs it will inflict. If we know crime carries heavy price, we all have motivation to avoid criminal behavior. Specific deterrence: Goal to dissuade the particular defendant from committing future crimes by using sentence and conviction in his case to impart fear of future punishment in the criminal himself.
Retribution: to seek to right the balance, restore the common good, that was upset by the
criminal act. Imposed simply because it is deserved in justice.
Rehabilitation: Seeking to improve the offenders character so he can function in society

and avoid crime. Expiation of guilt, restoration to community, reformation. Also - treatment, education, vocational training
Incapacitation: Physically prevents criminal from committing crimes through
punishment that restricts his movements, confines, or by death.
Denunciation: Those who disobey criminal laws should be held up to the

rest of society and denounced as violators of the rules that define what society stands for.
a duty to protect the common good by curbing some
kinds of behavior Legitimate public authority has the right and the duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending public order and protecting peoples safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party.
- Catechism of the Catholic Church, Section 2266
Two most important theories:
Utilitarian Justifications Retributive Justifications
Utilitarian justifications:
How does Jeremy Bentham explain?: p. 33 Goal of all law is to produce greatest happiness for the greatest number (requires maximizing pleasure, and minimizing pain).
Utilitarian Justifications:
Essentially a cost/benefit calculation By imposing some pain today on a criminal (pain is considered evil), society will avoid more pain in the future, because less crime (increase pleasure). Deterrence is primary! If the improvement of society (seen as a good) outweighs the harm done (seen as evil) to the offender, then the punishment is justified.
Utilitarian justifications:
Forward looking: doesnt care about righting past harms Assumes that all actors are rational and that they seek to maximize pleasure and avoid pain Punishment ought not to be inflicted beyond the point where it will be balanced out by societal goods.
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Benthams preserved skeleton sits in a cabinet, surmounted by a wax head in the halls of University College London. Board meeting records Jeremy Bentham, present but not voting.
Does punishment deter?
Note 1, p. 35-36
Research indicates which factors contribute to deterrence? Higher risk of getting caught or longer sentences? Why is specific deterrence problematic for utilitarians? Would utilitarians favor strategy of very long sentences for criminals to achieve a slight reduction in homicide rates? Why or why not?
Deterrence and the natural law

Considered a legitimate grounds for punishment, but it is not an exclusive or paramount basis for punishment as it is for utilitarians.
Purposes of Punishment
What is rehabilitation?
Expiation (atonement and reparation) Reformation (changing the offender) Restoration (reintegrating the offender into society)
Doubts about rehabilitation

Dressler, Note 2, p. 36 Does it work? Too costly, coddles criminals?
Punishment
Is some attempt at rehabilitation a moral imperative for just punishment?
Can Christians accept that hating a criminal is good? Stephens note p. 41. Does hatred exclude rehabilitation as goal?
Are there some who cannot be rehabilitated in a complete sense, consistent with other purposes of punishment?
Can we predict who these people are?
Purpose of Punishment
What model of punishment was C.S. Lewis criticizing?
Is a therapeutic model the same as a rehabilitative model? What model of punishment did C.S. Lewis favor? Is a retributive model compatible with a rehabilitative model?
Retributivist Justifications of punishment:
Focus on moral culpability of the actor:
Punishment is justified when it is deserved. Deserved when actor freely chooses to violate societys rules. Premised on free will; blameworthy because they could have chosen differently Looks backward (unlike utilitarians) to right the wrong committed in the past. Redistribute goods and burdens.
Retributive Rational:
Morris, Persons and Punishment, p. 42-3
Guilt is both necessary and sufficient justification for punishment If the criminal deserves punishment, it should be inflicted to deny it is an injustice. There is a fundamental right to punishment, which stems from the fundamental right to be treated as a person.
Thought Experiments
Punishing an innocent person note 3, p. 37
No retributive rationale could permit, but in some circumstances, a utilitarian could justify (how?)
Punishing a rehabilitated person

Difficult for utilitarian to accept, but could retributive system justify?
Review: Goals of punishment: Deterrence Specific & General Retribution Rehabilitation Incapacitation Denunciation
Applying the Theories

How much Punishment? People v. Superior Court (Du) p. 50 Facts - what facts did the judge find relevant in deciding on the sentence?
Were there relevant facts that the judge failed to take into account?
Was the judge more influenced by retribution or by utilitarian justifications?

Are the concerns of the victims family and community relevant in passing judgment?
Punishment
What do the U.S. Bishops add to the discussion of justifications of punishment?
What is restorative justice? What factors would this theory suggest a judge take into account in sentencing
Mrs. Du? What sentencing advice might they give the judge in Du? What is rehabilitation?
Expiation (atonement and reparation) Reformation (changing the offender) Restoration (reintegrating the offender into society)
Doubts about rehabilitation

Dressler, Note 2, p. 36 Does it work? Too costly, coddles criminals?
Punishment
U.S. v. Gemenstera, p. 59
Facts of the case and punishment imposed? On what grounds does D. object to the sentence
What are permissible purposes? Is humiliation a permissible purpose of punishment? Does humiliation serve a valid purpose of punishment? How could you argue it does not serve a permissible purpose? Counter-arguments
Punishment
Do any of the shaming examples in the footnotes or notes to the case go too far and fail to meet the objectives of punishment? What if it were shown that such public acts of humiliation were very effective at deterring crime?
What about those criminals who continue to assert they have done nothing wrong and therefore never experience remorse is humiliation helpful for them?
Proportionality of Punishment Make the punishment fit the crime. Both Retributivist and Utilitarians seek proprotionality, but for different reasons. Whats the difference? P. 66
Retribution: Kant jus talionis an eye for an eye, a tooth for a tooth. Seeking justice righting the moral order. Utilitarians: Cost/benefit analysis to achieve fewer and less serious crimes by increasing costs incrementally.
Proportionality
Eighth amendment forbids cruel and unusual punishment:
Supreme Court has held that the 8th Amendment forbids punishments which are greatly disproportional to the offense either because of their length or severity. Weems v. U.S. - (1910). What is excessive?
Death Penalty issue:

What are arguments for and against this practice from moral foundations? What is the recent teaching on the death penalty from the Catholic Church? How would these teachings influence the sentence in Coker?
a duty to protect the common good by curbing some kinds of behavior Legitimate public authority has the right and the duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending public order and protecting peoples safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party.
- Catechism of the Catholic Church, Section 2266 Compare to p. 8, bottom
Proportionality of Punishment Make the punishment fit the crime. Both Retributivist and Utilitarians seek proprotionality, but for different reasons. Whats the difference? P. 66
Retribution: Kant jus talionis an eye for an eye, a tooth for a tooth. Seeking justice righting the moral order. Too much/too little = unjust Utilitarians: Cost/benefit analysis to achieve fewer and less serious crimes by increasing costs incrementally.
Proportionality:
Coker v. Georgia p. 69
What question does this case present?

Does the 8th Amendment forbid the death penalty for the crime of rape of an adult woman as excessive and disproportionate punishment?
Holding? Death penalty for rape of adult woman violates the 8th Amendment.
The Supreme Court just accepted a case to consider whether capital punishment for the rape of a child violates the 8th Amendment.
Ewing v. California, p. 76
Holding? Reasoning? Does the 8th Amendment include a guarantee against disproportionate sentences for prison time? Why doesnt that narrow proportionality guarantee make Ewings 25-life term unconstitutional?
How does the dissent argue that this sentence is unconstitutional?

Precedent suggests this is grossly disproportionate - how do we know this? Compartive analysis Is there a special criminal justice concern with recidivism that justifies the law?
Says that there is no guarantee that Legislature wont impose life imprisonment on minor crimes unless there is a mechanism for the Supreme Court to review such laws is this true?
Modern Role of Statutes

Positive Law:
System of law promulgated and implemented by political superiors (competent authority) Usually consists of enacted laws statutes, codes, regulations applied and enforced by courts.
Blacks Law Dictionary
Introduction
Common Law
Body of law derived from judicial decisions, rather than from statutes or constitutions Body of law based on English legal system, as distinct from civil-law system
Blacks law dictionary
Introduction
Five principles, prescribing the relationship of courts to legislatures with respect to criminal law
Principle of legality:
A person may not be prosecuted under a criminal law that has not been previously published; courts should not create crimes Void-for-vagueness: Forbids wholesale legislative delegation of lawmaking authority to the courts; a criminal statute is void-for-vagueness if it fails to define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited (that is, it must provide fair notice), or it fails to establish guidelines to prevent arbitrary and discriminatory enforcement of the law
Introduction
Five principles, Continued Rule of constructive notice: Notice presumed by law to have been acquired by a person and thus imputed to that person Doctrine of strict construction: Judges should interpret a criminal statute according to its literal terms, without looking to other sources to ascertain the meaning Rule of lenity: Directs that judicial resolution of residual uncertainty or ambiguity in the meaning of a criminal statute be resolved in favor of the accused (tie goes to the accused).
Principle of Legality
Commonwealth v. Mochan, p. 88
What did Mochan do that was unlawful? What does the indictment accuse him of?
Solicited sodomy? Used persistent, lewd, filthy language heard by Mrs. Zivkovich and others Pretty vague indictment - he basically freaked this woman out by consistently calling and saying awful things.
What crime was Mochan charged with? No statute covered his conduct Pennsylvania 1101 all common law crimes continue to be an offence (this no longer in effect).
Charged with violating this statute
Was his conduct a common law crime?

Court says yes - No exact precedent required any act that injuriously affects public morality can be prosecuted An act that openly outrages decency and is injurious to public morals is a misdemeanor at common law.
Note 1 Does the holding in Mochan violate principle of legality?
Did court create a new crime?
Close question some language from common law supports, but not clearly. Problem of new technology? Phones newly prevalent
Note 2. What if legislature had passed a law with the language the court used to define the crime? Are there still problems with defining as criminal any act that is injurious to public morals?
If you were a prosecutor and Mrs. Zivkovich reported the behavior to you what would you do? Did his acts openly outrage decency and injure public morals? Vague laws are open to arbitrary interpretation.
One prosecutor might think this is a crime and another would not. Ones status as a criminal should not depend so much on personal morality of those charged with enforcing criminal law.
Introduction - Statutes
Five principles, prescribing the relationship of courts to legislatures with respect to criminal law
Principle of legality:
A person may not be prosecuted under a criminal law that has not been previously published; courts should not create crimes Void-for-vagueness: Forbids wholesale legislative delegation of lawmaking authority to the courts; a criminal statute is void-for-vagueness if it fails to define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited (that is, it must provide fair notice), or it fails to establish guidelines to prevent arbitrary and discriminatory enforcement of the law
Introduction
Five principles, Continued Rule of constructive notice: Notice presumed by law to have been acquired by a person and thus imputed to that person Doctrine of strict construction: Judges should interpret a criminal statute according to its literal terms, without looking to other sources to ascertain
the meaning Rule of lenity: Directs that judicial resolution of residual uncertainty or ambiguity in the meaning of a criminal statute be resolved in favor of the accused (tie goes to the accused).
Note 1 p. 91 Does the holding in Mochan violate principle of legality?
Did court create a new crime?
Close question some language from common law supports, but not clearly. Problem of new technology? Phones newly prevalent
Note 2. What if legislature had passed a law with the language the court used to define the crime? Are there still problems with defining as criminal any act that is injurious to public morals?
If you were a prosecutor and Mrs. Zivkovich reported the behavior to you what would you do? Did his acts openly outrage decency and injure public morals? Vague laws are open to arbitrary interpretation.
One prosecutor might think this is a crime and another would not. Ones status as a criminal should not depend so much on personal morality of those charged with enforcing criminal law.
Keeler, p. 91 Facts:
He is alleged to have beaten Mrs. Keeler and caused her child to be stillborn. Charged with murder of the child. Defendant is asking the Supreme Court to instruct the trial court that even if the facts of the charge are true, his conduct did not fall within the statutory definition of murder.
Holding:
Because an unborn but viable fetus is not a human being within the meaning of the California statute defining murder, Keeler cannot be tried for murder.
How does the Court reason to holding?
It seeks to determine legislative intent
187 Cal. Penal Cd. Murder is unlawful killing of human being with malice aforethought. Did legislature intend viable fetuses to be included within the definition of
human being?
Majoritys reasoning: At common law: how was the killing of an unborn child treated?
In 1850, a child must be born alive and then die in order to be the subject of homicide.
Why? Evidentiary problem? Some children are stillborn naturally. So its possible the D. didnt cause the death since baby might have been dead beforehand
Therefore, the legislature must have intended not to include fetuses within the murder statute. Majority says term is frozen in time in 1850, and to enlarge upon the meaning of the term would be to create a new crime
Why do we care what the legislature or common law thought about this question?
Because the statutory definition that was in use at the time of the statutes enactment controls the meaning of the statute Penal Code 6 p. 94 no action after the code takes effect will be a crime except as proscribed in this code. Giving terms new meanings is the same as creating a new offense.
Dissents argument
Legislative intent = harm sought to be avoided. Definition of human being is not static shouldnt be held to old views of quickening and presumptions based on lack of medical care. Common law gave severe punishments for killing a quickened child because it was considered a human being. Modern term for quickening is viable did leg. intend to de-criminilize Ergo, the Court would not enlarge the murder statute by including viable fetus as human being
Majority and dissent disagree about the effect of defining human being to include viable fetus
Creating a new crime (definition of human being is frozen in 1870) impermissible. Merely supplying a fair and reasonable interpretation of statute (definition is
fluid) and therefore permissible.
Would updated definition violate void for vagueness, strict construction, or rule of lenity principles of due process?
1. Did D. have notice that conduct was homicide? 2. Is dissents definition less literal or strict than Majs? 3. D. is entitled to have reasonable ambiguities in statutory language or application construed in his favor. Tie goes to Defendant.
Value of Statutory Clarity In re Banks, p. 98.
Statute says: Secretly peeping into room occupied by female person. Any person who shall peep secretly into any room occupied by a female person shall be guilty of a misdemeanor and upon conviction shall be fined or imprisoned at the discretion of the court.
On its face, what does statute prohibit?
Secret peeping into room occupied by female
How does the Court define the social harm the statute seeks to avoid (legisl. intent)?
Intentional violation of a females legitimate expectation of privacy.
How did the court arrive at this interpretation?
By applying specific definitions of peep and secretly defined in other cases.
Peep to look cautiously or slyly Secretly spying with intention of invading privacy
- Court sought not to create new crime, but to give effect to legislatures intent.
Would Banks be guilty of violating the statute if he had been spying on a male?
No, the statute and the courts interpretation both require that a females privacy
be invaded. What if there was a woman in the room, but Banks was spying on the man?
Arguably could be guilty, by violating the females privacy as part of his spying behavior.
Note 1, p. 105 What if Banks thought that the female wanted to be seen?
As statute is written, hed still be guilty As interpreted by the Court probably not guilty. He would lack the intent of violating the females legitimate expectation of privacy.
Note 2. What if he was spying on a male, but he was unaware a woman was in the room?
No he wouldnt have the necessary intention of violating the womans privacy.
What if the female was undressing in front of window facing the street, with no curtains. B. on sidewalk, notices and watches.
Not guilty. Female has no legitimate expectation of privacy in such circs as a matter of law under the 4th Amendment. (Katz v. U.S.)
Constructive Notice
Keeler Presumption that everyone has constructive notice of statutes, judicial interpretation, and common law definitions Banks also presumed to know how the state courts interpreted the terms of the peeping tom statute. Therefore the statute is not vague. Wainwright citizens presumed to know how courts interpret abominable crime against nature
City of Chicago v. Morales, p. 109
What conduct does the ordinance make illegal?
Failing to heed a dispersal order from police, after the officer has concluded that one is loitering with no apparent reason with suspected gang members.
Holding?
Such a statute violates the 14th Amendments due process guarantee because it is too vague police dont have enough guidance for its enforcement.
Count the votes on the other sections of the opinion.
City of Chicago v. Morales
Holding?
Such a statute violates the 14th Amendments due process guarantee because it is too vague police dont have enough guidance for its enforcement.
Count the votes on the other sections of the opinion.
Principles of Legality
Void for Vagueness and Morales
Do those who are subject to this law have FAIR NOTICE of the conduct made criminal?
Stevens Minority opinion no, because citizens wont know which kinds of loitering are impermissible based on officers subjective beliefs apparent purpose, suspected gang Dissent - Citizens have actual notice dispersal orders.
Does the law encourage arbitrary enforcement?

Majority Too much discretion to police discriminatory Dissent limiting guidelines are sufficient
Note 2, p. 116 Does the new ordinance satisfy the constitutional requirements?
Seems to apply only to the gang member, not to other bystanders Includes in definition of gang loitering a harmful purpose. Does it answer Stevens question How long must loiterers remain apart? Can they walk around the block and come back together?
Statutory Construction U.S. v. Foster p. 116. What does the statute say?
924c(1) carrying a gun during and in relation to drug selling or violent crime: 5 years Foster was drug trafficking and had a gun. Where was the gun? What is the issue:
Was he carrying the gun within the meaning of the statute? If so, he gets an extra 5 year sentence.
Statutory Interpretation
Two possible meanings:
To transport To bear on ones person
Where there are two possible meanings what is the task of the court?
Determining legislative intent. What did Congress intend?
Foster Majority carry means what?
What sources does majority believes support its definition?
Dictionary, literary usage, harmonizing language of statute as whole. Guidance from other statutes, other cases interpreting the term or the statute (Bailey), the harm Congress meant to address.
Dissent:
Cites contrary examples of sources used by Kozinski to come to different interpretation. Main argument narrow definition of carry does not achieve Congresss goal in the statute
Goal? Muscarello states it as: to persuade criminals to leave their guns at home.
Supreme Court Muscarello Adopts the dissents view To carry is interpreted broadly to include transport.
Dictionary: primary meaning includes transport Usage: literary, common newspaper. Special meaning of carry for guns does not exclude the primary meaning. Both are ok. Legislative intent: to combat lethal combination of drugs and guns. Persuade perps to leave gun at home.
Actus Reus
Introduction:
Actus Reus Wrongful deed comprising the physical component of a crime Generally must be coupled with a mens rea to establish criminal liability
Mens Rea the specific state of mind the prosecution must prove the defendant had when committing a crime
Most crimes: Actus Reus + Mens Rea (except strict liability offenses)
Introduction
Generally actus reus is the behavior or physical components prohibited in a crime, including:
A voluntary act That causes Social harm
Can also include any attendant circumstances required by the statute for the behavior to constitute a crime.
Actus Reus
Example p. 126: Actus Reus focus can include:
1. Voluntary ACT: Physical components of persons actions
Pick up a gun, aim at B, pull trigger
2. Social HARM
Can include both the harm of the conduct (dangerous behavior) and/or harm of the result (the death of the victim). Even if no one is hurt, society is harmed by the dangerous behavior.
3. Often we mean BOTH

CONDUCT (voluntary physical actions), which CAUSED, HARM (injury to a legal interest protected by the criminal law)
Actus Reus
Definitions:
Social Harm harm that justifies punishment. The loss experienced by discrete victim, if any, and the tangible and intangible harm to society. Attendant Circumstances A condition that must be present, in conjunction with prohibited conduct, in order to constitute the crime. It is part of the actus reus
Actus Reus
Result Crimes
Seek to prevent a particular harmful result murder, eg, seeks to avoid death of a person. If no one dies, there is no murder.
Conduct Crimes
Seeks to avoid harmful (dangerous) behavior, even if no tangible harm results in each instance
Driving while intoxicated involves a broader understanding of harm. Can also include intangible harms.
Actus Reus
Martin v. State, p. 127
What actus reus is forbidden by the statute?
1. Appearing in public place 2. Manifesting drunken conduct
Attendant Circumstance while intoxicated or drunk Other attendant circs public place, one or more persons present.
Actus Reus
Martin Is the statute aimed at averting a conduct actus reus, or a results actus reus? The social harm to be punished is conduct, no need to demonstrate a particular harmful result -Holding - Can Martin be prosecuted under this statute? - Why not?
He was not shown to have committed one of the necessary acts. A voluntary appearance in a public place is presupposed in the statute.
Acts
Martin: prosecution failed to prove D. voluntarily performed an act. What is anact?
Common Law A deed. Something done or performed. Model Penal Code 1.13(2) A bodily movement whether voluntary or involuntary.
Voluntary Acts
Martin given this understanding of acts, did Martin act to appear in a public place where one or more person is present?
No he did not perform any act relating to this element. He was picked up and carried outside by another party. Note this is not an involuntary act, it is no act at all. Compare arm came up during seizure = involuntary act. Arm lifted by another no act at all by
Voluntary Acts
Voluntary Act under common law?
Any act that is done by design or intention:
Voluntary act implies willed or volitional behavior by the actor More than just self-generated physical movement eg. sleepwalking, reflex responses, seizures (involuntary acts, because not willed).
Involves the use of the MIND, not just the use of the nervous system or brain.
Voluntary Act
Model Penal Code 1.13 voluntary no definition, see 2.01 2.01 examples of acts that are not voluntary are instances of movement not a product of the effort or determination of the actor
Means the same thing as common law
Act
Model Penal Code:
2.01 MPC and many modern criminal statutes have a voluntary-act rule
Excludes punishment for mere thoughts Bars liability for purely involuntary conduct A person is not guilty of an offense unless his conduct includes a voluntary act or the omission to perform an act of which he is physically capable.
Voluntary Act
State v. Utter, p. 129
Holding?
Insufficient evidence to present the issue of defendants unconscious state at time of crime If there had been sufficient evidence (e.g. a witness) what would the jury be required to decide?
Voluntary Act
What does court mean when it says: an act that is unconscious is not really really an act?
Court equates act with voluntary act This can be confusing. Unconscious act is really an involuntary act. He acted, but didnt choose act. Courts and statutes often use different definitions interchangeably.
Voluntary Act
What does court mean when it says: an act that is unconscious is not really really an act?
Court equates act with voluntary act This can be confusing. Unconscious act is really an involuntary act. He acted, but
didnt choose act. Courts and statutes often use different definitions interchangeably.
Voluntary Acts
INVOLUNTARY Act - multiple meanings;
Broad sense we mean actor is not blameworthy
Committed act under duress, coercion. Eg. Child is kidnapped, mom obeys wrongful commands (crime) to save her child. Her action still would be voluntary acts within meaning of Utter one still chooses to do the thing, even if under great pressure.
Narrow sense More technical

No act of will involved at all. This is the meaning used by criminal law in determining actus reus.
Acts
Note 3 p. 127-8 Why would a defendant prefer acquittal based on lack of a voluntary act (automotism) rather than on grounds of insanity?
Less stigma attached; may not require civil commitment hearing Prosecutor bears burden of proof proving Ds voluntary act beyond reasonable doubt
Defense has burden to establish insanity
Voluntary Act
Note 6, p. 133, Decina. Was Ds actus reus conduct (during an epileptic seizure) held to be involuntary?
No Court says its voluntary. How so? Actus Reus must include a voluntary act What was Ds voluntary act? Depends on the time frame determines the relevant conduct to be included in a voluntary act. Based on legislative intent, harm the statute is aimed at. Entering and driving the car was relevant voluntary act Knowledge of his propensity for seizures satisfies mens rea of recklessness.
Voluntary Act?
A is jealous of B for dating her boyfriend.
A drives car directly at B and kills her A waves a loaded gun at B, which discharges accidentally and kills B. A drives car in distracted rage, does not see B, strikes and kills B. A has a heart attack while driving, rendered unconscious, hits & kills B.
Voluntary Act?
5. A drives car while drowsy, but doesnt pull over. Shortly thereafter, she falls asleep, hits B and kills her. 6. A drives car and is drowsy, pulls over for a nap. She leaves the car on for heat. Startled awake, her arm hits the gear shaft into drive, and she hits and kills B.
Voluntary Act
Note 7, p. 133 A plants drugs in Bs purse to avoid detection. How would Model Penal Code deal with prosecution? 2.01(4)
Possession is a voluntary act
If knowingly procured or received Aware of control of thing long enough to terminate possession In this case the act is failing to dispossess oneself of the drugs once one is aware of their presence.
Omissions
People v. Beardsley p. 134. - Can Beardsley be held responsible for victims death?
Based on conduct? Based on omission?
Holding: Since Beardsley was under no legal duty to render aid, his failure to help Blanche was not a criminal omission
Omissions
Note 2, p. 137 As a prosecutor could you argue that Beardsley should face criminal liability for an omission:
1. Statute imposes duty 2. Status relationship 3. Assumption of contractual duty 4. Voluntarily assumed the care of another, and so secluded the helpless person as to prevent others coming to her aid 5. Person creates the risk of harm to another
Omission
Compare 2 scenarios:
V is drowning in the ocean. D, nearby, swims to Vs aid. As a result, other good samaritans who were on their way to help, go about their own business. At the last minute, D decides not to help V. V drowns. The same scenario, except that D is the only person in Vs vicinity.
In this case, D hasnt done anything to make Vs situation worse.
Omissions
Why doesnt the law generally punish omissions? (Notes 4-6, p. 139)
Harder to determine culpability Difficult line-drawing Intervention sometimes makes things worse No affirmative harm imposed too intrusive to our notion of liberty to require beneficial acts
Omissions
Distinguishing Acts from Omissions:
Barber v. Superior Court p. 140 What act is required for murder, according to the court? unlawful killing I.e. not justified or excused
Is Euthanasia unlawful killing?
Why werent Drs liable for death of Barber 1. care withdrawal = omission
2. Drs had no legal duty to provide disproportion-ate care when family agreed to withdrawal.
Actus Reus and Social Harm

Two types of offenses:
Result Crime: law punishes unwanted outcome (e.g. a death in a criminal homicide) Conduct Crimes: law punishes specific dangerous behavior (e.g. DUI) However, both the conduct and the result may be punished by a single crime (eg homicide using an automatic weapon). Both punish harms to society
Social Harm
Sometimes important to be able to identify the various elements in a statute: p.146
It is an offense to drive an automobile in an intoxicated condition. Mens rea Actus reus conduct Actus reus result Attendant Circumstance It is an offense to drive an automobile in an intoxicated condition. Mens rea
Actus reus conduct Actus reus result Attendant Circumstance
Mens Rea
Mens Rea defined Generally: The state of mind the prosecution must prove that a defendant had when committing a crime. Two senses of the term
Broad (culpable) sense: guilty mind, morally culpable state of mind, without specifying further. Actor is guilty if he performs actus reus with any morally blameworthy state of mind Narrow (elemental) sense: mens rea is the specific mental state required by the definition of the offense
Why require mens rea (guilty mind) for a criminal conviction?

Utilitarian?
Deterrence may be ineffective if person does not understand wrongness of actions One who causes harm accidentally may not need punishment or penal correction But couldnt we benefit society and deter dangerous conduct by punishing all who act to harm, regardless of their guilt?
Retributivist rationale for mens rea requirement

Commitment to individual choice Morally unjust to punish those who accidentally (didnt choose to ) cause social harm Guilty verdict means stigma from community as a whole unjust to impose and deny liberty to those who acted without culpable state of mind
Natural Law Rationale:

Criminal punishment deprives the criminal of what he gained in his criminal act.. viz. the exercise of self-will and free choice. Thus, there is no justification for punishing an evil act unless the actor exercises his self-will and free choice in so acting.
John Finnis, Natural Law and Natural Rights, p. 263
Mens Rea
Regina v. Cunningham, p. 149.
Facts Holding on Appeal?
Trial court erred in its jury instructions on the required mens rea for the offense, because the judge incorrectly instructed the jury that if the defendant had merely acted wickedly he possessed the requisite malice.
Mens Rea
Malice the mens rea required in Cunningham can be defined in 2 ways:
Broad/culpable approach: Any morally blameworthy state of mind, wickedness generally Narrow/modern: Malice requires either Intent to commit the actus reus the social harm of the offense Reckless commission of the actus reus (social harm) of the offense. Excludes: negligence or a blameworthy state of mind that is unrelated to the social harm that is addressed in offense that is charged.
Mens Rea
In Cunningham the trial court applied which understanding of malice, broad or narrow?
Broad/culpable malice means wicked How do we know D. was wicked in relation to the charged crime?
D. caused the poison to endanger the victim while committing a theft (that is, while possessing a blameworthy state of mind.)
Mens Rea
Appellate Court applies the narrow/modern approach to malice
Defendant must have either intentionally or recklessly caused the social harm proscribed by the statute.
According to the court in Cunningham, what is the definition of recklessness? Can inadvertent conduct constitute reckless conduct (Note 4, page 151)?
No Recklessness requires advertent conduct Recklessness requires a foreseen, not merely a foreseeable, risk Cunningham may in fact have acted recklessly here, but the jury was improperly permitted to convict on the basis of an erroneous jury instruction
Mens Rea
People v. Conley, p. 151
Statutory language in Conley:
Aggravated battery: A person who, in committing a battery, intentionally or knowingly caused great bodily harm, or permanent disability, or disfigurement commits aggravated battery. Battery: A person commits a battery if he intentionally or knowingly without legal justification and by any means (1) causes bodily harm.. Or (2) makes physical contact of an insulting or provoking nature to an individual.
Break down the aggravated battery statute at issue in Conley

A person who, in committing a battery, (1a) intentionally or (1b) knowingly (1a) causes great bodily harm, or (1b) permanent (i) disability or (ii) disfigurement commits aggravated battery.
Mens rea Actus reus conduct Actus reus result Attendant circumstance
Mens Rea
In Conley, what did the prosecution have to prove with respect to Ds mens rea?
That D intentionally struck V (did the act that caused the harm to)? That D intended V to suffer the specific qualifying social harms (mucosal mouth etc)? That D intentionally or knowingly caused the social harm proscribed by the statute (int/knwlgly caused GBH/permanent disability)?
Mens Rea
Option 3 is correct!
The prosecution must prove the mens rea specified in the statute itself (either explicit or implicit) no more is required, no less is sufficient.
It appears that the prosecution argued it only had to prove option 1 that D intentionally struck V. The court rejects this.
Mens Rea
Court says jury could find Conley had the requisite mens rea, even if he denies he intended the harm how so? How did the prosecution establish?
Proof was based on the permissive inference The permissive inference used is that a person intends the natural and probable consequences of his voluntary and intentional actions In other words, mens rea may be deduced from proof of the defendants conduct
Mens Rea
Definitions
Inference: A conclusion reached by considering other facts and deducing a logical consequence from them Permissive inference: An inference that a trier-of-fact is free to accept or reject from a given set of facts Presumption: A legal assumption that a fact exists, based on the known or proven existence of some other fact or group of facts; a presumption normally shifts the burden of production or persuasion to the opposing party
Mens Rea
Voluntary Act versus mens rea.
Mens rea: actors state of mind regarding the social harm of the offense Voluntary act relates to the act that caused the harm
What if Conley could show that, while he was very angry at OConnell, he suffered a seizure and the blow that struck the victim was a result of seizure? What if he showed that another person shoved his arm into OConnells face?
Mens Rea
Transferred Intent: Notes 4-5 p. 149-151
What is Transferred intent?
Intent that has been shifted from the originally intended wrongful act to the wrongful act actually committed D shoots at A, intending to kill A. D misses and kills B instead. May D be convicted of an intent to kill murder Yes D is equally culpable and society is equally harmed
Mens Rea
D shoots at A, intending to kill A. D misses and destroys As front
window. May D be convicted of intentionally destroying property?

No statute prohibits intentional destruction of property, which is not present here. Transferred intent doctrine does not permit transferring the intent to cause one social harm to the actual causing of another kind of harm.
Mens Rea
INTENT many meanings in common law and statutes.
Common law and common statutory definitions often include both of the following in intent (as we saw in Conley)
Specific Intent The intent to accomplish the precise criminal act with which one is later charged; to act with a conscious purpose of accomplishing a result or engaging in a conduct. Knowledge: - A conscious awareness that a given result is practically certain to be caused by ones conduct.
Mens Rea
Intent:
Note: Under the common law, the state of mind required for specific intent offenses can be satisfied by the following mens rea:
Specific intent (as defined above) Knowledge Wilfulness (usually) Purposely
Mens Rea
Common law and common statutory definitions: General Intent a morally blameworthy state of mind, usually taking the form of either:
Recklessness (actual awareness of risk, and culpable taking of the risk), or Negligence (blameworthy inadvertance) or Wickedness (under traditional common law approach) NOTE: under common law, the state of mind required for general intent offenses can be satisfied by any of these
Mens Rea
Note 6, p. 151-152: Specific/General Intent Different jurisdictions mean different things with the terms. Three approaches:
1. General intent = broad, culpable mens rea (as above)
Specific intent = express mental state in definition of crime
2. Specific intent = intent or knowledge

General intent = a lesser mens rea; say reckless or negligent,
3. Specific intent understood as requiring a further showing of a special
mental state (contd)
Mens Rea
Specific intent in (its third meaning) requires the state to show a special mental element such as:
An intention to commit a future act
Burglary: Break and enter with intent to commit felony
Proof of special motive

Offensive contact with intent to cause humiliation
Proof of awareness of attendant circumstances

Eg- sale of pornography to a person known to be under 18
Mens Rea
How do you know which sense of these terms to use in your jurisdiction?
First, must know that there are different understandings of the terms, in order to be alert. Second, knowing the differences that exist, attempt to discern from the context and usage which of the meanings are intended. (in reality ask practioners!) Third hope you are in a state that has adopted most of the Model Penal Code into your statutes
P. 152 Are the following specific intent or general intent crimes? (in the third sense)
Common law larceny
Must show special motive or purpose Specific
Common law rape

No mens rea expressed, but NOT strict liability. A general blameworthy intent to do wrong suffices
Intentional receipt of stolen property, with knowledge that it is stolen

- Specific awareness of attendant circumstance is required specific intent Common Law Burglary - Requires intent to commit future act that is not part of the actus reus of the offense Specific intent
Proving Culpability
Model Penal Code Approach - 2.02 (p. 980) Applies the narrow/elemental approach to mens rea.
The prosecution must prove the actor possessed a particular state of mind when the actor committed each material element of the crime as specified in the statute. Four distinct types of criminal mens rea: purposely knowingly recklessly negligently
Proving Culpability
MPC 2.02 (p. 980) Purposely: a person acts purposely with respect to a material element of an offense when
(i) if the element involves the conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
Proving Culpability
Knowingly: a person acts knowingly with respect to a material element of an
offense when (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves the result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
Proving Culpability
Recklessly: a person acts recklessly with respect to a material element of an
offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. Risk: of a nature and degree (considering nature, purpose, circumstances known to him), its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actors situation
Proving Culpability
Negligently: acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct The risk must be of such a nature and degree that the actors failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable
person would observe in the actors situation
Proving Culpabilty
The note from pages 153-154 is an official commentary that accompanies and explains the way the model code is to be interpreted.
It mentions: Common law intent often included both purpose and knowledge the MPC separates them out. Recklessness differs from knowledge because the risk one is aware of creating is less than substantially certain to come about.
Proving Culpability
Negligence differs from recklessness
Because negligent actor is not aware of the substantial and unjustifiable risk he is creating, whereas the reckless individual is aware of the risk but takes it anyway.
Proving Culpability
Problem 1, p. 156 J. wanted to kill V. He drove his car at a high rate of speed into V. while she was holding X, their infant son. J. fervently hoped that X. would survive the collision. Car struck V and X killing both instantly.
Under MPC what mental state as to V? X?
Purposely as to V Probably Knowingly as to X (both suffice for murder)
Proving Culpability
Under common law what mens rea as to each?
(Note 2, pages 153): For result crimes, intent ordinarily is defined to include not only those results that are the conscious object of the actor (MPC purposely) but also those results that the actor knows are virtually certain to occur from his conduct, even if he does not want them to occur (MPC knowingly) Both V and X were killed intentionally
Proving Culpability
Roberta despised modern architecture. So R decided to burn down Sams modern residence. R didnt want S to die, whom she knew was inside the house, so R tossed salt over her shoulder immediately before she torched the residence. R. was genuinely convinced this
would protect S from all harm. Much to her surprise S burned to death. With what MPC mental state R kill S
Proving Culpability
Issue: Was the risk caused by Rs conduct advertent (reckless) or inadvertent (negligent).
Probably negligently If R was genuinely convinced that the salt would protect S, she would not be aware that her conduct was risky. Arguably recklessly: R was aware of the risk to S before throwing the salt. Might constitute sufficient awareness to establish recklessness
Proving Culpability
What if R. was not sure the salt over the shoulder would protect Sam, but she was optimistic it would?
Recklessly She was only optimistic (but not convinced) that S would be protected by the salt over the shoulder. Thus, the risk was advertently created.
Proving Culpability
Knowledge of Attendant Circumstances State v. Nations, p. 161
Issue: Under Missouri law, can prosecution convict a defendant for endangering the welfare of a child without showing that he actually knew the child was under age?
Holding: No. Prosecution failed to prove the requisite mens rea because awareness of a high probability of childs age does not satisfy statutes requirement that he actually know the child was under seventeen years old.
Statute: A person commits the crime of endangering the welfare of a child if he knowingly encourages, aids or causes a child less than 17 years old to engage in any conduct which causes or tends to cause injury to the childs welfare Mens Rea Actus Reus Conduct Actus reus result: Attendant circumstance:
B. Proving Culpability
Breakdown the statute in Nations
A person commits the crime of endangering the welfare of a
child if * * * he knowingly (1a) encourages, (1b) aids or (1c) causes a child less than seventeen years old to (1) engage in any conduct which (a) causes or (b) tends to cause * * * injury to the childs welfare.
Mens rea Actus reus conduct Actus reus result Attendant circumstance
Proving Culpability
What does the Missouri Criminal Code require for a person to act knowingly with respect to an attendant circumstance?
P. 162- 562.016.3 acts knowingly with respect to attendant circumstances when he is aware that those circumstances exist. Requires actual knowledge
Proving Culpability
Under the Model Penal Code what are the two ways a person can act knowingly with respect to an attendant circumstance? 2.02(2)(b)(i) ;
Actual knowledge aware circumstances exist
2.02(7)
Wilful blindness deliberate ignorance - aware of a high probability of its existence, unless he actually believes it does not exist. Very similar to reckless awareness of a high risk of facts existence
Proving Culpability
Assume Nations asked the girl for ID, and G said she was 18, but did not have any ID with her. Could N have been found guilty under deliberate ignorance theory of knowledge under MPC 2.02(7)?
Depends on the facts
Yes, if N was aware of high probability that G was under 17, UNLESS N actually believed G was over 17. Was G credible, look, act over 17? Etc.
Proving Culpability
Why cant Nations be found guilty under Missouri law?
Statute requires actual knowledge Principle of legality requires adherence to statutory mens rea requirements, even if actor is as culpable as one who acts with knowledge
Proving Culpability
Wilfulcommon law term - note 4, p. 166
Can mean intentionally committed the act Usually used as the mens rea of a specific intent offense: ie the Actor intentionally performed the prohibited act, in bad faith with either a wrongful motive or in violation of a known legal duty.
Its a specific intent crime, since the prosecution must show a wrongful motive or knowledge of the attendant circumstance (the legal duty).
Proving Culpability
Under the Model Penal Code what are the two ways a person can act knowingly with respect to an attendant circumstance? 2.02(2)(b)(i) ;
Actual knowledge aware circumstances exist
2.02(7)
Wilful blindness deliberate ignorance - aware of a high probability of its existence, unless he actually believes it does not exist. Very similar to reckless awareness of a high risk of facts existence
Proving Culpability
Assume Nations asked the girl for ID, and G said she was 18, but did not have any ID with her. Could N have been found guilty under deliberate ignorance theory of knowledge under MPC 2.02(7)?
Depends on the facts
Yes, if N was aware of high probability that G was under 17, UNLESS N actually believed G was over 17. Was G credible, look, act over 17? Etc.
Proving Culpability
Why cant Nations be found guilty under Missouri law?
Statute requires actual knowledge Principle of legality requires adherence to statutory mens rea requirements, even if actor is as culpable as one who acts with knowledge
Proving Culpability
Wilfulcommon law term - note 4, p. 166
Can mean intentionally committed the act Usually used as the mens rea of a specific intent offense: ie the Actor intentionally performed the prohibited act, in bad faith with either a wrongful motive or in violation of a known legal duty.
Its a specific intent crime, since the prosecution must show a wrongful motive or knowledge of the attendant circumstance (the legal duty).
Proving Culpability
U.S. v. Morris, p. 167.
Issue: Statute has a single mens rea but many elements. What is the prosecution required to prove with respect to one of the many elements What does Morris argue the U.S. must prove? You must prove both that I intended to access the feds computer, and also that I intended to prevent authorized use of the computer. Since I didnt intend the latter, I cant be found guilty
Proving Culpability
U.S. v. Morris 18 U.S.C. 1030(a)(5)(A)
Any person who intentionally accesses a Federal interest computer without authorization, and by means of one or more instances of such conduct alters, damages, or destroys information in any such Federal interest computer, or prevents authorized use of any such computer information, and thereby causes loss to one or more others of a value aggregating $1,000 or more during a one year period.
Proving Culpability
Breakdown the statute in Morris
Any person who intentionally (1) accesses (1) a Federal interest computer (2) without authorization, and by means of (a) one or (b) more instances of such conduct (1a) alters, (1b) damages, or (1c) destroys (3) information (4) in (5) any such Federal interest computer, or (2) prevents (6) authorized (7) use of (8a) any such computer or (8b) information, and thereby (3) causes loss to (a) one or (b) more others of a value aggregating $1,000 or more during a one year period; * * * Mens rea Actus reus conduct Actus reus result Attendant circumstance
Proving Culpability
U.S. v. Morris Must an actor intentionally damage or prevent the use of the computer?
Court tries to discern legislative intent. Courts traditionally use several methods of statutory construction discussed in Chapter 3 looking at the text, the placement of the words within the
structure of the statute, the punctuation, intervening terms.
Proving Culpability
U.S. v. Morris Morris argues:
That because the mens rea is placed at the beginning of the statute, the court should conclude that it modifies all of the verbs in the statute:
Intentionally accesses intentionally alters, damages, destroys.. Intentionally prevents authorized use
Proving Culpability
U.S. v. Morris What does the prosecution argue about the text of the law itself?
Punctuation indicates that Congress intended the mens rea to apply only to the term accesses. The further actus reus results preventing authorized use is not subject to the specified mens rea. What does the court say about this argument? Punctuation is not always sufficient to show Congressional intent.
Proving Culpability
U.S. v. Morris Court goes beyond the text of the statute to seek Congressional intent: Previous to amendment, the statute had required knowingly access and knowingly uses, modifies, destroys, etc..
By amendment, Congress eliminates the second mens rea requirement, and at the same time, changed the first mens rea term from knowing to intentionally. This indicates Congressional intent to require only that one intentionally access the computer and then caused the harm. No need to show one intentionally destroyed, prevented use of the computer, etc.
Proving Culpability
Sources of Courts decision:
Court gives weight to changes from predecessor legislation Interprets specific statutory language in context of related legislation Legislative history of the statute, including the committee reports
Proving Culpability
U.S. v. Morris, Holding
Defendants conviction is affirmed, because the evidence proved he intentionally accessed a Federal interest computer without authorization, and thereby caused damage. Prosecution was not required to prove that the defendant intentionally caused
resulting damages
Proving Culpability
U.S. v. Morris update:
The computer fraud statute has since been amended:
Five years imprisonment if D intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage. 1 year imprisonment if he intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage.
Proving Culpability
Model Penal Code Approach relating to Mens Rea: 2.02(4)
When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.
What mens rea would be required to convict Morris with respect to the damage? At least reckless do the facts support such a finding?
Proving Culpability
Note 3, p. 171: Y, an employee in a company doing business with the US government, supplies false information used by the DoD security clearance questionnaire. The employer sent the questionnaire with the false information to the Fedl agency concerned with security clearances. Y is charged with violating 18 U.S.C. 1001.
Y requests a jury instruction stating that the prosecution must prove not only that he knowingly gave false information, but also that he had knowledge that the statements were made in a matter within the jurisdiction of the United State.
Proving Culpability
Step 1: Rough break down of the statute: Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly * * * makes any false, fictitious or fraudulent statements * * * is guilty of a felony.
Mens rea Actus reus conduct Actus reus result Attendant circumstances
Proving Culpability
Whoever, in any matter within the jurisdiction of any department or agency
of the United States knowingly * * * makes any false, fictitious or
fraudulent statements * * * is guilty of a felony. Mens rea Actus reus conduct Actus reus result Attendant circumstances
Proving Culpability
Step 2: Apply 2.02(4), MPC General rule: a mens rea term modifies all actus reus terms Exception: a mens rea term does not modify an actus reus term if a contrary legislative purpose plainly appears Instant case: court concludes that exception applies, because a contrary legislative purpose plainly appears, given the placement of the mens rea term in the statute
Accordingly, Y need not have known that the statements he made concerned a matter within the jurisdiction of the United States
Proving Culpability
Given that Y need not have acted knowingly with respect to this element, what mens rea must the prosecution prove concerning this element to obtain a conviction? Step 3: Apply 2.02(3), MPC. The prosecution must prove at least recklessness with respect to all material elements for which a mens rea is not specified. Step 4: Apply 1.13(10), MPC. Defines material element as an element that does not relate exclusively to . . . . Jurisdiction
Proving Culpability
Step 5: The legislative history to 18 U.S.C. 1001 reflects that the element at issue (any matter within the jurisdiction of any department or agency of the U.S.) is exclusively a jurisdictional element. Accordingly, the prosecution:
Must prove beyond a reasonable doubt that this element exists as a matter of law and fact But it is not required to prove any mens rea with respect to this element.
Strict Liability Offenses

Introduction Strict Liability Crime defined: A crime that does not require a mens
rea element, such as speeding or attempting to carry a weapon aboard an aircraft.

Blacks Law Dictionary
Strict Liability
Strict Liability crimes are exceptions to the rule that criminal offenses require a culpable mens rea with respect to all the actus reus elements of the offense
Strict Liability
Intro: Two types of Strict Liability Offense Type 1: Public Welfare offense
(Cordoba-Hincapie: p. 172): Early examples: motor vehicle & traffic regulation; liquor laws; pure food laws, sanitation; building and factory laws. Purpose of laws: regulate complex social order, rather than punish guilty offenders Punishment must be light (usually a fine, no jail)
Strict Liability
Type 2. Strict liability element Offenses
Eliminates mens rea as to a single strict liability element but note that some mens rea element must be proven for other actus reus elements For these offenses, a particular element (usually an attendant circumstance) does not require proof of a mens rea
I.e. Statutory rape: no mens rea with respect to the girls age, but the other elements of proof require a general criminal intent.
Strict Liability
Staples v. U.S., (p. 174) Statute: It shall be unlawful for any person to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.
Issue Does the firearm statutes silence as to mens rea indicate Congress intended the offense to be strict liability as to the attendant circumstance element making gun a firearm? (I.e. firearm as defined in statute to include a machine gun)
Staples Holding: No the statutes silence does not indicate Congressional intent to impose strict liability.
To be guilty of violating the National Firearms Act requiring registration of a firearm, the prosecution must prove beyond a reasonable doubt that the defendant knew his weapon had the characteristics making it a firearm.

Staples concerns mens rea as to an attendant circumstance element. This is almost always the case in strict liability cases Note also: at issue is the gun owners ignorance of a fact; ie that his gun actually possessed the characteristics of a firearm. The mistake or ignorance did not relate to any mistake or ignorance of a law; he does not claim that he didnt know the legal definition of a firearm, or the legal requirement of registration
Strict Liability Offense

Majoritys rationale in Staples
Mens rea is the rule, not the exception Because the requirement for some mens rea is firmly embedded in our legal tradition, some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.

Majoritys rationale in Staples
What does the Court say regarding the severity of punishment in regards to determining whether this is a strict liability offense?
Severity of punishment that can be imposed is a factor in determining whether there is an implied mens rea requirement, The harsher the punishment, the more likely it is that strict liability is NOT impliedly intended. But this is NOT determinative of the question.

Majority: Defendants conduct was apparently innocent, taking it outside the category of public welfare offenses:
How does the court distinguish Ds conduct from the conduct of those held under traditional public welfare offenses?
Those handling dangerous items (ie grenades) are on notice that the burden is on themselves to learn law regarding proper handling. Here, D. didnt know his gun was of the type to make it so dangerous.
However, in Staples, the majority concluded that Congress did not
intend to impose strict liability under the public welfare theory.

Court did not think Congress intended the statute to overcome the presumption against strict liability because owning a gun is viewed as otherwise innocent behavior (unlike grenades, narcotics, explosives, etc.). Therefore, court doesnt believe Congress intended to impose strict liability. Dissents point?

Garnett v. State p. 184 Holding: Marylands statutory rape law is a strict liability offense with respect to the age of the victim, and Prosecution is not required to prove the defendant had any particular mens rea regarding age element.
Ie no mistake of age defense is allowed.

Statute:
A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person * * * [w]ho is under 14 years of age and the person performing the act is at least four years older than the victim
A person is guilty of rape in the second degree if the person engages in vaginal intercourse with (1) another person * * * (2) [w]ho is under 14 years of age and (3) the person performing the act is at least four years older than the victim Mens rea Actus reus conduct Actus reus result Attendant circumstance

Does the fact that there is no mens rea expressed in the statute mean that the offense imposes strict liability?
No strict liability is the exception and not the rule!
How does a court decide what, if any, mens rea is required with respect to the females age? Statutory Construction to discern legisl. intent:
Plain language of the statue (no m.r.) Extra-textual sources:
Other sections of the law Legislative history Traditional/common law origins of statutory rape

Garnett: How does a court decide what, if any, mens rea is required with respect to the females age? Statutory Construction to discern legisl. intent:
Plain language of the statue (no m.r.) Extra-textual sources:
Other sections of the law Legislative history Traditional/common law origins of statutory rape

Assume Garnett was tried in a MPC jurisdiction with MPC offenses. What mens rea, if any, would the D. need to possess with respect to the females age? General rule: 2.02(3) unless otherwise proscribed, the prosecution must prove at least recklessness as to all material elements for which mens rea is not specified
Provided the conduct is not a mere violation (1.04(5) & 2.05)

Exception: Under MPC 213.1(d) and 213.6(1)
Statutory rape is a strict liability crime with respect to the age of the victim if she is under the age of 10.
Mistake and Mens Rea

Mistake of Fact People v. Navarro, (p. 191)
Conviction reversed because the judge improperly instructed the jury. Defendants mistaken belief that the property was abandoned or that he had permission to take property must be honest, but need not be reasonable.
Because the actus reus element of taking requires a specific intent, the Def. lacks the requisite mens rea if his mistake is honest, even if it is unreasonable.
Generic common law based larceny statute:

Any person who, from the possession of the owner or any other person, takes by any means personal property of a value of any kind, with the intent permanently to deprive the owner of the use or benefit of the property, steals the property and is guilty of larceny. Mens rea Actus reus conduct Actus reus result Attendant circumstance

Any person who, (1) from the possession of the (a) owner or (b) any other person, takes by any means (2) personal property (3) of a value of any kind, with the intent permanently to deprive the owner of the (a) use or (b) benefit of the property, steals the property and is guilty of larceny. Mens rea Actus reus conduct Actus reus result Attendant circumstance

Under the common law, how would you characterize this mens rea? Specific Intent the actor has the intent to accomplish the precise criminal act with which he is later charged. Under the MPC, how would this mens rea be characterized? Purposely the element involves the nature of his conduct and the actors conscious objective is to engage in conduct of that nature (the purpose to deprive the owner). See 223.2

Mistake of fact defense applied to mens rea under the common law (Perkins on Criminal Law, p. 193
Type of Element Mistake that Can Negate General Intent Element Mistake must be both honest
(subjective good faith belief) and (objectively sensible) Specific Intent Element Mistake must be honest (it need not be reasonable) Strict Liability Element A mistake, even if honest and reasonable, is not a defense
reasonable

Applying mistake of fact doctrine to Navarro:
What type of offense is theft?
specific intent crime
What is exculpatory claim?

he honestly believed the beams were abandoned
What is the legal relevance of this mistake? * If believed, it demonstrates that he did not intend to steal it negates the specific intent portion of the offense, and he must be acquitted
Note 3, p. 194 How does the mistake of fact defense apply to the mens rea under the MPC?
See - 2.04. The MPC does not use the specific/general intent distinction. Each element requires 1 of 4 kinds of mens rea purposely, knowingly, recklessly, and negligently. The MPC uses the elemental approach to resolve all mistake of fact issues determine the mens rea for the element at issue, and then determine if the mistake of fact negates that particular mens rea.

Analyzing Navarro under the MPC the larceny statute requires that the actor take the property with the intent permanently to deprive the owner.
Therefore, Ns mistaken belief (even if unreasonable), if the jury believes him, negatives the intent necessary for the element and requires acquittal. N. did not act with the purpose of depriving the owner of the lumber.

Moral wrong doctrine Note 5, p. 194
Standard: An actor will not be exculpated for a mistake (even if honest and reasonable) where, if the facts had been as the actor believed them to be, his conduct would still be immoral.
Why? Because an actor demonstrates culpability or bad character by his act, even if he had a reasonable and honest mistake about an attendant circumstance. Regina v. Prince, p. 194 Legal Wrong Note 6: Same as above, but substitute illegal for immoral
Mistake
Hypo: D. is confronted by a tough looking man (T), who appears ready to mug her. D pushes him away. D later learns that T is police officer performing lawful duties. Assume Ds mistake as to Ts status was honest and reasonable. Is D guilty of battery upon a policeman under the mistake doctrine? No Battery is a general intent offense, and Ds mistake is both honest and reasonable
Is D guilty applying the moral wrong doctrine?

No Looking at the event through Ds eyes, D was defending herself against a mugger; since this would not be an immoral act, D. did not intentionally commit an immoral act Therefore, D did not assume the risk that her conduct was illegal (that she was attacking a police officer)
Mistake
How is preceding hypo distinguishable from Regina v. Prince (Note 5, p. 194)
Looking through Ps eyes, he had taken an unmarried girl from the possession of her parents, which was, according to the court, an immoral act Because P intentionally committed an immoral act, he assumed the risk that the attendant circumstance (the age of the girl) was not as it reasonably appeared to be Accordingly, under the moral wrong doctrine, P is guilty even though his mistake as to a general intent element was both honest and reasonable
What are the bases for criticizing the moral wrong doctrine?
The doctrine assumes there exists agreement about matters of morality in
our heterogeneous society
The actor may lack fair notice that his conduct is considered to be immoral If there is a general consensus in society that certain conduct is seriously immoral, that conduct should be explicitly prohibited by a statute as a crime
Legal wrong doctrine (Note 6, page 195)
As noted, this doctrine works the same way as the moral wrong doctrine, except that the term illegal is substituted for the term immoral How would the MPC handle this hypo?
MPC 2.04(2) The MPC will treat the D as if he committed the lesser offense
2. Mistake of Law People v. Marrero (p. 196)

Facts: What was Ds mistake? What is his claim on appeal?
Holding: Did the trial court err?

No Defendant is not entitled to a mistake of law instruction.
Mistake of law defense is not recognized under state criminal code except:
As to specific intent element relating to legality of conduct (Weiss); or If the mis-relied-upon law was later properly adjudicated as wrong.
Mistake of Law
General common law rule?
Ignorance of the law is no excuse
Arguments in favor of the rule

Lawlessness would otherwise be fostered The exception (mistake of law) would swallow the rule Numerous mistake of law defenses would be raised based on the misinterpretation (albeit honest and even reasonable) of statutes Mistake of law defenses could readily be contrived in bad faith, after the fact, to avoid culpability
Marrero says he reasonably relied on the words of the statute itself (ie. He acted upon a mistaken belief founded upon an official statement of the law contained in.. a statute)
Why must his contention fail?
M relied on his understanding of the statute, not the statute itself (which did not authorize his conduct) If 15.20(2) were interpreted as M argues, it would effectively mean that any mistaken personal misinterpretation of the law would be a defense Even if this is desirable, it ignores the statutory language that the mistake must be founded upon an official statement of the law
Is the outcome in Marrero fair? He tried to obey the law but is punished
Court uses a general deterrence rationale hold Marrero liable to encourage others to know and respect the law. Allowing personal misinterpretations to excuse will encourage citizens to engage in poor legal research looking for loopholes Perhaps Marrero is held liable because he is credited with knowledge that New York City has strong antipathy to guns and strict laws. So he wasnt merely surprised by true meaning of the law but had some blameworthy state of mind loopholing?

How would the MPC resolve Marrero ? General Rule - 2.02(9) Culpability as to illegality of the conduct
No need to show a mens rea as to the illegality of the conduct or existence or meaning of the law unless the definition of the offense or the code so provides. MPC starts out with general rule against a defense of mistake of law.
Mistake of Law
Exceptions to the rule (2.04)
Step 2A: 2.04(1) applies when the definition of the offense contains an element requiring knowledge, recklessness, or negligence as to the existence, meaning, or application of the law. This subsection does not apply to Marrero Step 2B: 2.04(3) permits a limited defense, even when knowledge (etc.) of the law is not an element of the offense. It does not permit a defense based on a personal misunderstanding of the law. The defendant must reasonable rely on an official statement of the law, afterward determined to be invalid or erroneous, contained in [a statute].
Mistake of Law
Note 2, p. 204 Under 2.04 would Marrero have a defense based on his sincere reliance upon his criminal justice instructors or gun dealers understanding of the law? No
2.04(3)(b): These persons were not offering an official statement of the law 2.04(3)(b)(iv): These persons are not charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense
Mistake of Law
Note 2, p. 204 Should H have been permitted to introduce evidence that the States Attorney advised him it was lawful to erect the signs?
The Court says NO Issue: Did H receive an official interpretation of the law by one with responsibility for the interpretation, administration, and enforcement of the law This turns on all the facts, and not just the status of the person providing the opinion Where did H receive the advice (at the attorneys office, during a party, at a political gathering, over martinis)? In what form was the advice provided (official opinion, office letterhead, off-hand comment)?
Mistake of Law
Cheek v. U.S. p. 206 Holding:
1.
Statutes use of the term willfully failing to file or evading payment of taxes DOES mean that D can invoke a mistake of law defense as to these duties Prosecution must prove D. actually knew he had a duty to file and pay, and must disprove Ds claim that failure to comply was based on sincere misunderstanding caused by complexity of the code.
Part III-A of decision, p. 209:

Willfully means a voluntary and intentional violation of a known legal duty.
7201 & 7203 in common law terms are specific intent offenses actor must be aware of a known legal duty. Applying an elemental analysis any mistake of law or fact that negates this element of knowledge (even if unreasonable) is a defense Therefore, D was entitled to acquittal if the jury was not convinced beyond a reasonable doubt that he knew his wages constituted income under the Code. Under such circumstances, Cheek did not willfully evade his tax obligation.
Mistake of Law
In MPC terms 202(9)
This is one of those rare cases in which knowledge as to the existence, meaning or application of the law (ie. The meaning of the term income) is an implicit element of the offense.
Under 204(1), any ignorance or mistake (even unreasonable) that negatives this element of knowledge is a defense
Causation
Causation is divisible into two parts: actual cause and proximate cause
Actual Cause: The cause without which the event could not have occurred (factual cause and cause in fact) (but-for causation) Proximate Cause: A cause that is legally sufficient to result in liability; a cause the directly produces the event and without which the event would not have occurred. Every proximate cause is an actual cause, but not every actual cause is a proximate cause.
Other terms used in causation

Intervening cause: An event that comes between the initial event in a sequence and the end result, thereby altering the natural course of events that might have connected a wrongful act to an injury; the intervening cause can be an act of God, and act of an independent third party, or an act or omission by the victim Substantial factor test: A cause is a substantial factor if it is one of two or more independent causes that, if it had occurred alone, would have been sufficient to cause the event to occur
A. Introduction
Hypo: Elmer (E), a pedestrian, is struck and killed by an automobile. Police determine that four cars, driven by A, B, C, and D, were the only vehicles in the vicinity of the accident, and that each was driven in a similarly unsafe and negligently excessive rate of speed. The police, however, cannot identify the car that struck and killed E. Since all four drivers were equally dangerous and negligent, should the three drivers who did not cause the death be treated differently than the one who did? Is your reasoning retributive or utilitarian?
A. Introduction
Retributive approach
People deserve to be punished for what they do, not for what someone else does Accordingly, a but-for causal link is required to justify punishment
Only the person who actually caused the death of E should be punished for killing E All four drivers could be punished for their negligent conduct
A. Introduction
Utilitarian approach
A utilitarian approach might be sympathetic to punishing all four drivers similarly because they might be equally dangerous, or because the punishment might encourage more careful driving
However, some utilitarians might object, since this could lead to less general security regarding ones own criminal liability.
B. Actual Cause
Oxendine v. State (page 212)
Holding:
The evidence of causation was insufficient to sustain the defendants conviction of manslaughter (court affirmed the lesser-included offense of second-degree assault) The prosecution did not present sufficient evidence in support of its theory of causation, i.e., that the second injury inflicted by the defendant accelerated the death of the victim
B. Actual Cause
Actual causation defined under the MPC
2.03(1): Conduct is the cause of a result when:
(a) it is an antecedent but for which the result in question would not have occurred; and (b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense.
Both the common law and the MPC apply a but-for test
B. Actual Cause
Actual causation applied
Under the common law and MPC, who is the actual cause of Vs death in the following scenarios (Note 2, page 216)?
B. Actual Cause
Hypo A: X intentionally stabs V in the chest. V will die from loss of blood in 15 minutes. Simultaneously, D intentionally shoots V in the leg. V would not die from this wound alone. V dies in 10 minutes.
X and D are both actual causes of the death
B. Actual Cause
Hypo B: Same as Hypo A, except D unintentionally shoots V in the leg.
X and D are both actual causes of the death Actual cause and mens rea are separate issues D may be less culpable in this hypothetical (if, say, he acted negligently rather than intentionally), but the causal connection is the same
B. Actual Cause
Hypo C: Same as Hypo A, except V dies in 15 minutes.
Only X is the actual causes of the death D did not actually cause (by acceleration or aggravation) Vs death D may nonetheless be guilty of some other crime, including attempted murder, depending on Ds intent (did D intend kill?)
B. Actual Cause
Hypo D: X stabs V. Simultaneously, D stabs V. Neither wound by itself would kill V. V dies from loss of blood from the two wounds.
X and D are both actual causes of the death V would not have died but for the actions of X, and V would not have died but for the actions of D Note the substantial factor test is not needed here (because each wound is an actual cause of death)
B. Actual Cause
Hypo E: X shoots V in the heart. Simultaneously, D shoots V in
the head. V would die instantly from either wound. V dies instantly.
X and D are both actual causes of the death Under the common law, both are causes under the substantial factor test discussed in Velazquez The MPC reaches the same result, characterizing these facts as death from two mortal blows. Commentary to 2.03(1), MPC,
C. Proximate Cause
But-for causation is too broad a standard for assigning criminal culpability Proximate or legal causation serves as a basis for determining what events that necessarily satisfy the but-for causation standard have a sufficient nexus to provide a basis for criminal guilt Issues about proximate causation often arise when an intervening force exists Proximate causation analysis is less a matter of applying hard and fast rules as it is a matter seeking to achieve beneficial public policy or justice
C. Proximate Cause
LaFave-Scott methodology [hereinafter LSM]
An approach for determining proximate causation in criminal l aw Found in Kibbe (footnote 6, page 219)
C. Proximate Cause
LaFave-Scott methodology (LSM)
Coincidental intervening cause
Defendants act merely put V at a certain place at a certain time, and because V was so located it was possible for V to be acted upon by the intervening cause Coincidence will break the causal chain only if it is unforeseeable The intervening cause reacted to the conditions created by the defendant Response will break the the causal chain only if it is both unforeseeable and abnormal
Responsive intervening cause
C. Proximate Cause
Applying LSM (and other doctrines to be introduced) to the
following selected hypotheticals, is D the proximate cause of Vs death (Note 5, page 219)?
C. Proximate Cause
Hypo A: X and V steal property from D, and they flee in a boat. D fires two shots at the boat, seeking (unlawfully) to kill or scare X and V. X, fearful of another shot, dives into the water, causing the boat to capsize. V drowns. Is D the proximate cause of Xs death?
Yes Xs conduct would not cut off Ds culpability, because Xs reaction was a foreseeable and responsive intervening cause
C. Proximate Cause
Hypo C: D and V are drug dealers on a high crime street. D attempts to rob V by drawing his pistol. V flees. D fires shots at V, but does not hit V. X, another drug dealer in the vicinity, believing that the shots were being fired at him, fires a weapon in Ds direction, striking and killing V. Is D the proximate cause of Vs death?
Arguably yes X is clearly a responsive intervening cause Is the response unforeseeable and abnormal (which is necessary to break the chain)? Abnormal means so unforeseeable as to be bizarre Arguably, Xs act is not so unforeseeable as to be bizarre
C. Proximate Cause
Omissions doctrine: An omission can never function as a superseding intervening cause, so as to relieve an earlier wrongdoer of criminal responsibility (Note 6, page 221)
Courts sometimes refuse to apply the doctrine when extreme injustice would occur The trend seems to be against the rigid application of this doctrine Note, of course, that definitional issues can arise as to whether conduct is an omission or a positive action
C. Proximate Cause
Intended consequences doctrine: Any intended act is considered to
be a proximate act (Note 7, pages 219-220)

If an intentional wrongdoer accomplishes the result he desires in the manner desired, he will not escape criminal responsibility even if the result is not achieved precisely in the way the wrongdoer intended A way of short-circuiting the LSM Typically, the intended consequences doctrine is strictly applied; thus, if A intended to kill B by poisoning him, the causation chain would be broken if B died instead from a gunshot wound
C. Proximate Cause
Hypo: M, wishing to kill V, obtained poison, which she furnished to N (Vs nurse), in the guise of medicine. M instructed N to give a spoonful (lethal dosage) to V. N did not do so, but she negligently left the potion nearby. Days later, Y, another child, discovered the potion and innocently administered to V, killing V. Is M the proximate cause of Vs death (Note 7, pages 205 06)?
C. Proximate Cause
Hypo (continued): Is M the proximate cause of Vs death?
LSM
Probably yes Ns conduct is responsive but not abnormal (and may include an omission), and Ys conduct is coincidental but foreseeable
Intended consequences doctrine

Yes M intended the result that was obtained to kill V by poisoning
C. Proximate Cause
Apparent safety doctrine: When a person reaches a position of safety, the original wrongdoer is no longer responsible for the ensuing harm (Note 8, page 206)
C. Proximate Cause
Hypo: P, Vs husband, strikes V and threatens to kill her. As a result, V leaves their rural home on a freezing night and travels by foot to her parents nearby home. Because it is late and V does not want to disturb her parents, she lies down on
the ground and goes to sleep. There, V freezes to death. Is P the proximate cause of Vs death (Note 8, pages 206)?
C. Proximate Cause
Is P the proximate cause of Vs death?
LSM
Probably no: Vs leaving her husband was probably responsive, but her going to sleep outside her parents home in the severe cold was probably unforeseeable and abnormal Apparent safety doctrine No: The outside of the home, on a cold night, was not a position of apparent safety Omission doctrine Possibly yes: If Vs failure to enter the home is viewed as an omission, then P is a proximate cause of Vs death (Ps specific crime, however, would be determined by the mens rea P actually possessed)
C. Proximate Cause
Free, deliberate and informed human intervention doctrine: A person is not held criminally responsible for resulting harm if there is an intervening cause that springs from free, deliberate and informed human action (Note 9, page 206)
The concept of free will is so important that, when a human intervenor freely chooses to act, any blame that is attached to the result of that act is shifted from the earlier wrongdoer to the human intervenor
C. Proximate Cause
Approach of 2.03, MPC to proximate causation (Note 10, pages 206 07)
But-for causation is the only strictly causal requirement; the remaining issue is the proper scope of liability based on the actors culpability Liability requires purpose, knowledge, recklessness, or negligence with respect to the result actus reus element Like the common law, the issue is one of relative remoteness (is the actual result too remote or accidental in occurrence)
C. Proximate Cause
Purpose or knowledge generally
2.03(2): When purpose or knowledge is required for culpability (a
specified material element of the offense), if the actual result is not within the actors purpose or contemplation, the culpability requirement is not satisfied (except as provided in subsections (2)(a) and (2)(b))
C. Proximate Cause
Exceptions to purpose or knowledge
2.03(2)(a): If the actual result differs from the result designed or contemplated only as to the specific person injured or property affected, or is less severe than that designed or intended, the actor remains culpable 2.03(2)(b): If the actual result is the same kind of injury or harm designed or intended, but the precise injury or harm differs or is inflicted in a different way, the actor remains culpable provided the actual harm is not too remote or accidental in occurrence to have a [just] bearing on the actors liability or gravity of the offense
C. Proximate Cause
Recklessness or negligence generally
2.03(3): When recklessness or negligence is required for culpability (a specified material element of the offense), if the actual result is not (in the case of recklessness) within the risk of which the actor was aware or, in the case of negligence, of which he should have been aware, the culpability requirement is not satisfied Same exceptions apply as in the case of purposely or knowingly
C. Proximate Cause
General observations before proceeding further
Note that in complex cases, there is rarely, if ever, a sure answer to proximate causation (or, as the MPC terms it, culpability) Courts often times seek to achieve a just result, treating the doctrines discussed as guidance rather than binding rules
With this in mind, how should the following hypotheticals be decided under common law doctrines and the MPC sections pertaining to proximate causation (Note 11, pages 207 09)?
C. Proximate Cause
Hypo A: A shoots V, with the intent to kill. Vs wound is not mortal, but he requires hospitalization. In the hospital, V is
treated by a physician (P) who is recovering from scarlet fever. V contracts the disease from P and dies from it. Is A the proximate cause of Vs death (pages 207 08)?
C. Proximate Cause
Is A the proximate cause of Vs death?
LSM
No Although P is a responsive intervening cause, a doctor afflicted with such a serious and contagious disease is probably highly abnormal and unforeseeable

No This doctrine is strictly applied, and A did not intend V die from scarlet fever
2.03(2)(b), MPC
Debatable Issue is whether the actual result too remote or accidental in occurrence to justly hold A liable
C. Proximate Cause
Hypo D: W delivers heroin to V, a friend who is visibly inebriated. V injects the heroin into his own arm. V dies moments afterwards. Is W the proximate cause of Vs death (page 208)?
C. Proximate Cause
Is W the proximate cause of Vs death?
LSM
Probably yes Vs conduct is a responsive intervening cause, that is neither abnormal nor unforeseeable
Free, deliberate and informed human intervention doctrine

2.03(2)(b), MPC
Probably not apply, as Vs intoxication was seems such as likely to negate his volition Probably yes The actual result does not seem to be too remote or accidental in occurrence
C. Proximate Cause
Hypo F: Ds, three White youths wielding bats and uttering
racial epithets and threatening remarks, chase V and other African-America youths through the streets at night. In order to escape, V runs onto a highway, where he is struck by a motorist (M) who cannot see V in the dark. Are Ds the proximate cause of Vs death (page 208)?
C. Proximate Cause
Are Ds the proximate cause of Vs death?
LSM Ye s Vs act is a foreseeable responsive intervening cause Ms act, even if negligent, is a foreseeable coincidental intervening cause Free, deliberate and informed human intervention doctrine Does not apply; Vs decision does not satisfy this doctrine Apparent safety doctrine Does not apply; at no time did V reach apparent safety 2.03(2)(b), MPC Ye s The actual result is not too remote or accidental in occurrence
Causation
Causation is divisible into two parts: actual cause and proximate cause
Actual Cause: The cause without which the event could not have occurred (factual cause and cause in fact) (but-for causation) Proximate Cause: A cause that is legally sufficient to result in liability; a cause the directly produces the event and without which the event would not have occurred. Every proximate cause is an actual cause, but not every actual cause is a proximate cause.
Other terms used in causation

Intervening cause: An event that comes between the initial event in a sequence and the end result, thereby altering the natural course of events that might have connected a wrongful act to an injury; the intervening cause can be an act of God, and act of an independent third party, or an act or omission by the victim Substantial factor test: A cause is a substantial factor if it is one of two or more independent causes that, if it had occurred alone, would have been sufficient to cause the event to occur
A. Introduction
Hypo: Elmer (E), a pedestrian, is struck and killed by an automobile. Police determine that four cars, driven by A, B, C, and D, were the only vehicles in the vicinity of the accident, and that each was driven
in a similarly unsafe and negligently excessive rate of speed. The police, however, cannot identify the car that struck and killed E. Since all four drivers were equally dangerous and negligent, should the three drivers who did not cause the death be treated differently than the one who did? Is your reasoning retributive or utilitarian?
A. Introduction
Retributive approach
People deserve to be punished for what they do, not for what someone else does Accordingly, a but-for causal link is required to justify punishment Only the person who actually caused the death of E should be punished for killing E All four drivers could be punished for their negligent conduct
A. Introduction
Utilitarian approach
A utilitarian approach might be sympathetic to punishing all four drivers similarly because they might be equally dangerous, or because the punishment might encourage more careful driving
However, some utilitarians might object, since this could lead to less general security regarding ones own criminal liability.
B. Actual Cause
Oxendine v. State (page 212)
Holding:
The evidence of causation was insufficient to sustain the defendants conviction of manslaughter (court affirmed the lesser-included offense of second-degree assault) The prosecution did not present sufficient evidence in support of its theory of causation, i.e., that the second injury inflicted by the defendant accelerated the death of the victim
B. Actual Cause
What was the governments theory of prosecution? Did the prosecution allege that Tyree (T) and Oxendine (O) acted in a complicitous relationship? Or did the prosecution proceed on the
theory that T and O acted separately?

The prosecutions theory was that T and O acted separately
B. Actual Cause
What is the significance of this theory with respect to proving causation?
Because they were alleged to have acted separately, a separate causation analysis is required for the actions of T and O If the prosecution had instead alleged that they acted in concert, it would have been sufficient to show that the victim died as the result of the acts or either or both
B. Actual Cause
Specify the separate intra-abdominal injuries inflicted upon the victim by the independent wrongdoers, T and O (when were the injuries inflicted, and were they lethal or nonlethal in character?)
Injuries inflicted by Tyree
Occurred on January 18 Injuries were lethal
Injuries inflicted by Oxendine

Occurred on January 19 Injuries were nonlethal
B. Actual Cause
How do we know about nature and lethality of the injuries? What is the source of the evidence of this in the case-in-chief?
The expert testimony of Dr. Inguito and Dr. Hameli
B. Actual Cause
Specifically, what did these experts find?
Both witnesses Dr. Inguito
Could not separate the effects of the two injuries; either or both could have caused Vs death (he was not asked whether Os injury could have accelerated Vs Found two intra-abdominal injuries (one occurring more that 24 hours before Vs death [by T], and one occurring more recently [by O])
death)
Dr. Hameli
Believed the first injury caused Vs death; he could not opine if the second injury accelerated Vs death, but he opined it aggravated the first injury
B. Actual Cause
Judge denies a motion for directed verdict of acquittal. What is the legal significance of this? What standard is applied by the judge in ruling on such a motion?
Sufficiency of Evidence: Such a motion is granted only in the absence of some evidence which, together with all reasonable inferences, could reasonably tend to establish every element of an offense The evidence is viewed in the light most favorable to the prosecution If the judge denies the motion, the trial proceeds. In this case, Ts attorney put on her defense.
B. Actual Cause
Later the court receives the testimony of Dr. Hofman, the expert witness on the issue of causation (called by the attorney representing Tyree). What did Dr. Hofman find with respect to the injuries?
Found only one injury to V, occurring approximately 12 hours before Vs death In response to a hypothetical question, Dr. Hofman opined that if there were two injuries, the second could have accelerated Vs death
B. Actual Cause
Based on all the foregoing, what evidence was presented at trial that the injury inflicted by O caused Vs death?
None
Theoretically, can two persons (or separate groups of persons) independently cause the death of one person?
Yes
How can this be done?

When the second party accelerated the process of death initiated by the first party
B. Actual Cause
In Oxendine, what other theory of causation may the prosecution had considered but abandoned (Note 1, page 214)?
T and O each inflicted non-mortal wounds, which in combination resulted Vs death In such a case, O did not accelerate Vs death Rather, O aggravated Vs injuries, so as to convert a non-lethal injury inflicted by T into a mortal outcome Under these circumstances, Os aggravation of a pre-existing injury would be a causal basis for liability
B. Actual Cause
Actual causation defined under the MPC
2.03(1): Conduct is the cause of a result when:
(a) it is an antecedent but for which the result in question would not have occurred; and (b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense.
Both the common law and the MPC apply a but-for test
B. Actual Cause
Actual causation applied
Under the common law and MPC, who is the actual cause of Vs death in the following scenarios (Note 2, page 216)?
B. Actual Cause
Hypo A: X intentionally stabs V in the chest. V will die from loss of blood in 15 minutes. Simultaneously, D intentionally shoots V in the leg. V would not die from this wound alone. V dies in 10 minutes.
B. Actual Cause
Hypo B: Same as Hypo A, except D unintentionally shoots V in the leg.
Actual cause and mens rea are separate issues D may be less culpable in this hypothetical (if, say, he acted negligently rather than intentionally), but the causal connection is the same
B. Actual Cause
Hypo C: Same as Hypo A, except V dies in 15 minutes.
Only X is the actual causes of the death D did not actually cause (by acceleration or aggravation) Vs death D may nonetheless be guilty of some other crime, including attempted murder, depending on Ds intent (did D intend kill?)
B. Actual Cause
Hypo D: X stabs V. Simultaneously, D stabs V. Neither wound by itself would kill V. V dies from loss of blood from the two wounds.
X and D are both actual causes of the death V would not have died but for the actions of X, and V would not have died but for the actions of D Note the substantial factor test is not needed here (because each wound is an actual cause of death)
B. Actual Cause
Hypo E: X shoots V in the heart. Simultaneously, D shoots V in the head. V would die instantly from either wound. V dies instantly.
X and D are both actual causes of the death Under the common law, both are causes under the substantial factor test discussed in Velazquez The MPC reaches the same result, characterizing these facts as death from two mortal blows. Commentary to 2.03(1), MPC,
C. Proximate Cause
But-for causation is too broad a standard for assigning criminal culpability Proximate or legal causation serves as a basis for determining what events that necessarily satisfy the but-for causation standard have a sufficient nexus to provide a basis for criminal guilt
Issues about proximate causation often arise when an intervening force exists Proximate causation analysis is less a matter of applying hard and fast rules as it is a matter seeking to achieve beneficial public policy or justice
C. Proximate Cause
Kibbe v. Henderson (page 217)
Holding:
Defendants murder conviction must be set aside because the trial judges instructions did not adequately address the causation requirement for second-degree murder; that is, that the defendants actions must be the the proximate cause of the victims death
C. Proximate Cause C. Proximate Cause C. Proximate Cause C. Proximate Cause C. Proximate Cause
What is the causation issue in Kibbe?
Should the intervening causes (the actions of Blake and the victim) cut off the defendants criminal liability? The judges failure to instruct adequately on causation resulted in the trier-of-fact failing to consider this important factual aspect of guilt
C. Proximate Cause
LaFave-Scott methodology [hereinafter LSM]
An approach for determining proximate causation in criminal l aw Found in Kibbe (footnote 6, page 219)
C. Proximate Cause
Defendants act merely put V at a certain place at a certain time, and because V was so located it was possible for V to be acted upon by the intervening cause Coincidence will break the causal chain only if it is unforeseeable

The intervening cause reacted to the conditions created by the defendant Response will break the the causal chain only if it is both unforeseeable and abnormal
C. Proximate Cause
Kibbe v. Henderson (page 217)
Holding:
Defendants murder conviction must be set aside because the trial judges instructions did not adequately address the causation requirement for second-degree murder; that is, that the defendants actions must be the the proximate cause of the victims death
C. Proximate Cause C. Proximate Cause

Defendants act merely put V at a certain place at a certain time, and because V was so located it was possible for V to be acted upon by the intervening cause Coincidence will break the causal chain only if it is unforeseeable

The intervening cause reacted to the conditions created by the defendant Response will break the the causal chain only if it is both unforeseeable and abnormal
C. Proximate Cause
Applying LSM, should the following intervening cause cut off Kibbes (K) criminal liability
1. Blakes (B) conduct
Is B a coincidental or responsive intervening cause? B is a coincidental intervening cause (that is, K merely put V at a certain place at a certain time, and because V was so located it was possible for him to be acted upon by B) Is B foreseeable or unforeseeable? Almost certainly B would be considered a foreseeable intervening cause
Thus, Bs conduct would not cut off Ks culpability
C. Proximate Cause
Applying LSM, should the following intervening cause cut off Kibbes (K) criminal liability
2. Vs conduct
Is Vs conduct a coincidental or responsive intervening cause? Vs conduct is a responsive intervening cause (that is, V reacted to the conditions created by K) Is Vs conduct foreseeable or unforeseeable, and is it normal or abnormal? Vs conduct was clearly foreseeable (and not abnormal) Thus, Vs conduct would not cut off Ks culpability
Under LSM, Blake is a coincidental intervening cause, and Victims acts are forseeable (or at least not an abnormal) responsive intervening cause so probably proximate causation of Ds. Under the Model Penal Code, (p. 222-223) real question is whether it would be just to hold the d for the ultimate result Probably same answer in this case. Recklessly causing death, so use 2.03 (3)
C. Proximate Cause
Hypo A: X and V steal property from D, and they flee in a boat. D fires two shots at the boat, seeking (unlawfully) to kill or scare X and V. X, fearful of another shot, dives into the water, causing the boat to capsize. V drowns. Is D the proximate cause of Xs death?
Yes Xs conduct would not cut off Ds culpability, because Xs reaction was a foreseeable and responsive intervening cause
C. Proximate Cause
Hypo C: D and V are drug dealers on a high crime street. D attempts to rob V by drawing his pistol. V flees. D fires shots at V, but does not hit V. X, another drug dealer in the vicinity, believing that the shots were being fired at him, fires a weapon in Ds direction, striking and killing V. Is D the proximate cause of Vs death?
Arguably yes
X is clearly a responsive intervening cause Is the response unforeseeable and abnormal (which is necessary to break the chain)? Abnormal means so unforeseeable as to be bizarre Arguably, Xs act is not so unforeseeable as to be bizarre
C. Proximate Cause
Omissions doctrine: An omission can never function as a superseding intervening cause, so as to relieve an earlier wrongdoer of criminal responsibility (Note 6, page 221)
Courts sometimes refuse to apply the doctrine when extreme injustice would occur The trend seems to be against the rigid application of this doctrine Note, of course, that definitional issues can arise as to whether conduct is an omission or a positive action
C. Proximate Cause
Intended consequences doctrine: Any intended act is considered to be a proximate act (Note 7, pages 221-2)
If an intentional wrongdoer accomplishes the result he desires in the manner desired, he will not escape criminal responsibility even if the result is not achieved precisely in the way the wrongdoer intended A way of short-circuiting the LSM Typically, the intended consequences doctrine is strictly applied; thus, if A intended to kill B by poisoning him, the causation chain would be broken if B died instead from a gunshot wound
C. Proximate Cause
Hypo: M, wishing to kill V, obtained poison, which she furnished to N (Vs nurse), in the guise of medicine. M instructed N to give a spoonful (lethal dosage) to V. N did not do so, but she negligently left the potion nearby. Days later, Y, another child, discovered the potion and innocently administered to V, killing V. Is M the proximate cause of Vs death (Note 7, pages 222)?
C. Proximate Cause
Hypo (continued): Is M the proximate cause of Vs death?
LSM
Probably yes Ns conduct is responsive but not abnormal (and may include an omission), and Ys conduct is coincidental but foreseeable

Yes M intended the result that was obtained to kill V by poisoning
C. Proximate Cause
Apparent safety doctrine: When a person reaches a position of safety, the original wrongdoer is no longer responsible for the ensuing harm (Note 8, page 222)
C. Proximate Cause
Hypo: P, Vs husband, strikes V and threatens to kill her. As a result, V leaves their rural home on a freezing night and travels by foot to her parents nearby home. Because it is late and V does not want to disturb her parents, she lies down on the ground and goes to sleep. There, V freezes to death. Is P the proximate cause of Vs death (Note 8, pages 222)?
C. Proximate Cause
Is P the proximate cause of Vs death?
LSM
Probably no: Vs leaving her husband was probably responsive, but her going to sleep outside her parents home in the severe cold was probably unforeseeable and abnormal Apparent safety doctrine No: The outside of the home, on a cold night, was not a position of apparent safety Omission doctrine Possibly yes: If Vs failure to enter the home is viewed as an omission, then P is a proximate cause of Vs death (Ps specific crime, however, would be determined by the mens rea P actually possessed)
C. Proximate Cause
Free, deliberate and informed human intervention doctrine: A person is not held criminally responsible for resulting harm if there is an intervening cause that springs from free, deliberate and
informed human action (Note 9, page 222)

The concept of free will is so important that, when a human intervenor freely chooses to act, any blame that is attached to the result of that act is shifted from the earlier wrongdoer to the human intervenor
C. Proximate Cause
Approach of 2.03, MPC to proximate causation (Note 10, pages 223-4)
But-for causation is the only strictly causal requirement; the remaining issue is the proper scope of liability based on the actors culpability Liability requires purpose, knowledge, recklessness, or negligence with respect to the result actus reus element Like the common law, the issue is one of relative remoteness (is the actual result too remote or accidental in occurrence)
C. Proximate Cause
Purpose or knowledge generally
2.03(2): When purpose or knowledge is required for culpability (a specified material element of the offense), if the actual result is not within the actors purpose or contemplation, the culpability requirement is not satisfied (except as provided in subsections (2)(a) and (2)(b))
C. Proximate Cause
Exceptions to purpose or knowledge
2.03(2)(a): If the actual result differs from the result designed or contemplated only as to the specific person injured or property affected, or is less severe than that designed or intended, the actor remains culpable 2.03(2)(b): If the actual result is the same kind of injury or harm designed or intended, but the precise injury or harm differs or is inflicted in a different way, the actor remains culpable provided the actual harm is not too remote or accidental in occurrence to have a [just] bearing on the actors liability or gravity of the offense
C. Proximate Cause
Recklessness or negligence generally
2.03(3): When recklessness or negligence is required for culpability (a specified material element of the offense), if the actual result is not (in
the case of recklessness) within the risk of which the actor was aware or, in the case of negligence, of which he should have been aware, the culpability requirement is not satisfied Same exceptions apply as in the case of purposely or knowingly
Causation
Velazquez v. State, p. 224
Facts?
Issue
Was Velazquez, as a participant in a drag race, the proximate cause of Alvarezs death? How does the Court analyze the question?
Holding?
C. Proximate Cause
General observations before proceeding further
Note that in complex cases, there is rarely, if ever, a sure answer to proximate causation (or, as the MPC terms it, culpability) Courts often times seek to achieve a just result, treating the doctrines discussed as guidance rather than binding rules. Its a policy question.
With this in mind, how should the following hypotheticals be decided under common law doctrines and the MPC sections pertaining to proximate causation (Note 11, omitted)?
C. Proximate Cause
Hypo A: A shoots V, with the intent to kill. Vs wound is not mortal, but he requires hospitalization. In the hospital, V is treated by a physician (P) who is recovering from scarlet fever. V contracts the disease from P and dies from it. Is A the proximate cause of Vs death (note 3, p. 226)?
C. Proximate Cause
Is A the proximate cause of Vs death?
LSM
No Although P is a responsive intervening cause, a doctor afflicted with such a serious and contagious disease is probably highly abnormal and unforeseeable
No This doctrine is strictly applied, and A did not intend V die from scarlet fever
2.03(2)(b), MPC
Debatable Issue is whether the actual result too remote or accidental in occurrence to justly hold A liable
C. Proximate Cause
Hypo D: W delivers heroin to V, a friend who is visibly inebriated. V injects the heroin into his own arm. V dies moments afterwards. Is W the proximate cause of Vs death ?
C. Proximate Cause
Is W the proximate cause of Vs death?
LSM
Probably yes Vs conduct is a responsive intervening cause, that is neither abnormal nor unforeseeable
Free, deliberate and informed human intervention doctrine

2.03(2)(b), MPC
Probably not apply, as Vs intoxication seems such as likely to negate his volition Probably yes The actual result does not seem to be too remote or accidental in occurrence
C. Proximate Cause
Hypo F: Ds, three White youths wielding bats and uttering racial epithets and threatening remarks, chase V and other African-America youths through the streets at night. In order to escape, V runs onto a highway, where he is struck by a motorist (M) who cannot see V in the dark. Are Ds the proximate cause of Vs death?
C. Proximate Cause
Are Ds the proximate cause of Vs death?
LSM Ye s
Vs act is a foreseeable responsive intervening cause Ms act, even if negligent, is a foreseeable coincidental intervening cause Free, deliberate and informed human intervention doctrine Does not apply; Vs decision does not satisfy this doctrine Apparent safety doctrine Does not apply; at no time did V reach apparent safety 2.03(2)(b), MPC Ye s The actual result is not too remote or accidental in occurrence
C. Proximate Cause
Hypo B: R stabs X eleven times, drops the knife and flees. X, mortally wounded, grabs the knife and goes in search of R. X encounters V, an innocent party, who tries to take the knife from X. X, in a state of shock from massive blood loss, stabs and kills V. Is R the proximate cause of Vs death?
C. Proximate Cause
Is R the proximate cause of Vs death?
LSM Maybe not Xs act is a criminal (responsive) intervening cause. Xs acts are probably unforeseeable and abnormal (but isnt someone in shock with a knife dangerous to others?) (Criminal acts usually considered abnormal) Free, deliberate and informed human intervention doctrine Does not apply; X is in shock, not a free choice. Court held R liable on the grounds that Xs acts were essentially involuntary. 2.03(2)(b), MPC Maybe Is the actual result too remote or accidental in occurrence ?
Causation
State v. Rose p. 227
Facts Issue:
Is there evidence to conclude that D is guilty of negligent manslaughter?
Actus Reus?
Driving? Or Failing to stop (omission)?
MR?
Did D create a substantial and unjustifiable risk that caused death?
No if V. died upon impact, probably yes if it was the omission
Causation?
It is unclear from the medical evidence when the victim died (upon impact or after being dragged). If
upon impact, then the Ds failure to stop immediately was not the proximate cause of the Vs death. If V. was already dead, the failure to stop couldnt be the proximate cause of death.
Criminal Homicide Part 1
Overview
You shall not kill. Exodus 20:13 You have heard it said of old You shall not kill: and whoever kills shall be liable to judgment. But I say to you that everyone who is angry at his brother shall be liable to judgment. Matthew 5:21-22 The murder of a human being is gravely contrary to the dignity of the person and the holiness of God. CCC 2320
A. Overview
The fifth commandment forbids direct and intentional killing as gravely sinful. The murderer and those who cooperate voluntarily in murder commit a sin that cries out to heaven for vengeance. CCC 2268
Human life is sacred because from its beginning it involves the creative action of God and it remains for ever in a special relationship with the Creator, who is its sole end. God alone is the Lord of life from its beginning until its end: no one can under any circumstance claim for himself the right to destroy an innocent human being. CCC 2258
A. The Protected Interest

People v. Eulo, p. 242 Holding?
The definition of death should be expanded to include a proper medical finding that the entire brains function has irreversibly ceased even if artificial means are able to keep the heart beating and oxygen circulating to the body. Therefore, the withdrawal of artificial life support and removal of organs based on a finding of total brain death under accepted medical criteria is not a superceding cause that can relieve D of liability for death. Does this case contradict Keeler? All 50 states now accept brain death criteria (either by statute or judicial determination).
Homicide
Case currently concerns a non-brain dead person, Navarro. Doctors allegedly gave meds to stop his heart so they could harvest his organs. Prosecutors not charging murder, but rather abusing a dependent person and wrongly administering controlled substances.
Why not murder, or at least attempted murder?
A. Overview
Year and a day rule (Note 3, page 248)
[I]n order * * * to make the killing murder, it is requisite that the party die within a year and a day after the stroke received, or cause of death administered . 4 Blackstones Commentaries
A. Overview
Purpose for the rule
To avoid undue speculation as to the cause of death
Arguments against the rule

It is now far easier to determine the cause of the death The prosecution must prove element of the offense (including causation) beyond a reasonable doubt Modern life-support technology can maintain life (however defined) well beyond 366 days
Trend
To extend time limits beyond a year and a day For example, California has recently further extended the time limit beyond 3 years (194, Cal. Penal Code)
B. Intentional Killings
Degrees of Murder: The Deliberation Premeditation Formula
Common law definitions
Homicide: The killing of one person by another Murder: The killing of a human being with malice aforethought
Malice aforethought: The requisite mental state for common-law murder, encompassing any one of the following
The intent (purpose/knowing) to kill
The intent (p/k) to inflict grievous bodily harm Extremely reckless indifference to the value of human life (the so-called abandoned and malignant heart) (super recklessness) The intent to commit a felony (which leads to culpability under the felony-murder rule)
Traditional statutory definitions
First-degree murder: Murder that is wilful, deliberate, or premeditated (in some jurisdictions, felony murder [often limited to rape, kidnapping, robbery, burglary, or arson] is also classified as first-degree murder) Second-degree murder: Murder that is not aggravated by any of the circumstances of first-degree murder; for example, murder that is intentional but is not the product of premeditation or deliberation
Degrees of Murder What difference does it make?
At the common law, murder was not subdivided; many states divided murder into degrees so as to limit the application of the death penalty Differentiating degrees of murder began in Pennsylvania statutes in order to confine death penalty to the worst kinds of murderers. Many state statutes include the distinction with different punishments meted out Most common distinction: Premeditation and deliberation.
State v. Guthrie (page 248)
Holding:
The judges instruction on premeditation was erroneous, because it confused intent with premeditation, and failed to require a finding that the intent had existed for some amount of time before the k illin g .
The challenged instruction #8 from Clifford (page 249)
to constitute a willful, deliberate and premeditated killing, it is not necessary that the intention to kill should exist for any particular length of time prior to the actual killing; it is only necessary that such intention
should have come into existence for the first time at the time of such killing, or at any time previously.
This represents the traditional, and perhaps the most typical, approach to premeditation.
Does Clifford draw any distinction between premeditation and deliberation?
No
Under Schrader, (p. 250) how long does it take for an actor to premeditate?
No measurable amount of time is required Premeditation can occur in a twinkling of an eye The intention to kill can come into existence for the first time at the time of such killing
Under formulations such as Schrader, what is the practical difference between first- and second-degree murder?
The line is thin and hard to distinguish The premeditation formulation, according to Justice Cardozo, is merely a privilege offered to the jury to find the lesser degree when the suddenness of the intent seems to call irresistibly for the exercise of mercy. Note: 2.10(2), MPC (page 1012), does not distinguish between degrees of murder
How did the prosecution in Guthrie prove that the killing was premeditated by direct evidence or circumstantial evidence?
By circumstantial evidence
D removed his gloves, started toward the victim, pulled a knife and stabbed v in neck
Schrader is typical; premeditation is rarely proven by direct evidence (e.g., a witness testifies that he heard the perpetrator utter to the victim, Having just deliberated whether I should kill you, I have decided that I will, and so now I will kill you!)
Contrast the instructions in Schrader and Guthrie to the one in People v. Morrin (Note 2, pages 251)
To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem [P]remeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate actions should be long enough to afford a reasonable man time to subject the nature of his response to a second look.
Under Morrin, can one deliberate without premeditating?
No deliberation involves measuring and evaluating the major facets of a choice or problem; premeditation merely involves thinking about it beforehand Yes one can think about a crime for a long time, but the thought process may have been disturbed by hot blood
Under Morrin, can one premeditate without deliberating?
Under Morrin, can one intentionally kill without premeditating and deliberating?
Yes intent can be formed instantly, without measuring and evaluating alternative choices
Would the defendant in Guthrie be guilty of premeditated murder under the Morrin standard?
Debatable the facts need to be better developed Did G sufficiently premeditate (i.e., did G think about killing the victim for a long enough time before acting so as to afford himself a second look)? Did G act with the cool purpose that Morrin requires (i.e., was Gs action the product of his measuring and evaluating the major facets of the choice he made)?
Compare the standard announced in State v. Guthrie, which over-ruled Schrader
Although premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation
and design This means there must be an opportunity for some reflection on the intention to kill after it is formed.
Query: How much reflection is enough reflection? Of what crime would Schrader be guilty: Under the Schrader standard? Under the Morrin standard?
Second-degree murder? In Plummer (a Michigan case), the court applied the Morrin standard to similar facts and concluded that the heated situation was not conducive to a second-look weighing of the choice of shooting and killing the decedent.
First-degree murder No time limit for premeditation is required, and deliberation has no independent significance
Under the Guthrie standard?
Debatable Did D have a sufficient opportunity for some reflection?
Lesser included offense:
In general, defendants have the right to a jury instruction that permits the jury to convict the D of an offense included within the offense charged, so long as there is some evidence upon which a jury could find the lesser (but not the greater) crime.
Ie. First degree murder includes within it the lesser crime of killing without premeditation and deliberation (second degree murder).
Midgett v. State (page 253)
Holding
The evidence was legally insufficient to convict the appellant of first-degree murder, in that the evidence failed to show that the appellant had a premeditated and deliberated purpose of causing the death of another person The evidence was legally sufficient to affirm the conviction of the lesser-included offense of second-degree murder; i.e., that the appellant caused the death of the victim by delivering a blow to his abdomen or chest with the purpose of causing serious physical injury
According to the Court, with what mens rea did the defendant act when beating the child?
With the intent of continuing to abuse him but not causing his death. Or, if there was an intent to kill it was not premeditated or deliberate, because it was formed in a drunken rage. How do other states nonetheless include such cases in first degree murder?
State v. Forrest
Holding
The evidence was legally sufficient to convict the appellant of first-degree murder, in that the evidence showed that the appellant killed the victim with malice aforethought, and with premeditation and deliberation
Murder
Helpful list of the kinds of circumstantial evidence often used to demonstrate premeditation and deliberation p. 257.
Applying the Schrader and Guthrie standards, was Forrest correctly decided? Why?
Schrader standard yes (deliberation and premeditation were clearly established) Guthrie standard yes (deliberation and premeditation were clearly established)
Applying the Schrader and Guthrie standards, was Midgett correctly decided? Why?
Schrader standard probably yes (deliberation and premeditation do not appear to have been established) Guthrie standard yes (deliberation and premeditation were clearly not established)
Poll:
In your view, who is more culpable Midgett or Forrest (see Note 3, page 258)?
Vote last year

Midgett 56.9% Forrest 43.1%
Query: Are Midgett and Forrest rare exceptions that prove the rule that first-degree murderers are almost always more culpable than second-degree murderers (the premeditation-deliberation distinction), or is there a better way of distinguishing between murderers based on their culpability? Is the MPC, 2.10(2) formulation, which does not distinguish between degrees of murder, any better?
Does the brutality of the murder including many wounds upon the victim suggest that the perpetrator premeditated (Note 2, page 258)?
Does the brutality equal premeditation?
Arguably yes
Many wounds may indicate a firm intention to kill, and that D was not satisfied with merely harming or injuring V Between the infliction of each wound, D may have had the opportunity to consider (or re-consider) and choose (again) to kill
Arguably no
Many wounds may reflect that D was acting in a frenzy, the antithesis of the cool, calm and planned homicide A single, well-placed bullet or stab wound may reflect careful planning and cool deliberation
Pragmatically
The more gruesome the murder, the better for the prosecution (reflect on your own reaction to Midgett and Forrest)
Manslaughter: Heat of Passion Killings
A. Overview
Types of Homicide Common Law

Murder
First-degree murder (by statute) Second-degree murder (by statute)
Depraved-heart murder Felony Murder Voluntary manslaughter Involuntary manslaughter Negligent homicide (by statute a minority of jurisdictions)
A. Overview
Types of Homicide Model Penal Code (210.2 210.4, at page 1022)
Murder
Purposely or knowingly (similar to first-degree murder under traditional statutes) Depraved-heart and felony murder
Manslaughter Negligent homicide (similar to one form of involuntary manslaughter under the common law)
Manslaughter: The unlawful killing of a human being without malice aforethought Voluntary manslaughter: An intentional homicide, done in the sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool Involuntary manslaughter: Homicide in which there is no intention to kill or do grievous bodily harm, but that is committed with criminal negligence or during the commission of a crime not included within the felony-murder rule (i.e., the misdemeanor-manslaughter rule)
Manslaughter: The unlawful killing of a human being without malice afterthought Voluntary manslaughter: An intentional homicide, done in the sudden heat
of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool Involuntary manslaughter: Homicide in which there is no intention to kill or do grievous bodily harm, but that is committed with criminal negligence or during the commission of a crime not included within the felony-murder rule (i.e., the misdemeanor-manslaughter rule)
Manslaughter: The unlawful killing of a human being without malice afterthought Voluntary manslaughter: An intentional homicide, done in the sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool Involuntary manslaughter: Homicide in which there is no intention to kill or do grievous bodily harm, but that is committed with criminal negligence or during the commission of a crime not included within the felony-murder rule (i.e., the misdemeanor-manslaughter rule)
Manslaughter: The unlawful killing of a human being without malice afterthought Voluntary manslaughter: An intentional homicide, done in the sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool Involuntary manslaughter: Homicide in which there is no intention to kill or
do grievous bodily harm, but that is committed with criminal negligence or during the commission of a crime not included within the felony-murder rule (i.e., the misdemeanor-manslaughter rule)
a. Common Law Principles
Girouard v. State (page 259)
Holding:
The provocation directed by the victim to the appellant (taunting words alone) was inadequate to reduce the appellants culpability from second-degree murder to voluntary manslaughter
Rules for Provocation ( p. 262)
There must been adequate provocation The killing must have been in the heat of passion It must have been a sudden heat of passion that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool There must have been a causal connection between the provocation, the passion, and the fatal act
Under the common law, what can constitute adequate provocation* (the pigeon-holes)?
Discovering ones spouse in an act of sexual intercourse
Mutual combat Assault and battery Injury to the defendants relatives or a third party Resistance to an illegal arrest
* Words alone cannot constitute an adequate provocation
Why wasnt the appellant in Girouard guilty of first-degree murder?
Passion, even if the result of inadequate provocation to reduce the offense to manslaughter, can render a killing sufficiently hot-blooded to negate deliberation
Was the homicide in Girouard second-degree murder or manslaughter? Why?

It was second-degree murder, because the provocation (words alone) was inadequate for manslaughter
Who is more dangerous, Girouard (G) or Forrest (F)?
Arguably Girouard
G responds violently to insults G has peculiar frailties that might suggest he remains dangerous It seems much more likely that G would kill again
Who is more culpable, Girouard or Forrest?

Arguably Forrest
G suffered from peculiar mental frailties that impaired his ability to act non-violently; F did not Fs violent response to events was the product of considerable deliberation; Gs was not
Note: Factors that tend to reduce blameworthiness will often aggravate dangerousness
Why did the court in Girouard hear psychiatric evidence regarding the wife? Isnt this putting the victim on trial?
This evidence might be relevant to the adequacy of the provocation, or the suddenness of the passion that was provoked Also, some view the provocation defense as treating the death of a provoker as constituting less of a social harm than the death of an innocent person
Compare the standard for the adequacy of the provocation used in Girouard and Mahar (Note 1, page 263-5)?
Girouard uses reasonable person standard; Mahar uses ordinary person standard A reasonable person presumably acts on the basis of reason, not passion; Mahar avoids the possible contradiction of these terms The Girouard standard is phrased in terms of provocation that may tend to cause reasonable persons to act from passion; Mahar similarly talks about provocation that might render the ordinary person liable to act rashly Thus, for practical purposes, the two standards would probably always mean the same thing
Why arent words alone adequate provocation under the common law (Note 2, page 264)?
Empirically, in present-day America some words alone are probably likely to cause many ordinary people to react violently The prosecution in Girouard argued that there are some concededly provocative acts that society is not prepared to recognize as reasonable; and the court agreed that social necessity [not empiricism] dictates our holding What is the social necessity to which the court refers?
Is there a bright-line temporal limit for the adequacy of a cooling off period (Note 4, page 265)?
No No precise time, in terms of hours or minutes, can be set down However, most courts will exclude from consideration events occurring months or weeks earlier
Who should decide whether enough time has passed for the defendant to cool off, the judge or the jury?
This issue is treated as a question of fact for the jury The issue concerns concerns what is a reasonable time for the defendant to cool off This varies based on a number of potential factors For example, was the precipitating injury inflicted by the victim permanent or temporary?
Hypo: Mrs. H learns her husband of 11 years is having an affair. Her husband, V, upon being confronted, compares his wife unfavorably to his mistress M, but agrees to end the affair if his wife will go on a diet and have breast implants. Mrs. H does not believe V has ended affair, and that week follows him after work to a hotel. She confronts V and M coming out of a hotel elevator with arms around each other and begins striking V, who hits H back and throws her to the ground. In the parking lot, H guns her $70,000 Mercedes and runs down V, circling to hit him perhaps twice. She claims she was only trying to ram his car, but daughter (who was in the car) reports she said I can kill him and get away with murder.
Intentional Killings
Is H guilty of Murder or Manslaughter under the standards laid out in Girouard, p. 262?
Adequate provocation?
Pigeon hole (seeing spouse in act of sexual intercourse, mutual combat, assault & battery, injury to relative, resistance to illegal arrest) or broader standard Mahar standard p. 265?
Heat of passion? Cooling off period? Causal connection between provocation, passion and causal act? Clara Harris Millionaire Murder Trial Texas statute: DOES NOT follow typical distinction between Murder and Manslaughter: 19.02 Murder:
person commits an offense if he: (1) intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or (3) commits or attempts to commit a felony 19.04 Manslaughter: (a) A person commits an offense if he recklessly causes the death of an individual.
b) A
Texas Murder Statute: 19.02

(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.
In this section: (1) "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. (2) "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
Intentional Killing
Jury found H guilty of murder, but separately found it was committed under sudden passion
Could have given 2-20 years in prison (under 10 years could have resulted in probation) Jury gave her the maximum sentence 20 years in prison.
Hypo 5 p.265 Hypo 6, p. 266
The Objective Standard: Who is the Reasonable Man?
Generally
To reduce murder to manslaughter, the defendant must have killed in response to provocation calculated to inflame the passion of a reasonable man, or which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or refection, and from passion, rather than judgment
What is meant by a reasonable or ordinary man? Although it is an objective standard, to what extent does this term include the subjective characteristics of the defendant?
Stages at which the defendants subjective characteristics can be considered in a provocation case (Note 1, page 278)
In deciding whether the defendant in fact was provoked to lose his self-control In measuring the gravity of the provocation to the reasonable person In assessing the level of self-control to be expected of . the reasonable person
Clearly, the defendants characteristics can be considered as to Stage 1 (this is a subjective question) The extent to which these characteristics can be considered for Stage 2 and Stage 3 is more problematic
Manslaughter Provocation
A.G. for Jersey v. Holley, p. 271 Holding?
The Court of Appeals was wrong when it concluded that the Trial Judge erred in instructing the jury on provocation. The Appeals court relied on an incorrect statement of the doctrine of provocation set out in Morgan Smith, which incorrectly held that a jury should consider the defs characteristics in considering the level of self-control (stage 3) to be expected of him. The self-control issue is properly judged by a reasonable man standard.
Intentional Killings
Issue: How to apply changes to law of provocation included in Homicide Act of 1957 (p. 271)
The older standard (Bedder) was only objective The Homicide Act now allows words alone to be considered adequate provocation To what extent does the new Act authorize jurors to incorporate characteristics of the defendant into the reasonable man standard? Courts in U.S. wrestle with same question
With respect to Stage 2 (gravity) and Stage 3 (self-control), what is Lord Diplocks standard as announced in Camplin?
A person having the power of self-control to be expected of an ordinary person of the sex and age of the accused [Stage 3], but in all other respects sharing such of the accuseds characteristics as [the jury thinks] would affect the gravity of the provocation to him [Stage 2] (page 271) Thus, Lord Diplock draws the Stage 2 versus Stage 3 distinction, and believes the jury should only take a persons age and gender into consideration in Stage 3 (a youth lacks the self-control of an adult)
Morgan Smith Is the person with severe depression held to the same standard as an ordinary person?
No the jury should apply the standard of control to be expected of that
particular person. (p. 274)
With respect to Stage 2 and Stage 3, what Lord Clydes (p. 275) opinion about the proper direction of jury?
The standard of reasonableness should refer to a person exercising self-control over his passions which someone in his position is able to exercise and is expected by society to exercise including all his relevant particular characteristics
Whats the difference between Lord Diplocks opinion in Camplin (summarized top of p. 274) and the Morgan Smith opinion?
At stage 3 (re: self control) Lord Diplock says only consider sex and age of the defendant, but no other particular characteristics. At stage 3 in Morgan Smith, consider all characteristics eg level of self-control of a reasonable severely depressed individual. Why does the Court in Holley say Lord Diplock is correct and Morgan Smith wrong?
Because statute requires objective reasonable man standard and policy problems what problems?
Subjectivity and the reasonable man standard
Stage 2 (Gravity of the Provocation): The reasonable man or person is not unusually susceptible to provocation, nor is he overly sensitive or defensive Stage 3 (Level of Self-Control): The reasonable man or person possesses ordinary self-control; he is not pugnacious or overly excitable; he is sober Age and gender should be considered, as appropriate, in assessing provocation with respect to Stage 2 and Stage 3 The subjective characteristic at issue must be logically relevant in order to be considered Courts are generally more inclined to consider subjective characteristics for Stage 2 than for Stage 3 Courts differ as to what other characteristics and attributes can be considered with respect to these stages
Hypo 1: D is on crutches. V provocatively pushes D. D responds by killing V. To which, if any, of the three stages is Ds subjective characteristic (on crutches) relevant? Is this adequate provocation?
Stage 1 (provocation in fact)?
Yes (this is measured subjectively)
Stage 2 (gravity of the provocation)?

Probably yes (i.e., the reasonable person who is on crutches) (this is a relevant characteristic, and it is readily ascertainable)
Stage 3 (level of self-control)?

No (persons on crutches, as a class, do not possess less than objectively reasonable self-control)
Hypo 2 (assume words alone can be sufficient): G, an Aboriginal tribesman, kills S because S persisted in talking mans talk in front of women and children, which constitutes a sacrilege. To which, if any, of the three stages is Gs subjective characteristic (Aboriginal tribesman) relevant? Is this adequate provocation (Note 4, page 279)?
Stage 1 (provocation in fact)? Yes Stage 2 (gravity of the provocation)? Maybe (is there a reasonable Aboriginal tribesman?) Stage 3 (level of self-control)? Doubtful (it seems unlikely that Aboriginal tribesmen, as a class, possess less than objectively reasonable self-control; if even they do, should this matter?)
Would you reach a different result than you did in the last hypo (Hypo 5) in the case of Mohammad Ismail Abequa (M), a naturalized American born in Jordan, who strangled his wife W because she wanted to raise the kids the way she liked [and] rejected [Ms] requests to come to Jordan. Assume M could introduce testimony to show that in his culture, Ws non-cooperative attitude would be considered a grave provocation (Note 3, page 273)? Assuming you distinguish between Hypo 5 and this case, upon what culturally neutral basis (if any) do you draw that distinction?
Provocation and MPC

Model Penal Code approach: Manslaughter
210.3 (b) a homicide committed under influence EMED for which there is a reasonable explanation or excuse, determined from p.o.v. of person in the actors situation under the circumstances as he believes them to be. Why didnt this help Casassa? (p. 281)
The court held that there was not reasonable explanation or excuse for his extreme disturbance Note that MPC has no defined set of adequate provocations but there must be a
reasonable explanation for the EMED
C. Unintentional Killings: Unjustified Risk Taking

Depraved-heart murder Involuntary manslaughter Negligent Homicide
A. Overview
Murder
A. Overview
Types of Homicide Model Penal Code (2.10.2 210.4, at page)
Murder
C. Unjustified Risk Taking

Depraved-heart murder: A murder resulting from an act so reckless and careless of the safety of others that it demonstrates the perpetrators complete lack of regard for human life; i.e.,
extreme or super recklessness. This is sufficient for finding of malice aforethought at common law. Also known as abandoned-heart murder and malignant-heartmurder.

Involuntary manslaughter: Homicide in which there is no intention to kill or do grievous bodily harm, but that is committed with either
Criminal negligence, or During the commission of a crime not included within the felonymurder rule (i.e., the misdemeanor-manslaughter rule)

Involuntary manslaughter: Homicide in which there is no intention to kill or do grievous bodily harm, but that is committed with either
Criminal negligence, or During the commission of a crime not included within the felonymurder rule (i.e., the misdemeanor-manslaughter rule)

Whats Criminal negligence?
The mens rea required for common law involuntary manslaughter Its gross or culpable negligence More than the tort standard of ordinary negligence Courts sometimes focus on: 1. Greater risk; 2. Subjective awareness of risk; or 3. Both.

Another definition (a statutory crime recognized in a minority of jurisdictions)
Negligent homicide:
Homicide resulting from the careless performance of a legal or illegal act in which the danger of death is apparent although not perceived by the defendant (a failure to exercise ordinary caution) Negligent homicide is not recognized under the common law Note: Do not confuse this typical form of negligent homicide with negligent homicide under the 210.4, MPC, which requires gross negligence

Depraved-heart, abandoned-heart, or malignant-heart murder

Malice aforethought: The requisite mental state for common-law murder, encompassing any one of the following:
the intent to kill the intent to inflict grievous bodily harm extremely reckless indifference to the value of human life (the so-called depraved, abandoned or malignant heart) the intent to commit a felony (which leads to culpability under the felony-murder rule)

Malice aforethought: The requisite mental state for common-law murder, encompassing any one of the following:
the intent to kill the intent to inflict grievous bodily harm extremely reckless indifference to the value of human life (the so-called depraved, abandoned or malignant heart) the intent to commit a felony (which leads to culpability under the felony-murder rule)

Berry v. Superior Court (page 292)
Issue: Is there sufficient evidence for a murder charge?
Would a person of ordinary caution or prudence be led to believe and conscientiously entertain a strong suspicion that defendant acted with an abandoned and malignant heart? Take the legal standard from Benitez, p. 2

Jury instruction from Benitez:
Malice (for murder charge) may be implied: When the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death or When he does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows the that his conduct endangers the life of another and who acts with conscious disregard for life. Is there evidence from which implied malice could be found?

Do you believe the evidence received at the preliminary hearing proves beyond a reasonable doubt that B is guilty of second-degree murder? Actus reus (the acts or omission)
What was his act or omission? Social harm concerns the result; i.e., that the victim is dead

Does the evidence prove beyond a reasonable doubt that B is guilty of second-degree murder? Mens rea (the state of mind)
What mens rea can be inferred from Bs conduct? Is it sufficient under the standard in Benitez Bs conduct leaving his pit bull tethered next to his house (allegedly to protect marijuana being cultivated), with no obstacle to prevent access to the dog, although the B knew that it was bred as a fighting dog and that his neighbor had four young children. Evidence of training the dog for fighting, knowledge of the dogs special biting capability, aggressiveness

Does the evidence prove beyond a reasonable doubt that B is guilty of second-degree murder? 3. Causation
Actual causation (but-for causation): clearly established Proximate causation:
Vs conduct: was it responsive or coincidental, and was it unforeseeable
and/or abnormal? Does Vs conduct invoke the free, deliberate and informed human intervention doctrine?

The rest of the story:
Berry was convicted of involuntary manslaughter, keeping a mischievous animal, keeping a fighting dog, and cultivating marijuana His convictions were affirmed on appeal Reported case does not indicate the sentence he received

Consider the phrase high probability of death, as used with respect to depraved-heart murder (see Note 2, page 295)? Does this mean more than a 50 percent probability of death?
No
What, then, is the precise percentage for the probability of death? More than 33 percent? More than 10 percent? Some other number?
There is no quantifiable percentage of probability

How is this high probability measured with respect to depraved-heart murder?
Hypo 1: D puts a single round in a six-shooter, spins the chamber, points the weapon at V, and shoots and kills V, not intending to kill V but only to scare him. Depraved-heart murder, even though there was less than a 17% chance of death Hypo 2 (Note 2, p. 290): V is critically ill. Doctor D performs dangerous experimental surgery on V, with Vs consent, in order to save Vs life. V dies as a result of the surgery. Not depraved-heart murder, even if there was greater than 50% a chance of death

In light of the preceding Hypos, what is the standard for
measuring high probability of death as this relates to depraved-heart murder?

Standard: Assuming the existence of the subjective appreciation of the risk, a much-less-than-probable chance of death may constitute murder if there was no justification for the risky conduct

Under the MPC, what would the prosecution have to prove regarding Berrys state of mind to obtain of conviction for depraved-heart murder and manslaughter (Note 3 p. 295-6)?
Depraved-heart murder (210.2(1)(a)), like the common law, requires super recklessness; i.e., extreme indifference to the value of human life Manslaughter (210.3(1)(a)), unlike the common law, can be established by ordinary recklessness Accordingly, depraved-heart murder and manslaughter can stand in relation to each other as greater and lesser-included offenses, respectively

Common-law involuntary manslaughter
Involuntary manslaughter: Homicide in which there is no intention to kill or do grievous bodily harm, but that is committed with criminal negligence or during the commission of a crime not included within the felony- murder rule (i.e., the misdemeanor-manslaughter rule) Manslaughter under the MPC (210.3(1)) No distinction between voluntary and involuntary manslaughter Committed either recklessly, under the heat-of-passion, or because of extreme mental or emotional disturbance

Negligence generally: The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; inadvertent risk taking Recklessness: Conduct whereby the actor does not desire harmful consequence but nonetheless foresees the possibility and consciously takes the risk; recklessness involves a greater degree of fault than negligence but a lesser degree of fault than intentional wrongdoing; advertent risk taking

Gross negligence:
A substantial departure from the standard of care that a reasonably prudent person would have exercised in a similar situation; the failure to exercise even that care that a careless person would exercise Although some courts equate gross negligence to recklessness, the better and more prevalent definition is that the conduct is inadvertent, and differs from ordinary negligence only in degree and not in kind Gross negligence if sometimes used interchangeably with criminal negligence and culpable negligence

State v. Hernandez (pages 297)
Holding:
The judge erred to the prejudice of the defendant by admitting evidence of drinking slogans found in the appellants vehicle, because they were irrelevant to the charge of involuntary manslaughter based on criminal negligence, and would tend to cause the jury to convict the appellant because he was the type of bad person who would commit the crime charged

What distinguishes the state of mind required for depraved-heart murder (Benitez) from the state of mind (criminal negligence) required for involuntary manslaughter (Hernandez) (Note 1, page 301)?
Both offenses require the actor engage in unjustifiably risky behavior Depraved-heart murder (Benitez) requires advertence and a complete disregard for human life (super recklessness) Involuntary manslaughter (Hernandez) does not require advertence (inadvertence can suffice); it instead requires gross negligence

Assume the prosecution charges D with depraved-heart murder, but can only prove that D was reckless (i.e., a mens rea that is less culpable than a depraved heart but is more culpable than gross negligence). Of what form of homicide would D be guilty?
A form of homicide requiring recklessness, assuming this is recognized in the jurisdiction (such as manslaughter under the MPC) If this form of homicide is not recognized, then homicide requiring gross
or criminal negligence (see the next slide)

2.02(5), MPC provides:
When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely. In other words, under the MPC, if you prove the greater mens rea, you necessarily have proven the lesser mens rea The same rule applies generally to common law and positive law jurisdictions

Was Judge Shrum (dissenting in Hernandez) correct in stating that the three drinking slogans were relevant to the States case of manslaughter?
Slogans: Reality is for those who cant stay drunk; The more I drink, the better you look; I only drink to make other people more interesting Per curiam rationale: [T]he defendants knowledge of the effect of alcohol on him was not an issue, because the essence of manslaughter is the defendants lack of awareness of the risk to others from his conduct
Is per curiam opinion correct?

For criminal or gross negligence
The prosecution is not required to prove the defendant was actually aware of the hazards (the result) of driving while intoxicated on this occasion (e.g., killing or injuring others) The prosecution is required to prove the defendant was aware of the attendant circumstances (e.g., the effect of alcohol on motor coordination) that would put the reasonable person on notice of the hazards of his conduct
Proof of the defendants awareness of the effects of alcohol generally, as evidenced by the three slogans, thus seems relevant in a negligent case

Poll: Who is more culpable, the defendant in Hernandez (the drunk driver) or Berry (the dog owner)?
For those who voted for Hernandez, did the drinking slogans have any impact
on your decision? For those who voted for Berry, did the fact that the dog was protecting marijuana plants have any impact on your decision? This illustrates why prosecutors want to find a way to introduce evidence that reflects poorly on the defendants character

State v. Williams (page 301)
Holding:
The appellants conviction for involuntary manslaughter is affirmed, because the evidence establishes that the appellants were negligent in failing to provide reasonable medical treatment for the child victim under their care, and that this negligence was the proximate cause of the childs death

What is the mens rea that is required for involuntary manslaughter in Williams?
Under the Washington statute that applies is this case, simple negligence, not gross negligence, is required This is the mens rea typically required for negligent homicide in jurisdictions that have this offense

Operative dates with respect to proximate causation
The baby victim (V) was ill from September 1 to September 12 (the date of death) [finding of fact binding unless clearly erroneous] V could have recovered if V had received medical treatment between September 1 to September 5 (expert testimony of Dr. Gale Wilson apply legal sufficiency standard [light most favorable to the prosecution, resolving credibility issues against the appellant])
C. Unjustified Risk Taking C. Unjustified Risk Taking C. Unjustified Risk Taking C. Unjustified Risk Taking C. Unjustified Risk Taking
Hypo: The same facts as Williams, except assume that a reasonable
person would not have known until September 10 that V was in need of medical care, and Ds did not actually know that V needed medical care. Would Ds be guilty of negligent homicide under the Washington state standard?
Probably not Ds omission of seeking medical care seemingly would not have been the actual cause of Vs death By the time a reasonable person would have been aware of the risk (September 10), it would have been too late to save Vs life However, Ds might be the actual cause of Vs death if their omission on September 10 accelerated Vs death

Based on the finding that Ds in Williams were guilty of ordinary negligence in Vs death, of what form of criminal homicide would they be guilty under the MPC (Note 1, page 280)?
None Under 2.02(2)(d), MPC, the term negligence (as used in 210.4 and elsewhere) equates to the common law gross or criminal negligence The MPC does not recognize any form of homicide based on simple negligence

Query: Should the Williamses have been treated as criminals? Should an offense of negligent homicide be recognized? Why (Notes 2 and 3, pages 280 82)?
What are the utilitarian considerations? What are the retributive considerations? Are these circumstances where society should blame in a civil sense without stigmatizing in a criminal sense?
Criminal Homicide Part 3
Questions
D. Unintentional Killings: Unlawful Conduct
Felony murder
A. Overview
Murder
A. Overview
Types of Homicide Model Penal Code (2.10.2 210.4, at page 1022)
Murder
D. Unlawful Conduct
Felony murder: Murder that occurs during the commission of a felony, especially a serious felony Involuntary manslaughter: Homicide in which there is no intention to kill or do grievous bodily harm, but that is committed with criminal negligence or during the commission of a crime not included within the felony- murder rule (i.e., the misdemeanor-manslaughter rule)
D. Unlawful Conduct
Felony murder: Murder that occurs during the commission of a felony, especially a serious felony
Involuntary manslaughter: Homicide in which there is no intention to kill or do grievous bodily harm, but that is committed with criminal negligence or during the commission of a crime not included within the felony- murder rule (i.e., the misdemeanor-manslaughter rule)
D. Unlawful Conduct
What will be covered
The Felony-Murder Doctrine in Its Unlimited Form The Policy Debate Limitations on the Rule
The Inherently Dangerous Felony Limitation The Independent Felony (or Merger) Limitation Killings in the Perpetration or in Furtherance of a Felony Agency Theory
D. Unlawful Conduct
1. The Felony-Murder Rule
a. The Doctrine in Its Unlimited . Form
D. Unlawful Conduct
People v. Fuller (page 311)
Holding: The state felony-murder statute, 189, California Penal Code, applies to an unintentionally caused death that occurred during a high-speed automobile chase following the commission of a nonviolent, daylight burglary of an unattended locked motor vehicle
D. Unlawful Conduct
The statutes at issue in Fuller
189, California Penal Code
All murder which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or [lewd acts with a minor], is murder in the first degree. Every person who enters any vehicle when the doors of such vehicles are locked, with the intent to commit larceny or any other
459, California Penal Code
felony is guilty of burglary.
D. Unlawful Conduct
Under the statute in Fuller, what mens rea must be proven for felony-murder if the death is caused by the perpetration or attempted perpetration of a predicate felony?
Prosecution has to prove the requisite mens rea for the predicate felony No mens rea need be proven with respect to the death of the victim Therefore, with respect to the result actus reus (the death of the victim), felony murder is a strict liability offense Express malice, a depraved heart, recklessness, or even simple negligence need not be proven with respect to the death of the victim
D. Unlawful Conduct
Hypo: Same facts as Fuller, except assume the doors of the van from which the tires were stolen had been shut but unlocked. Would Ds have been guilty of first-degree murder (Note 1, page 312)? Why?
No 459, California Penal Code, Ds would not have been guilty of the burglary, the predicate felony This Hypo illustrates the arbitrariness of the felony-murder rule that opponents of the rule criticize These critics would argue that Ds culpability and dangerousness would remain the same, yet the crime for which Ds could be convicted would dramatically differ
D. Unlawful Conduct
b. The Policy Debate
Felony murder is a controversial crime Justifications for the felony-murder rule vary and are often criticized We will discuss the arguments in favor of and in opposition to the felony-murder rule in the context of the cases that follow
D. Unlawful Conduct
What are the most plausible rationales for the felony-murder rule?
Deterrence (either to deter negligent or accidental killings during the commission of felonies, or to deter the dangerous felonies themselves) Transferred or constructive intent (implied malice the intent to commit the felony is transferred to the killing)
Retribution (the felony establishes the actors evil mind; the resulting acts deserve punishment commensurate with their harmful result) Condemnation (reinforces the value of human life, expresses solidarity with victims, and provides expiation) General utility (provides clarity, optimizes the allocation of judicial resources, and minimizes the utility of perjury)
D. Unlawful Conduct
What are the most persuasive arguments against the felony-murder rule?
Anachronism: Left over from days when all felonies were capital offenses, before mens rea doctrine fully developed. Doesnt deter: Mainly works to punish accidental killings which cant be deterred. No showing that dangerous felonies are deterred by rule. Retributively out of balance: General culpability has been rejected for murder, focus on punishing for what was chosen, not accidents Transferred intent doesnt make sense: Culpability for burglary not the same as for murder.
D. Unlawful Conduct
The MPC and felony murder
210.2(1)(b) provides that criminal homicide constitutes murder when it is committed recklessly under circumstances manifesting extreme indifference to the value of human life Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape Thus, under the MPC, felony murder is categorized as a type of depraved-heart murder
A. Overview
Murder
Depraved-heart murder Felony Murder Voluntary manslaughter
Involuntary manslaughter Negligent homicide (by statute a minority of jurisdictions)
A. Overview
Types of Homicide Model Penal Code (2.10.2 210.4, at page 1022)
Murder
D. Unlawful Conduct
Felony murder: Murder that occurs during the commission of a felony, especially a serious felony Involuntary manslaughter: Homicide in which there is no intention to kill or do grievous bodily harm, but that is committed with criminal negligence or during the commission of a crime not included within the felony- murder rule (i.e., the misdemeanor-manslaughter rule)
D. Unlawful Conduct
Limitations on the Rule
D. Unlawful Conduct
The Inherently Dangerous Felony Limitation
People v. Howard (pages 321 - 328)
Holding:
Appellants conviction for second-degree felony murder is reversed, because the crime of evading a police officer in willful or wanton disregard for the safety of persons or property is not an inherently dangerous felony, which is a necessary predicate for felony murder under state law
D. Unlawful Conduct
Critical language in 2800.2(b) and 12810 upon which the court is relying
willful or wanton disregard for the safety or property of others includes any flight from an officer during which the motorist commits three traffic violations that are assigned a point count under section 12810. Section 12810 gives points for driving an unregistered vehicle owned by the driver, driving with a suspended license, driving slightly over 55 mph on a highway when no other speed limit is posted.
D. Unlawful Conduct
The court says the rule deserves no extension beyond its required application. What is the main purpose and limitation of the rule?
As dissent notes (p. 325) the rule serves to further deterrence Felony-murder rule encourages felons to commit their offenses without unnecessary violence Accordingly, elsewhere the Cal. Court has said, if a felony is not inherently dangerous in the abstract, the felony-murder rule will not deter the felon because he will not anticipate the possibility of an injury or death resulting from his misconduct
D. Unlawful Conduct
Assuming the deterrent premise for the felony-murder rule as expressed by the California Court makes sense, does this reasoning actually apply to the circumstances of that case?
Wouldnt applying the felony-murder rule to cases like Howard send the message that if youre going to flee from police you had better do so safely
D. Unlawful Conduct
Under what other theory we have studied could the prosecution have charged murder?
The facts might support a charge of depraved heart murder (super recklessness, creating an unjustified and high risk of death)
Why would prosecution have favored F.M.?

The State need only prove the intent to commit the predicate felony in order to get a murder conviction
D. Unlawful Conduct
Would the prosecution have had any difficulty proving super-recklessness (a depraved heart) in Howard?
As reflected in Benitez (pages 294), California seems to require proof of the actors subjective awareness of the probability of causing death How could prosecution seek to establish an implied subjective awareness of the probability of causing death using the facts in Howard?
D. Unlawful Conduct
Problem 6: D gave birth to V. Shortly after birth, D went on drug binges. During these periods she placed V in a walker and propped a bottle of formula up on the walker for the baby to feed. She didnt hold or change the baby for days. V died at 52 days. Charged with felony murder. The predicate felony is child neglect. Statute on p. 327-8. Is this offense an inherently dangerous felony?
D. Unlawful Conduct
Is child neglect, as defined by this statute, an inherently dangerous felony in the abstract?
No the child could be 17 years old. Neglect of clothes could be non-life endangering.
Was the child neglect imposed upon V by D actually dangerous, using the facts of the case approach? Why is the concept of an inherently dangerous felony viewed in the abstract by courts in some states?
Yes neglecting to feed and care for a newborn is a dangerous felony (the court in this case used this approach and D was convicted).
Because anytime a person dies in the course of a felony, that felony is actually dangerous
D. Unlawful Conduct
iii. The Independent Felony (or .
Merger) Limitation
People v Robertson (page 328)
Holding:
The appellants conviction for felony murder is affirmed, because the predicate felony (discharging a firearm in a grossly negligent manner) does not merge into the homicide (that is, the predicate felony is not an integral part of and included in fact in the homicide)
Merger Doctrine
What is the debate between the majority and the dissent about?
The majority says that D had an independent felonious purpose for negligently firing the gun (scaring away the thieves) The dissent says that the purpose of firing the gun was the same intent as assault with a deadly weapon which always merges into a killing.
Also discusses the anomalies this decision will cause.
D. Unlawful Conduct
Hypo: D comes home to find his wife engaged in an act of adultery with V. In a rage, D stabs V to death. What offense has D committed?
Voluntary manslaughter
Is voluntary manslaughter a felony?

Yes
Therefore, since Vs death occurred during the commission of the felony, is D guilty of felony murder?
No at least at some level, the merger limitation upon felony murder is needed (otherwise, every lesser homicide would constitute felony murder)
D. Unlawful Conduct
What is the rationale of the independent-felony limitation?
It is premised on deterring life-endangering conduct in the performance of a felony If the actors felonious purpose is to commit violence upon the victim, then the felony-murder rule cannot provide an incentive to a felon to perform his felonious purpose in a safe manner On the other hand, if the actor has an independent felonious purpose (e.g., to take anothers property), deterrence might cause him to go about his purpose in a non-assaultive fashion
D. Unlawful Conduct
In a state that applies both the merger doctrine and the inherently dangerous felony limitation, what type of felony remains within the scope of the felony-murder rule?
Many of the most inherently dangerous felonies would drop out because they would merge into the homicide Many of the felonies that involve an independent felonious purpose would drop out because they are not inherently dangerous Accordingly, a state that applies both limitations will likely end up eliminating many of the most and the least dangerous felonies
D. Unlawful Conduct
iv. Agency theory & Killings in the Perpetration or in Furtherance of a Felony
State v. Sophophone (pages 327-330)
Holding:
The death of the co-defendant was within the res gestae of the crime, but The appellants conviction for felony murder is reversed because the death of the decedent (lawfully killed by a police officer) cannot be attributed to the defendant through agency
D. Unlawful Conduct
Rule: In order for a homicide to be committed in the perpetration of the felony or in furtherance of a felony for purposes of the felony-murder rule, the homicide must be within the res gestae of the initial felony and emanate[] therefrom Res gestae defined: The events at issue, or other events contemporaneous with them
D. Unlawful Conduct
Temporal & Causation aspects of this doctrine
The in furtherance of modification of felony-murder rule applies to some deaths that occur after a felony is committed or attempted; thus, some accidental ensuing deaths are encompassed within this doctrine But, the in furtherance of modification requires that there be a causal link between the felonious nature of the conduct and the death (i.e., some
notion of proximate causation); thus, some accidental contemporaneous deaths are not encompassed within this doctrine
D. Unlawful Conduct
Why does the court hold that D is not guilty of the death of his co-defendant even though it occurred during the res gestae of the crime?
This court, like most states, applies the agency theory in felony murder cases Accomplices derive their liability from the primary party (the person who kills) on agency theory Because the primary party in this case (the Officer) was an antagonist of the Ds, and the shooting was justifiable (not criminal) the D could not derive any criminal liability under an agency theory.
D. Unlawful Conduct
The players:
A and B co-felons D innocent by-stander or police officer E robbery victim
Hypo 1: During the the robbery of E, A accidentally shoots and kills D. Are A and/or B guilty of felony murder for Ds death?
A yes (felony murder as the shooter) B yes (felony murder derivatively from the liability of A (his agent))
D. Unlawful Conduct
The players:
A and B co-felons D police officer E robbery victim
Hypo 2: During the robbery of E, D justifiably shoots and kills A. Is B guilty of felony murder for As death?
B no (because D is an antagonist to B and is not guilty of anything, B cannot derive any liability for the killing via an agency theory)
D. Unlawful Conduct
The players:
A, and B co-felons D police officer E robbery victim
Hypo 3: During the robbery of E, E accidentally shoots and kills D. Are A and/or B guilty of felony murder for Ds death?
A and B no (because E is their antagonist and not guilty of anything, A and B can derive no liability for the killing via an agency theory)
Criminal Homicide Capital Murder Part 5
E. Capital Murder
Historical Overview
At common law, murderers received an automatic death sentence, subject to the sovereigns prerogative of mercy During Americas early history, murderers were likewise subject to an automatic death sentence Where murder was divided into degrees, first-degree murder was punished by death and second-degree murder by life imprisonment During the 19th century, most American jurisdictions abandoned the mandatory death sentence for murder, and left the discretion to choose between death and imprisonment to the court or the jury
E. Capital Murder
Furman v. Georgia, 408 U.S. 238 (1972)
All discretionary death penalty statutes then in effect violated the Eighth Amendments prohibition of cruel and unusual punishment Nine separate opinions by the justices (232 pages) Brennan and Marshall always unconstitutional Douglas, Stewart, and White unconstitutional as applied, because it was imposed arbitrarily and capriciously Burger, Blackmun, Powell and Rehnquist (dissenting) whether capital punishment should be retained is a question for Congress and state legislatures
E. Capital Murder
After Furman
Standardless discretionary death penalty was unconstitutional, but little guidance on how to fix Some states created mandatory death sentences for some circumstances
Woodson struck these down (p. 349)
Some states added standards and procedural safeguards to their death penalty laws, but left the judge or jury some discretion Some of these statutes were reviewed in five 1976 opinions, including Gregg v. Georgia (pages 342-349)
Capital Murder
Gregg v. Georgia, p. 342 Holding:
Capital punishment does not violate the 8th amendment where specific procedures guide the discretion of the fact finder
Capital punishment is not per se cruel and unusual Capital punishment serves some penological goals and is therefore not gratuitous
E. Capital Murder
Greggs progeny reflects a continuing tension between two fundamental but often competing values
The sentencers discretion must be narrowly guided by criteria to avoid arbitrary and capricious decision But death penalty sentencing must be individualized to ensure that this punishment is imposed only in circumstances where the sentencer determines that it is actually deserved
Capital Murder
We saw in Coker v. Georgia (p. 69) the court finding that death penalty for rape of adult woman was unconstitutionally disproportionate under the 8th amendment Recently, the court found (5-4) execution of murderers who were under 18 at time of crime to be cruel and unusual. Roper v. Simmons Court said it used same method as in Coker looked for objective indicia of a national consensus against the practice.
E. Capital Murder
Death Penalty Statistics Generally
Death penalty is legal in 38 states, the federal government, and the military As of Dec. 31, 2004, there were 3,314 on death row From 19762006, 1,036 persons have been executed From 1973-2001, 99 people have been released from death row with evidence of their innocence From 1976-2001, method of execution is 595 by lethal injection, 149 by electrocution, 11 by gas chamber, 3 by hanging, and 2 by firing squad*
* Note that some states authorize more than one method
E. Capital Murder
Race, Gender, and Age
Of those executed, 57% are White, 35% are Black, and 7% are Hispanic Over 80% of the capital cases involve White victims; nationally, 50% of murder victims are White Executions for interracial murders since 1976: White def/Black victim 11; Black def/White victim 167 As of Jan 1, 2002, there were 54 women on death row; this constitutes 1.46% of the total death row population; since 1976, 8 women have been executed As of Jan 1, 2002, there are 83 inmates on death row who were under 18 at the time of their crimes; this constitutes 2.24% of the total death row population; since 1976, 18 of these inmates have been executed
E. Capital Murder
The Death Penalty and Catholic E. Capital Murder
Death penalty and the common good
. Teaching
[T]he common good is better than the particular good of one person. So, the particular good should be removed in order to preserve the common good. But the life of certain pestiferous men is an impediment to the common good which is the concord of human society Therefore, the ruler of a state executes pestiferous men justly and sinlessly in order that the peace of the state may not be disrupted [I]f a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good, since a little leaven corrupteth the whole lump (I Cor. 5:6). St. Thomas Aquinas, SUMMA THEOLOGICA II, II, Q. 64, art. 2
E. Capital Murder
Traditional Catholic teaching

The state has the authority to impose the death penalty in furtherance of the common good and justice. The death penalty was supported as furthering several goals of punishment:
Retributive goals (only death can right the balance of murder) Deterring other premeditated homicides (both specific and general) Incapacitation preventing this person from ever harming another. Seen as furthering respect for the sanctity of human life, by punishing those who violate it death.
E. Capital Murder
Evangelium Vitae was issued in 1995
The death penalty ought not be used except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today, however, as the result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent. In any event, [i]f bloodless means are sufficient to defend human lives against an aggressor and protect the public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.
E. Capital Murder
Teaching of Evangelium Vitae was incorporated into the final version of the Catechism, issued in 1997
Assuming that the guilty partys identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor. If, however, non-lethal means are sufficient to defend and protect peoples safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.
E. Capital Murder
Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm without definitively taking away from him the possibility of redeeming himself the cases in which the execution of the
offender is an absolute necessity are very rare, if not practically non-existent.
CATECHISM OF THE CATHOLIC CHURCH, Section
2267
E. Capital Murder
How has Evangelium Vitae and the Catechism changed Catholic teaching on the death penalty?
The state has authority to impose the death penalty The death penalty is not intrinsically evil there are conditions in which it is morally right to use The conditions under which the death penalty may be rightly exercised seem much more restrictive: inability to effectively incapacitate the criminal seems to be only rationale. (But the texts are slightly ambiguous)
E. Capital Murder
The Catechism, the death penalty, and theories of punishment applied
(inferences rather than direct) Although the primacy of the retributive purpose of punishment is affirmed generally, redress of disorder is not an acceptable basis for the death penalty Even if the death penalty deters, deterrence is excluded as a basis for the death penalty As for rehabilitation, reformation (as well as repentance) of the criminal is a paramount objective of punishment, and the death penalty takes away the possibility of reformation Absent extraordinary circumstances, society can protect itself by the incapacitation of the criminal through bloodless means
E. Capital Murder
Prudential considerations, the death penalty, and the culture of death
In the context of our culture of death, the death penalty is not seen as an affirmation of innocent life, but rather as another expression that human life is disposable, that human beings have a right to kill, and that some lives are less useful or worthy of dignity The death penalty is another way of concentrating power with the state, which recognizes no moral authority higher than itself and permits or even promotes abortion, euthanasia, stem-cell research, and other activities that disparage life
E. Capital Murder
So, consistent with the Catechism and Evangelium Vitae, when is the death penalty necessary?
Hypo 1: Henry Brisbon (p. 350) brutally murders several people during Furman hiatus. Gets 3,000-4,000 years. Same year, kills another inmate, gets death penalty. On death row gets 2,000 disciplinary violations, assaults guards, seriously injures another inmate. How could he effectively be restrained? Is such restraint a violation of human dignity? Hypo 2: A murders V during a period of civil unrest or rebellion, which compromises the states ability to keep A securely imprisoned. May A receive a death sentence?
Are there other situations that might satisfy this standard?
E. Capital Murder
1. The Constitutional and Policy
Does capital punishment deter?
Is the purported deterrent effect of capital punishment a retributive or utilitarian justification for imposing it?
Utilitarian
. Debate
E. Capital Murder
Is the deterrent argument in favor of capital punishment premised on specific or general deterrence?
Mainly general deterrence Capital punishment proponents argue the death penalty provides general deterrence, in that it discourages others from committing the same or similar crimes The death penalty also incapacitates the specific offender, preventing him from offending again
E. Capital Murder
What factors might influence the effectiveness of the deterrence function of Capital punishment?
It depends on the potential murderer Deterrence presupposes a rational actor, who weighs costs versus benefits and does not act out of passion
Capital punishment could possibly deter those who deliberate and calculate (e.g., contract killers) Capital punishment could also possibly deter some actors by threatening them with the only additional cost possible for criminal misconduct (e.g., an inmate already sentenced to life imprisonment without parole or a kidnapper vis--vis his victim)
E. Capital Murder
Does the scholarly research support the premise that capital punishment deters?
Unclear Most (but not all) statistical studies do not support the premise that capital punishment deters (some suggest the opposite) Anecdotal support for the proposition that at least some potential criminals are deterred by the possibility of capital punishment Query: How does one accurately measure a negative (i.e., crimes not committed), while controlling other variables (e.g., the certainty of being punished)
E. Capital Murder
Assuming capital punishment does deter, does this justify the imposition of the death penalty solely on this basis?
E. Capital Murder
What are retributive justifications given for capital punishment? (note 6, p. 345 )
Can the death penalty reflect respect for the dignity and value of human life, or does it suggest only the opposite? Can a death penalty redress the disorder caused by the offense? Assuming there is a retributive justification for the death penalty, would this alone be sufficient to justify its imposition? If not, what more is needed?
E. Capital Murder
Assume capital punishment was, in the abstract, justifiable on the basis of deterrence and/or retribution. What effect, if any, would the risk of executing the innocent person have on your
analysis of whether the death penalty should be permitted?

How would you measure the risk? What constitutes an acceptable risk?
E. Capital Murder
2. The Quest for Reliable Procedures
a. The Lingering Question of Racial Discrimination
McCleskey v. Kemp p. 359 Holding
A statistical study, which suggests a risk that racial considerations (the race of the victim and the perpetrator) enter into the determination whether to impose the death penalty, is not sufficient to invalidate the petitioners capital sentence under the Eighth (cruel and unusual punishment) or Fourteenth (equal protection) Amendments
E. Capital Murder
Equality versus justice
Do you agree or disagree with the following proposition? Why?
Justice is served by executing those who are guilty and deserving of death. A guilty person of color has no basis for objecting if he is executed, even if Whites who deserve similar treatment avoid execution. The lesson of McCleskey is not that we should let death-deserving Black murderers live, but rather that we should find ways of ensuring that death-deserving White murderers (or those who murder Black persons) get their just deserts.
E. Capital Murder
Equality versus justice :
The contrary argument
Equal protection principles suggest that equality is as important a constitutional (and moral) goal as is justice It is better that nobody should be executed (even if all of them deserve it) than that some people should irrationally be singled out on the basis of race for differential treatment Inequality creates distrust and alienation from the criminal justice system.
General Defenses to Crimes Part 1

A. Categories of Defenses
We will discuss (and have already discussed, to some extent) the following defenses:
Affirmative defenses
Justification defenses Excuse defenses
Failure of proof defenses
Justification defenses
These are types of affirmative defenses (i.e, they can apply even though all the elements of the offense are proven beyond a reasonable doubt) The actors conduct benefits society
The harm caused by justified behavior remains a legally recognized harm which is be be avoided whenever possible Under special justifying circumstances, however, the harm is outweighed or negated by the need to avoid an even greater harm or to further a greater societal interest
Justification focuses on the act, not the actor Self-defense, defense of another, and necessity are examples of justification defenses
Excuse defenses
These are also affirmative defenses The actors conduct need not benefit society
The conduct is often of a type that society would condemn and seek to prevent Excuse admits that the illegal conduct may be wrong and harmful, but it excuses the actor because the conditions suggest that he is not responsible or blameworthy
The actor is exculpated only because he has not acted through a meaningful exercise of free will Excuse focuses on the actor, not the act Duress, insanity, and (perhaps) involuntary intoxication are examples of excuse defenses
Failure of proof defenses
These are not affirmative defenses They negate some or all of the elements of proof of an offense Examples include mistake of fact, voluntary intoxication, and alibi
B. Burden of Proof
Omitted
C. Principles of Justification
1. Structure of Justification Defenses
Internal structure of all justification defenses: the triggering conditions permit a necessary and proportional response
Triggering conditions: Circumstances that must exist before an actor will be eligible to act under a justification Necessity requirement: Actor may act only when and to the extent necessary to protect or further the interest at stake Proportionality requirement: A limit on the maximum harm that may be used in protection or furtherance of an interest (the harm cannot be too severe in relation to the value of the interest protected or furthered)
C. Principles of Justification 2. Self-Defense

a. General Principles United States v. Peterson (pages 494 99)
Background for discussing notes
Catholic teaching and Self-Defense:
The act of self-defense can have a double effect: the preservation of ones own life; and the killing of the aggressor The one is intended, the other is not.
It is not lawful for a man to intend killing a man in self-defense. (except for those in authority acting for the common good.)
If a man in self-defense uses more than necessary violence, it will be unlawful; whereas if he repels with moderation his defense will be lawful.
St. Thomas Aquinas, STh II-II, 64,7
Legitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others. Catechism, 2265
Common-law principles of self-defense, as set out in Peterson (page 495)
There must be a threat, actual or apparent, of the use of deadly force or serious bodily harm against the defender The threat must be unlawful and immediate The defender must honestly believe that he is in imminent peril of death or serious bodily harm, and his response is necessary to save himself therefrom These beliefs must not only be honestly entertained, but also must be objectively reasonable in light of the surrounding circumstances
Consistent with the foregoing principles and absent certain exceptional circumstances, the following persons are not entitled to exercise self-defense
Aggressors Those who are at fault
Note: The determination of who is an aggressor, and who is at fault, is sometimes unclear and susceptible to different interpretations
Hypo: Dina (D) ordinarily walked along a particular residential street as part of her daily exercise regimen. Arthur (A), the resident bully, told D if she came that way again he would kill her. D could have just as conveniently walked down another street. Believing she had every right to walk where I choose, D visibly armed herself with a licensed gun and walked along the now forbidden route. A appeared and moved menacingly toward D. D shot and killed A (Note 1A, page 499).
According to Peterson, was D entitled use self-defense? In particular, who was the aggressor in this incident D or A (or both)? How does Peterson define aggressor?
One who provokes a conflict
One who precipitate[s] the altercation One who is not free from fault in the difficulty One who incite[s] the fatal attack, encourage[s] the fatal quarrel or otherwise promote[s] the necessitous occasion for taking life One who commits an affirmative unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences.
Applying this definitional language quoted from Peterson, who appears to be the aggressor?
Probably Arthur (A) A provoked the attack, he was not free from fault in the difficulty, and he engaged in an affirmative unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences Of course, this assumes that Ds belief as to As intentions and capabilities was honest and reasonable
Assuming Ds apprehension toward A was honest and reasonable, was D or A the aggressor according to Laney, cited in Peterson (at page 497)?
Arguably D was the aggressor Apparently, D was in a place of comparative safety (her home), and she could have taken a different path for her walks Ds reappearance on the scene, in the language of Laney, could mean nothing but trouble for [D]
Assuming the same facts, was D or A the aggressor according to Rowe, cited in Peterson (at page 497)?
Arguably A was the aggressor The court in Rowe noted that a person may arm himself in order to proceed upon his normal activities, even if he realizes that danger may await him The court in Rowe avoided the argument on the ground that the jurors may have believed that the defendant armed himself for an unlawful purpose D in our hypo had no unlawful motive for arming herself
Under the MPC, was D permitted to use deadly force in
self-defense against A?
No 3.04(2)(b)(ii) provides that D may not use deadly force because she knows that she can avoid the necessity of using such force by complying with a demand that [s]he abstain from any action that [s]he has no duty to take.
Is the MPC result fair? Is it good public policy? Is it what Catholic teaching would urge?
MPC seemingly believes that even aggressive people such as A are entitled to live free from violence if there is a nonviolent (or at least less violent) way of avoiding a confrontation Would your answer differ if the facts were changed so that D was an African-American woman, and A was the resident racist who demanded D leave his good White community.
Hypo: MM, a Southern mountain man, was accused of murder. MM invited some friends over for a night of drinking. During the evening, one of his drunk guests (DG) passed out, only to awaken to find his (DGs) wife in bed with MM. DG, in a fit of rage, lunged at MM with a knife. MM grabbed a gun from beneath his bed and shot DG dead. Is MM entitled to self-defense under Peterson (Note 1B, page 500)?
Could MM be considered the aggressor and therefore not entitled to deadly self-defense?
Using the rules in Peterson, the following questions are relevant to whether self defense was justified: Was MM sufficiently free from fault so that he could lawfully exercise self-defense? Did MM engage in an affirmative unlawful act such that he is not entitled to assert self-defense? Was MMs conduct reasonably calculated to produce an affray foreboding
injurious or fatal consequences? While he has some culpability, MM is probably entitled to self-defense.
Under the MPC, is MM entitled to self-defense?
This requires the consideration of two issues?
Did MM provoke the attack? Was MM the aggressor? Was MM protecting himself against unlawful force by DG?
1. Did MM provoke the attack? Was MM the . aggressor?
No 3.04(2)(b)(i) provides self-defense is not available to one who, with the purpose of causing death or serious bodily injury, provokes the use of force against himself in the same encounter MM was not the aggressor toward DG under this provision
2. Was MM protecting himself against unlawful force by DG?
Yes DG was not justified in trying to kill MM Under the MPC, DG was not even partially justified in killing MM, as 210.3(1)(b) treats the extreme mental or emotional disturbance defense as a partial excuse
Thus, according under the MPC, MM was entitled to the defense of self-defense
The rest of the story
According to the author Mr. Curriden, MMs actual trial lasted just four hours. When the jury was still out after six hours, the judge sent the bailiff in to check on their progress. The bailiff found the jurors playing cards. Mystified, the judge asked for an explanation. The foreman said that the jury had voted to acquit in about 15 minutes. Because they figured the defendant was no saint for sleeping with the decedents wife, however, they decided to spend some time playing cards
so the defendant would sweat it out awhile.
Regaining the right to self-defense
Common Law Standard: An aggressor can regain the right of self-defense if he withdraws from the conflict in good faith, and so informs the other person by words or conduct (Peterson, Part IV, page 496)
How could Petersons story be altered to make him able to claim the use of this doctrine?
Escalation of force and necessary force for self-defense (Note 3, page 500)
Hypo: A attacks B with his fists. B defends himself, subduing A to the extent of pinning him on the ground. B then starts to batter As head savagely against the floor. A manages to rise. Because B is still attacking A, and A now fears that if he is thrown again to the floor he will be killed, A uses a knife against B and kills him. Can A justly claim self-defense if he is charged with an unlawful homicide for the death of B?
Can A successfully assert self-defense to homicide?
Yes B can defend himself against the attack by A, but only by using moderate, non-deadly force B exceeds the bounds of necessary force when, after reducing A to helplessness, he batters As head on the floor; this is excessive force and is unlawful A is entitled to defend himself against this excessive force and, if A honestly and reasonably believes that he is then in danger of death or serious bodily harm without apparent opportunity for safe retreat, A is also entitled to use the knife in self-defense A remains liable for his initial battery upon B; he would be entitled to
self-defense for the unlawful homicide
The necessity requirement for self-defense (Note 4, page 501)
Hypo: D (64 inches, 145 lbs) was in his car, preparing to leave a parking lot, when the decedent A (72 inches, 200 lbs) walked over and requested help in starting his vehicle. D said he would help if A paid him $5. After a verbal exchange, A lunged at D with a knife through the open car window. D emerged with a gun and shot A in the head. Did D exercise lawful self-defense? State v. Dill
Did D exercise lawful self-defense?
No The jury in Dill convicted D of first-degree murder and the appellate court affirmed, concluding the force used by D was not necessary for self-defense D reasonably apprehended receiving great bodily harm, given his size relative to A, even if A had been unarmed Deadly force was not necessary, however, as D could have safely retreated or withdrawn (by driving away or rolling up the car window) D issued no warning At close range, D shot A in the head (rather than a less vital area of the body)
Retreat and self-defense
No-retreat rule: A non-aggressor is permitted to use deadly force to repel an unlawful deadly attack, even if he is aware of a place to which he can retreat in complete safety. Retreat rule: An innocent person threatened by deadly force must retreat rather than use deadly force, if he is aware that he can do so in complete safety. MPC: One may not use deadly force if the actor knows that he can avoid the necessity of using such force with complete safety by retreating. 3.04(2)(b)(ii).
Retreat and self-defense
Castle exception: One, who through no fault of his own, is attacked in his home or curtilage is under no duty to retreat therefrom, even if he could do so in complete safety. In most jurisdictions, the castle exception applies even to co-dwellers. MPC: An innocent person is not obliged to retreat from his dwelling or place of work, unless he is assailed in his place of work by another person whose place of work the actor knows it to be. 3.04(2)(b)(ii)(1).
The proportionality requirement
Standard: Deadly force may not be used (but may be threatened) to repel a non-deadly attack (or an attack that threatens grievous bodily harm), even if this is the only way to avoid injury
The proportionality requirement
Example 1: One may repel a simple battery by a simple battery (A can shove or punch B to prevent B from shoving or punching him) Example 2: One may not repel a simple battery by using deadly force (A may not shoot or stab B to prevent B from shoving or punching him, even if this is the only way for A to avoid suffering the simple battery) Example 3: Generally, one may threaten deadly force to repel a simple battery (A may threaten to shoot or stab B to prevent B from shoving or punching him)
Reasonable Person & Self-Defense How much subjective information is included in the Reasonable Person standard? The debate continues
Common-law principle of reasonable belief: In order to use deadly force in self-defense, the actors belief as to the intention of the other person to inflict serious injury must be objectively reasonable.
It is not sufficient that one honestly believe the use of force is necessary, if this belief is unreasonable. Objective reasonableness is evaluated in relation to the circumstances facing a defendant or his situation
Contrast the MPC requirement for reasonable belief
3.04(1) Subjective standard: [T]he use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the the present occasion. 3.09 Caveat: If the actors belief is negligent, then he may be convicted of an offense based on negligence (e.g., negligent homicide); if the mistake reaches the level of recklessness, the actor may be convicted of a crime of recklessness.
Common law (also reflected in some states statutes): Self-defense
is an all-or-nothing defense (i.e., it operates as a complete defense or as no defense at all) MPC: Self-defense can be a partial defense (i.e., the actors culpability, if any, is determined by his mens rea that accompanies his actions resulting in the death of another)
People v. Goetz (page 495)
Holding:
The order of the Appellate Division is reversed, and the dismissed counts of the indictment reinstated, because the lower court incorrectly equated the statutory requirement of reasonable belief (that another person either is using or about to use deadly physical force) with a subjectively honest belief The actors belief as to the reasonableness of using deadly force must comport with some objective notion of reasonableness
Common-law principle of reasonable belief, as explained in Goetz
In order to use deadly force in self-defense, the actors belief as to the intention of the other person to inflict serious injury must be objectively reasonable Objective reasonableness is evaluated in relation to the circumstances facing a defendant or his situation
Contrast the MPC requirement for reasonable belief
3.04(1) Subjective standard: [T]he use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the the present occasion. 3.09 Caveat: If the actors belief is negligent, then he may be convicted of an offense based on negligence (e.g., negligent homicide); if the mistake reaches the level of recklessness, the actor may be convicted of a crime of recklessness (see Note 7, page 479)
According to Goetz, an actor in Goetzs position may take into account the following circumstances in evaluating whether to exercise self-defense reasonably (see Note 4, pages 472 78):
[A]ny relevant knowledge the [actor] had about [the] person he attacked [T]he physical attributes of all persons involved [A]ny prior experience [the actor] had which could provide a reasonable basis for a belief that another persons intentions were to injure or rob
Applying Goetz, may the following be considered in evaluating whether a reasonable person in Goetzs (G) situation would have believed the youths intended to seriously harm him?
1. That the youths possessed screwdrivers?
No; there is no basis for believe G knew this
2. That G had previously been mugged?

Yes; assuming the mugging occurred under circumstances sufficiently similar to the present case to fairly be brought to bear in this case
Applying Goetz, may the following be considered in evaluating whether a reasonable person in Goetzs (G) situation would have
believed the youths intended to seriously harm him?

3. The clothing worn by the youths?
Debatable This implicates how to evaluate split-second appraisals based on appearance Would you distinguish between gang colors and other clothing?
Applying Goetz, may the following be considered in evaluating whether a reasonable person Gs situation would have believed the youths intended to seriously harm him? 4. That one of the youths said, give me five . dollars?
Debatable In determining what a reasonable person believes, should we incorporate the culture of the community? Is it reasonable to interpret a request for five dollars made in a New York subway differently than a similar request made in the AMSOL parking lot?
Applying Goetz, may the following facts be considered in evaluating whether a reasonable person in Gs situation would have believed the youths intended to seriously harm him?
5. That the youths were young, African-American 6. That G was a middle-aged white male? . males?
Debatable This is an especially charged subject, having implications that extend far beyond self-defense Do you find any of the readings in this note particularly persuasive or offensive?
Hypo: A attacks B with a knife. B, exercising lawful self-defense toward A, shoots at A. B misses A but shoots and kills C, an innocent by-stander. Under the common law, should Bs claim of self-defense against A apply at his trial for the death of C (see Note 8, page 479)?
Probably yes, using the transferred intent doctrine Mathews, Smith, Fowlin (all cited in Note 8, page 479) reached this result
based on this rationale
Hypo: Same facts. Under the MPC, should Bs claim of self-defense against A apply at his trial for the death of C?
It depends on Bs mens rea Under 3.09(3), B could be convicted of manslaughter or negligent homicide if his conduct was reckless or grossly negligent, respectively The Commentary to 3.09 provides that in determining whether B was reckless or grossly negligent as to C, Bs reason for taking the risk the justifiable act of self-defense is given weight in the analysis
ii. The Debate Continues: Objective, . Subjective, or a Mixed Standard?
State v. Wanrow (page 518)
Holding:
The defendants conviction for second-degree murder is reversed because the instructions pertaining to self-defense were prejudicially erroneous in two respects:
They erroneously advised that only those acts occurring at or immediately before the killing are relevant to the issue of self-defense They erroneously implied that the reasonableness of the female defendants actions are to be judged from the perspective of a reasonable male in the defendants position
Instructional error #1: The instructions erroneously advised that only those acts occurring at or immediately before the killing are relevant to the issue of self-defense
The instruction at issue (page 520, footnote 7)
To justify killing in self-defense, there need be no actual or real danger to the life or person of the party killing, but there must be, or reasonably appear to be, at or immediately before the killing, some overt
act, or some circumstances which would reasonably indicate to the party killing that the person slain, is, at the time, endeavoring to kill him or inflict upon him great bodily harm.
May D take into consideration what she knows about the actor/decedent, including his propensity for violence or sexual misconduct, in evaluating his present actions toward her?
Yes Wanrow concluded that the instruction given in that case was erroneous, in that it advised that only those acts occurring at or immediately before the killing are relevant to the issue of self-defense Goetz likewise stands for the proposition that prior information may be considered for this purpose
Query: Did the court in Wanrow correctly interpret the instruction at issue? Suppose the judge had instead instructed as follows:
No matter how threatening a person may have been in the past, the defendant must point to something at or immediately prior to the killing that, in conjunction with any prior acts or circumstances of the decedent known to the actor, justified her in believing that deadly force was necessary.
Applying the restated instruction, did Wanrow (W) have a reasonable basis for believing that her life was in imminent jeopardy?
Did W have a reasonable basis for believing that her life was in imminent jeopardy?
Highly questionable Wesler was unarmed, and Ws baseball bat-wielding colleagues were nearby (but why were they outside?) W knew nothing about Weslers past, although she suspected him (perhaps reasonably) of a great deal The only at or immediately before circumstance at the time of the killing to which W could point was that she found Wesler standing directly behind h e r W testified that the shooting amounted to a reflex action Query: Is this a purposeful self-defense action, or is it an unintentional, even involuntary, act?
Under traditional self-defense law, should W have been permitted to act exclusively on the basis of Weslers prior actions (even assuming that Ws suspicions were reasonable)?
No Compare State v. Norman (a case involving a battered woman who kills her abuser while he is asleep)
Instructional Error #2: The instruction erroneously implied that the reasonableness of the female defendants actions are to be judged from the perspective of a reasonable male in the defendants position
Instruction at issue (page 520)
However, when there is no reasonable ground for the person attacked to believe that his person is in imminent danger of death or great bodily harm, and it appears to him that only an ordinary battery is all that is intended, and [that is] all that he has reasonable grounds to fear from his assailant, he has a right to stand his ground and repel such threatened assault, yet he has no right to repel a threatened assault with naked hands, by the use of a deadly weapon in a deadly manner, unless he believes, and has reasonable grounds to believe, that he is in imminent danger of death or great bodily harm.
Should the defendants sex be a factor in the reasonableness analysis for self-defense? If so, why ?
Is it because there are characteristics of women as women that justify the distinction? Or, is sex really a proxy for other characteristics (such as size, comparative physical weakness, lack of experience in using force) that are relevant to the reasonableness analysis? Or, is it both of the above?
Can the use of a deadly weapon ever be a proportional response to a
fist? Does the sex of the attacker and the defender matter?
The use of a deadly weapon to respond to an unarmed aggressor is not per se disproportional for either a man or a woman If the person attacked is frail, and the aggressor is strong, the aggressors fist may constitute deadly force, whereas the innocent persons fist may constitute a mere inconvenience to the aggressor In such a case, use of a deadly weapon would be allowed as a proportional response to the threat
State v. Norman(I)(page 525) Facts: Holding:
The trial court erred in failing to instruct on self-defense where evidence showed that woman was seriously abused, even though she killed her husband while he was sleeping and not immediately threatening her.
What is the principle defect in Normans claimed self-defense under the common law?
Lack of threat of imminent death or grievous bodily harm from husband (since he was asleep he was not threatening immediate harm). Therefore, killing is not necessary.
How does battered wife syndrome evidence cure this defect?

By showing that D was reasonable in believing that she had to kill V in order to save her life. Also, bolsters necessity of killing by explaining failure to flee.
Would Norman (without the BWS testimony) be entitled to a jury instruction under the approach of the Model Penal Code 3.04?
Perhaps, but still debateable the MPC is broader than the common law, force can be used when actor believes such force is immediately necesssary. Pre-emptive strikes?
Note 4, p. 534. Do you believe that Norman was justified in killing her husband while he slept (putting to one side the question of Battered Wife Syndrome and only considering the facts of the case)? Why or why not? Do you believe that the killing of her husband was excusable, rather than justified? Does it make a difference which defense is used?
Yes, if he wakes up, he is only justified in using force to repel unlawful force (justified killing is lawful, excusable killing is unlawful).
Defense of Others
People v. Kurr (pages 543)
Holding:
The trial judge erred by failing to instruct the jury on defense of others where D. acted to defend her unborn children from attack.
A fetal protection act in Michigan establishes that the legislature intends for unborn children to be included in those who may be protected under the common law defense of others doctrine.
Why doesnt the defense of others doctrine apply to protect frozen embryos?
Because the legislature did not include them in the fetal protection act. Only attacks on the mothers trigger the defense.
Why doesnt it apply to abortion sit-ins?

Only triggered by unlawful physical force, and abortion is lawful. Also, could be imminence problem. And the fact that sit-ins are not acts of violent intervention (perhaps a necessity claim).
Traditional common-law defense of another
Limited to situations where the person being protected is related to the intervenor by consanguinity, marriage, or employment This limitation is applied only infrequently today
Today, there are two principle variations of the defense of another
Reasonable-appearance rule Alter ego rule
Reasonable-appearance rule (majority modern view)
An intervenor is justified in using deadly or non-deadly force to the extent that such force reasonably appears to the intervenor to be justified in the defense of the third party
Alter ego rule (formerly the majority common-law rule)
An intervenor could only use force to defend a third party if the party being defended would in fact have been justified in using force, and force in the same degree, in self-defense In other words, the intervenor steps into the shoes of the person defended)
Hypo: P is a plain-clothes policeman attempting to lawfully arrest W, who is wrongfully resisting using deadly force. P lawfully responds by threatening W with deadly force. X, an innocent by-stander who happens upon the scene, honestly and reasonably believes that P is about to unlawfully assault W with deadly force. (X does not know that W has just threatened P with deadly force.) X intervenes to protect W, and thereby seriously injures P.
Can X successfully assert defense of another under the reasonable-appearance rule?
Yes W reasonably appeared to be entitled to exercise self-defense against
Can X successfully assert defense of another under the alter ego rule?
No W was not in fact entitled to exercise self-defense against P
Defense of another defense under the MPC is a variation of the reasonable-appearance rule
3.05(1): Subject to the retreat provisions (discussed . infra), an intervenor (D) is justified is using force . upon another person in order to protect a third party . (X) provided all three conditions below are satisfied
D uses no more force to protect X than D would be entitled to use in self-protection, based on the circumstances as D believes them to be Under the circumstances as D believes them to be, X would be justified in using such force in self-defense D believes his intervention is necessary to protect X
People v. Ceballos p.547 Facts Holding: The use of a trap gun to shoot intruders threatening to burglarize an empty home is not a justifiable use of force. In general, deadly force may not be used to protect property. California limits the defense of habitation to instances when the criminal manifestly intends or endeavors by violence or surprise to commit a felony and the court concludes that only atrocious felonies justify lethal force.
5. Necessity (Choice of Evils)
a. General Principles
Nelson v. State
Holding:
Even if judges instructions on necessity were inadequate, Ds conviction is affirmed because there was no prejudice. D failed to show that the facts of this case would satisfy a necessity defense.
Common-law necessity defense in Nelson The act must have been done to prevent a significant evil (usually this is described as a clear and imminent danger) There must be no adequate (legal) alternative The harm caused must not have been disproportionate to the harm avoided.
According to the court in Nelson, why didnt the defendants reason for violating the law fall within the ambit of the necessity defense?
Not faced with a clear and imminent danger Lawful alternatives were available Harm created was disproportionate to the harm sought to be avoided.
How to balance harms How do we determine what is the lesser harm?

Car with no brakes going down a hill Should the driver swerve to hit
A $1,000 car or a $50,000 car? What if the $1,000 car is needed by a worker to remain employed? A $1,000 car or a cat A cat or an original Picasso painting?
The Commentary to 3.02(2), MPC (page 558) asserts that recognition of the necessity defense is essential to the rationality and justice of the criminal law . What is basis for this assertion?
Necessity acts as a residual justification defense It permits a jury to acquit an actor in circumstances in which, if the legislature had the opportunity to intervene, it would justify the conduct It is irrational to deny a defense to someone whose conduct results in an outcome which, although ordinarily unlawful, society prefers
How does the MPC version of the defense differ from the common-law necessity defense, as exemplified in Nelson ?
3.02(2), MPC (page 1002) The MPC does not have an imminence requirement (it merely has a necessity requirement) The MPC only requires that D believe (subjectively) that the conduct is necessary to avoid the greater harm (however, the harm that D seeks to avoid must in fact be greater than the harm caused by the conduct) Nelson does not address the extent to which D may claim the defense if he is culpable in bringing about the necessity (compare 3.02(2), MPC)
U.S. v. Schoon, p. 568

How did the Defs argue necessity defense? Why is necessity defense unavailable? Court concluded that there was insufficient proof to satisfy the defense:
Balance of harms? Do you agree with the courts chararaterization of the harms? Insufficient causal relationship? Unlikely to abate the evil? Legal alternatives this is probably the most difficult one for protesters to answer
c. Defense to Murder?
The Queen v. Dudley and Stephens (pages 567 - 570)
Holding:
Necessity cannot provide a defense to murder, even if the taking of an innocent life is necessary in order to save other lives
Note that Lord Coleridges opinion confuses justification and excuse (unless the killing can be justified by some well-recognised excuse admitted by the law, page 569), by focusing on the temptation and weakness of the defendants
Justification defenses apply to conduct, which is otherwise criminal, that is under the circumstances socially acceptable and benefits society, and thus deserves neither criminal liability nor condemnation; focus on the act Excuse defenses apply to conduct, which is otherwise criminal, for which the actor should not be criminally liable, even though the conduct harms society;
focus on the actor
Note that the MPC does not rule out the choice of evils defense in murder cases (Note 3, page 571)
In certain circumstances, the taking of innocent life could be justified by the principle of double effect, where death is only permitted, not intended, and is not itself the means of saving life (e.g., causing a farm to flood in order to save a town) (see Footnote 15, page 571) However, unlike Catholic teaching, the MPC does not rule out the defense in situations where an innocent person is intentionally killed to save other innocent lives (e.g., the invaders who threaten to kill everyone in a town unless the townspeople kill the mayor)
Hypo 2: D and E are mountain climbers, roped together for safety. While they are moving along a narrow ledge, D falls off the ledge. E is not strong enough to pull D to safety. Because E is about to be dragged over the ledge by the dangling D, E cuts the rope. D falls to her death, while E survives. Is this homicide justified? Can this Hypo be distinguished from Dudley (Note 5, at page 574)?
Can Hypo 2 be distinguished from Dudley?
In Dudley, Parker was the person most likely to die, but his death was not certain In Hypo 2, D was going to die no matter what E did
Does the principle of double effect apply to Es cutting the rope?

Arguably yes Double effect applies if Ds death is only permitted, but is not intended, by E Under this analysis, Ds death is not the means of saving Es life; Ds death is merely an unintended consequence Note, however, that E did accelerate Ds death, which constitutes actual causation under common-law analysis
Is D entitled to kill E as a form of self-defense?
Arguable If D is treated as an innocent aggressor, Es actions could be seen as a
form of self-defense
Self-defense and innocent aggressors
Hypo: V, a very young child, points a loaded gun at X, who realizes that his life is in imminent danger and the only way to protect himself is shoot V. If X kills V, X will be acquitted, but it is unclear why.
Justification: X is justified to exercise self-defense under the moral-right theory of justification, because his right of autonomy is unjustifiably threatened Excuse: X is not justified to exercise self-defense (but he is excused) under the moral-forfeiture doctrine, because V is too young to know what he is doing and, therefore, has not forfeited his right to life
Necessity Defense
Common-law necessity defense in Nelson (p. 562) The act must have been done to prevent a significant evil (usually this is described as a clear and imminent danger) There must be no adequate (legal) alternative The harm caused must not have been disproportionate to the harm avoided.
Common Law No defense to Murder Dudley Very difficult to pursue regarding civil disobedience - Schoon

Questions
Principles of Excuse
Introduction
Excuse defenses
These are affirmative defenses The actors conduct need not benefit society
The conduct is often of a type that society would condemn and seek to prevent Excuse admits that the illegal conduct may be wrong and harmful, but it excuses the actor because the conditions suggest that he is not responsible or
blameworthy
The actor is exculpated only because he has not acted through a meaningful exercise of free will Excuse focuses on the actor, not the act Duress, insanity, and (perhaps) involuntary intoxication are examples of excuse defenses
Categories of Defenses
What are main differences between defenses based on justification and those based on excuse?
Justification:
The actors conduct benefits society Justification focuses on the act, not the actor Eg: Self-defense, necessity
Excuse:
Conduct need not benefit society: focus on the actor Actor lacks opportunity for meaningful exercise of free will Eg. Duress, insanity
D. Principles of Excuse
Duress
Elements of the common-law duress defense
Another person threatened to kill or grievously injure the actor or a third party, particularly a near relative, unless he committed the offense (except murder) The actor reasonably believed that the threat was genuine The threat was present, imminent, and impending at the time of the criminal act There was no reasonable escape from the threat except through compliance with the demands of the coercer The actor was not at fault in exposing himself to the threat
Duress under the 2.09, MPC
The actor was compelled to commit the offense by the use, or threatened use,
of unlawful force by the coercer upon him or anther person A person of reasonable firmness in his situation would have been unable to resist the coercion
Note: The defense is unavailable to those who recklessly place themselves in a situation where it is probable they will be subjected to coercion Note also: The MPC is broader than common-law duress (the MPC has no imminence requirement, no requirement as to severity of the threat, and it does not exclude applying the defense to murder)
Rationale for the duress defense
Utilitarian arguments
Deterrence: An actor who is sufficiently coerced cannot be deterred; in such situations, it makes no sense to punish him Character: A person being coerced is not in need of rehabilitation or incapacitation; the party doing the coercing is in need of this
Rationale for the duress defense
Retributive arguments
Just deserts: Someone acting under duress is not deserving of punishment because he lacks the opportunity to meaningfully and fairly exercise his free will to act lawfully Note: Duress does not normally negate mens rea, nor does it involve involuntary actions, as we described that term in Chapter 4
United States v. Contento-Pachon (p. 585)
Holding:
The appellants conviction for unlawful possession of cocaine with intent to distribute is reversed, because the judge failed to instruct on defense of duress, which was reasonably raised by the evidence
Elements of the common-law duress
Another person threatened to kill or grievously injure the actor or a third party, particularly a near relative, unless he committed the offense (except murder) The actor reasonably believed that the threat was genuine
The threat was present, imminent, and impending at the time of the criminal act There was no reasonable escape from the threat except through compliance with the demands of the coercer The actor was not at fault in exposing himself to the threat
Elements of the common-law duress
Another person threatened to kill or grievously injure the actor or a third party, particularly a near relative, unless he committed the offense (except murder) The actor reasonably believed that the threat was genuine The threat was present, imminent, and impending at the time of the criminal act There was no reasonable escape from the threat except through compliance with the demands of the coercer The actor was not at fault in exposing himself to the threat
Was the threat present, imminent, and impending at the time of the criminal act? Was this reasonably raised by the evidence?
Lower court no (the threats were conditioned on Ds failure to perform acts in the future) Appellate court yes
Jorge (the one threatening D) was a major criminal with a lot at stake Jorge knew information about Ds family, including their names and the location of their residence D claimed that he was being watched by Jorges accomplices at all times during the airplane trip
Was there a reasonable opportunity for escape from the threatened harm? Was this reasonably raised by the evidence?
Lower court yes (because D was not physically restrained, he could have sought help from the police or fled) Appellate court no
D claimed he did not report the threat because he believed the police were corrupt (the Bogot police were paid informants of Jorge) For D to flee, he and his family would have been forced to relocate to a place beyond the reach of Jorge
Did D have the requisite mens rea to be convicted of the charged offense (Note 3, p. 589)?
Arguable Ds motive was to protect himself and his family from harm at the hands of Jorge and his cohorts D clear intent was to possess the cocaine D may not have intended to distribute the cocaine D may have wanted to be arrested in the US by police he could trust; perhaps this is why he consented to the X-ray On the other hand, if D believed the coercing parties could get to his family at any time, he may have actually desired to distribute the cocaine
LaFave and Scott treat duress as a justification defense. Are they correct (Note 4, page 589)?
Hypo 1: A threatens to chop off Bs arm, unless B chops off Cs harm. B complies. Would B be entitled to the duress defense?
Yes, provided all the other requirements of the defense (imminence, no escape, etc.), are satisfied The harms are equal; this is not a lesser evil situation Thus, B would be excused, but his conduct would not be justified
LaFave and Scott treat duress as a justification defense. Are they correct (Note 4, page 592)?
Hypo 2: A threatens to poke out the eyes of Bs infant daughter, unless B rapes C. B complies. Would B be entitled to the duress defense?
Arguably yes, provided all the other requirements of the defense (imminence, no escape, etc.), are satisfied Note that if we apply duress, it is not because we have balanced harms and determined the Bs daughters eyes are worth more than Cs bodily integrity If B is acquitted, it is because we consider him morally blameless under the circumstances
Observations about the fundamental differences between necessity and
duress
People v. Unger, p. 594 Court says prison escape was justified, not excused, b/c not coerced into escaping. Nature of the defense
Necessity is a justification defense (the actors free will is properly exercised to achieve a greater good or lesser evil) Duress is an excuse defense (the actors free will is overcome by an outside force [the excuse]) Necessity is caused by natural (and human) forces Duress is caused by human forces only
Causation
c. Defense to Murder? Common-law rule is that duress is not a defense to an intentional killing People v. Anderson p. 599. (treats duress as justification rather than excuse:= minority view) Many states have codified this rule by statute A minority of states recognize an imperfect duress defense, that reduces murder to manslaughter Some states allow the duress defense in cases of felony murder, where the actor is not the killer MPC does not exclude duress as defense to murder.
3. Intoxication
a. Voluntary (Self-Induced) Intoxication .
Voluntary intoxication has two components: voluntariness and intoxication
Voluntariness
Common law: The intoxicant has been introduced into the actors system with his knowledge and without force or fraud 2.08(5)(b), MPC: [S]elf-induced intoxication means intoxication caused by substances which the actor knowingly introduces into his body,
the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime (page 1000)
Voluntary intoxication has two components: voluntariness and intoxication
Intoxication
Common law: A state of mental confusion, excluding the possibility of specific intent; thus, an actor may be under the influence of an intoxicant without being intoxicated 2.08(5)(a), MPC: [I]ntoxication means a disturbance of mental or physical capacities resulting from the introduction of substances into the body (page 1000)*
________________________________________________________________________________________
* Intoxication can be a defense if it negatives an element of an offense (2.08(1)), not

including recklessness (2.08(2))
Commonwealth v. Graves ( p. 606)
Holding:
The judge prejudicially erred by failing to allow the defense to present evidence of the appellants voluntary intoxication with respect to the crimes of burglary and robbery, and by failing to instruct the jury that voluntary intoxication could be a defense to these crimes
What does the court in Graves mean when it says that voluntary intoxication does not exonerate or excuse, but that it is relevant in establishing whether the crime charged occurred?
Voluntary intoxication can operate as a failure of proof defense, by negating the mental state (the mens rea) required in the definition of the crime
Common-law robbery defined
When the actor, with intent to steal, takes anything of value from the person or in the presence of another, against his will, by means of force or violence or fear of immediate or future injury
Common-law burglary defined

When an actor, with intent to commit a certain enumerated felony therein, breaks and enters, in the nighttime, the dwelling house of another
Are these specific or general intent offenses?

Both are specific intent offenses Robbery specific intent to steal Burglary specific intent to commit a certain felony
Common-law rule for the applicability of the voluntary intoxication defense
Specific intent crimes
Voluntary intoxication is a defense for specific intent crimes A person is not guilty of an offense if, as the result of his intoxication at the time of the crime, he was incapable of forming or did not in fact form the specific intent required in the definition of the offense
General intent crimes

Voluntary intoxication is not a defense for general intent crimes
What is the rationale of the dissent in Graves?
The dissent, essentially, raises a time-framing issues The majority looks at Ds state of mind at the time of crime The dissent broadens the time frame and finds culpability based on Ds decision to become intoxicated, and it carries this culpability over to the crime itself
What is the major weakness in the Dissents conclusion that D has the requisite mental state for a specific intent offense by focusing on Ds decision to become intoxicated?
Ds decision to become voluntarily intoxicated proves only that D engaged in morally blameworthy conduct This is the mental state required for general intent crimes Specific intent crimes require more; they require that the actor possess a mens rea beyond mere moral blameworthiness
Would the dissents rationale be persuasive if D became voluntarily intoxicated so that he could commit an offense (such as burglary or robbery) that he did not have the nerve to commit when sober?
Arguably yes In such a case, it makes sense to broaden the relevant time frame to encompass Ds voluntary intoxication In such a case, Ds specific intent to become intoxicated in order to commit a certain crime is transferred to a specific intent to commit the crime itself
Hypo: T1 is tried for the specific intent offense of assault with intent to commit rape. T2 is tried for the general intent offense of rape. Both engaged in conduct that satisfied the actus reus requirements for their respective offenses. Also, both T1 and T2 were so under the influence of voluntarily intoxication at the time of their actions that they lacked the intent to rape (in particular, to sexually penetrate) their victims (see Note 2, page 606).
Is T1 entitled to present evidence of voluntary intoxication in his defense at his trial for assault with intent to commit rape?
Yes Because T1 is charged with a specific intent crime, voluntary intoxication can act as a failure of proof defense Voluntary intoxication negates T1 having the requisite specific intent mens rea required for the offense of assault with intent to commit rape
Is T2 entitled to present evidence of voluntary intoxication in his defense at his trial for rape?
No Because T2 is charged with a general intent crime, voluntary intoxication cannot act as a failure of proof defense Voluntary intoxication cannot negate T2 having the requisite general intent mens rea required for the offense of rape
Why can voluntary intoxication result in the acquittal of T1 but not T2?
Because T2 is charged with a general intent crime, his conviction may be based on his moral culpability in becoming drunk With respect to general intent offenses, criminal defenses are generally unavailable to actors who are at fault in creating the conditions supporting the defense
Four circumstances in which an actor can become involuntarily intoxicated
Coerced intoxication (e.g., Carry Grant in North by Northwest; where D, a youth, is told he will be stranded in the desert unless he drinks an intoxicant) Intoxication by innocent mistake (e.g., X fraudulently induces D to consume an intoxicant, telling D it is a breath freshener)
Four circumstances in which an actor can become involuntarily intoxicated, contd.
3. Unexpected intoxication from prescribed medicine (where the actor does not know, or have reason to know, the medication is likely to have an intoxicating effect) Pathological intoxication (a temporary psychotic reaction, often manifested by violence, which is triggered by consumption of alcohol by a person with a pre-disposing mental or physical condition)
4.
Involuntary Intoxication D. Principles of Excuse

Which of the four circumstances of involuntary intoxication arguably applies to this Hypo?
Unexpected intoxication from prescribed medicine
Does the defense apply to this Hypo?

Did D know, or have reason to know, that the medication is likely to have an intoxicating effect? arguably no
Was the prescribed drug the cause of Ds intoxication? apparently yes Did D, because of the intoxication, become temporarily insane/not have the requisite mens rea for the offense? apparently yes

Questions
General Defenses to Crimes - Insanity A. Procedural Context

Competency and sanity are separate determinations
Competency concerns the defendants mental state at the time of the trial Sanity concerns the defendants mental state at the time of the crime
A. Procedural Context
A person is incompetent if
Lacks the capacity to consult rationally with counsel or Is unable to understand adequately the proceedings, legally and factually
Trial of an incompetent D is not allowed
The results may be unreliable The retributive and specific deterrent purposes of punishment would be frustrated
Effect of a permanent incompetence finding
Trial will never occur if D is determined to be permanently incompetent D cannot be indefinitely committed based solely on incompetence; this violates due process Ultimately, D must be released or committed pursuant to customary civil
procedures
Insanity Defense: Burden of proof
Insanity is an affirmative defense; therefore, a statute may require D to bear the burden of proof Today, the federal government and most states place the burden on D to prove he was insane Prosecution retains the burden of proof beyond a reasonable doubt as to all elements of the offense
Post-Trial disposition
Ordinarily, D found not guilty be reason of insanity (NGRI) does not go free D can be committed, automatically or pursuant to a judicial proceeding, to a psychiatric facility Commitment can be ordered (continued) based a proof by a preponderance of the evidence that D is presently mentally ill and dangerous to himself or others
A new approach: Civil Commitment Sexual predator laws enacted in about 15 states
E.g, a Kansas statute provided that D would remain confined if he suffers from a mental abnormality or personality disorder which makes him likely to engage in predatory acts of sexual violence Such statutes can be used to continue confinement of Ds who are otherwise scheduled to be released from prison and the incompetent
Why do we excuse the Insane? B. Why Do We Excuse

Utilitarian theory (see United States v. Freeman (pages 622)
Punishment may be pointless and counter-productive A person who does not know what he is doing and cannot control his conduct cannot be deterred Incapacitation of the insane can be accomplished through civil commitment Rehabilitation can be better accomplished in a psychiatric facility rather than a prison
B. Why Do We Excuse
Retributive theory (see Notes 2 4, page 622)
Punishment is undeserved where a person is unable to meaningfully exercise rational free will Insane persons lack the essential attributes of personhood; therefore, they are not deserving of punishment, just as infants, animals, and inanimate objects are not deserving of punishment
Why Do We Excuse?
How often do we excuse?
Public perception is that this excuse is often abused. Less than one in a hundred defendants attempt to raise the insanity defense (.085%) The percentage of all defendants found NGRI averages about .026% per year. When the defense is successful, it is usually a high profile sensational case John Hinkley, eg.
Struggling for a Definition: The Tests of Insanity

State v. Wilson, p. 637 Issue? Holding:
The judge erred in instructing the jury that the defendant could not be found NGRI if he appreciated that society would view his actions as wrong at the time he committed them. The proper interpretation of
wrongful includes both subjective and objective elements.
Court rejects both Ds purely subjective and Ps purely objective definition of wrongfulness. What standard do they adopt? One does not appreciate the wrongfulness of ones actions if
A mental disease or defect causes him both to harbor a distorted perception of reality and to believe that, under the civcs as he honestly perceives them, his actions do not offend societal morality even though he may be aware that society on the basis of the criminal code does not condone actions
A modification of the necessity defense?
C. Tests for Insanity

Five recognized tests for insanity
MNaghten Rule (1843) Irresistible Impulse Test (late Nineteenth Century) Product or Durham Standard (1954) Model Penal Code (ALI) Test (1962) Federal Statutory Definition (1984) Consider how (or if) Wilsons case would come out differently under these tests different tests.

MNaghten Rule
Rule: A person is insane if, at the time of the act, he was laboring under such a defect of reason, arising from a disease of the mind, that:
He did not know the nature and quality of the act he was doing, or If he did know it, he did not know that what he was doing was wrong (i.e., at the time of the act the person did not know the difference between right and wrong)

MNaghten Rule
Focuses exclusively on cognitive disability Subject to criticism
Fails to allow for volitional impairments Inflexibly requires total cognitive incapacity to act as a defense Does not comport with psychiatric reality

The Irresistible Impulse Test
Test: A person is insane if, at the time of the offense
He acted from an irresistible and uncontrollable impulse; He lost the power to choose between the right and the wrong, and to avoid doing the act in question; or His actions are completely beyond his control

The Irresistible Impulse Test
Focuses on volitional disability This test sometimes added as a third prong of the MNaghten Rule Subject to criticism
Inflexibly requires total volitional incapacity to act as a defense Tends to misleadingly equate volitional incapacity with impulsivity

Durham Rule
Test: A person is excused if his unlawful act was the product of a mental disease or defect Jury must determine:
Was D suffering from a mental disease or defect at the time of the offense; and If yes, whether Ds criminal conduct would have occurred but for the condition

Durham Rule
Focuses on the presence of a mental disease or defect and causation Intended to allow for complete and realistic expert testimony and jury consideration Also used to supplement the MNaghten Rule Subject to criticism
Productivity was an elusive concept for juries Expert witnesses usurped the jurys function

Model Penal Code (ALI) Test
Test: A person is not responsible for his criminal conduct if, at the time of the conduct, as the result of a mental disease or defect, he lacked substantial capacity to:
Appreciate the criminality or wrongfulness of his conduct; or To conform his conduct to the requirements of the law

This threshold is similar to Durham Rule, but it also allows for the defense based on a defect

Avoids the criticism of requiring total incapacity

Appreciate the criminality or wrongfulness of his conduct; or To conform his conduct to the requirements of the law Cognition prong: Appreciate conveys a broader sense of understanding than simple cognition

Appreciate the criminality or wrongfulness of his conduct; or To conform his conduct to the requirements of the law Cognition prong: Wrongfulness added; relates to the communitys standards regarding behavior

Volitional prong: Requires incapacity rather than mere indisposition

Federal Test (18 U.S.C. 17)
Test: A person is excused by reason of insanity if he proves by clear and convincing evidence that, at the time of the offense, as the result of a severe mental disease or defect, he was unable to appreciate:
The nature and quality of his conduct; or The wrongfulness of his conduct

The nature and quality of his conduct; or The wrongfulness of his conduct Burden of proof shifted to D Burden is high clear and convincing evidence

The nature and quality of his conduct; or The wrongfulness of his conduct Increases the threshold of qualifying conditions

The nature and quality of his conduct; or The wrongfulness of his conduct Retains the MPC Tests cognitive prong but perhaps imposes a tougher standard (unable) Eliminates the volitional prong

The nature and quality of his conduct; or The wrongfulness of his conduct Rejects criminality for a seemingly higher standard

The nature and quality of his conduct; or The wrongfulness of his conduct Retains wrongfulness from the MPC Test

Query: Does the particular test being applied really matter (see Note 9, pages 630 31)?
Studies suggest and many practitioners believe that juries tend to convict and acquit with respect to insanity on criteria other than the specific requirements of a particular test
Jurors have trouble understanding and applying the instructions Jurors have their own sense of sanity and responsibility Insanity is employed as quasi-jury nullification
Inchoate Offenses Part 1

A. Overview
Definitions
Inchoate offenses generally:
A step toward the commission of another crime, the step in itself being serious enough to merit punishment Literally means an incomplete crime, but this is not accurate in that a crime has been completed, even though the ultimate object of the crime has not been obtained
Examples of inchoate crimes are attempts, conspiracy, and solicitation
A. Overview
Definitions
Criminal attempt: An inchoate crime that consists of overt act done with the specific intent to commit a crime but that falls short of completing the crime Overt act: In connection with criminal attempts, an outward act, however innocent in itself, done in furtherance of the attempted crime
A. Overview
Why the law punishes attempts
Crime prevention
The police ought to be able to intervene to prevent crime without having to wait until the perpetrator actually commits the crime Individuals who attempt (but perhaps fail to consummate) crimes are dangerous and likely to commit crimes in the future, and thus need to be rehabilitated and incapacitated
Equal protection and fairness: Persons who engage in the same conduct,
with the same intent, ought not to be punished differently depending on fortuity (e.g., whether a shot fired into a crowd happens to strikes someone)
B. Attempt
2. Grading Criminal Attempts
Hypo: A stabs B, intending to kill B. B survives. A is convicted of attempted murder. A is paroled after serving several months of a two-year sentence. Three months later, B, who has been hospitalized since the attack, dies from the stab wounds. The prosecutor re-charges A with murder, a capital crime. Does A merit greater punishment now that B has died? In general, should attempts be treated as a less severe crime than the completed crime that was attempted? What is the rationale for your answer (see Note 1, pages 740-741)?
B. Attempt
Should attempts be punished less severely than completed crimes?
Specific deterrence Rehabilitation
No one who attempts but fails to commit a crime is as dangerous as one who actually commits a crime No one who attempts but fails to commit a crime is as in need of correction as one who actually commits a crime
B. Attempt
Retribution
Depends Harm-Retributivist: Yes less harm occurs when an offense is attempted but not completed Intent-Retributivist No an actors intent and moral culpability are the same regardless of whether an attempted crime is completed
B. Attempt
General deterrence
Debatable Arguably yes A person who is not deterred by the threat of punishment for a completed crime would not be deterred by the threat of punishment for an attempt (so additional punishment wasted) By punishing attempts less severely, an actor has incentive to abandon an attempt before it is completed
B. Attempt
General deterrence
Arguably no A criminal may believe if he successfully completes a crime it is unlikely he would be caught, but if he attempts and fails it is more likely he will be caught and punished Therefore, attempts should be punished with equal severity as the underlying crime to take away the incentive to succeed.
B. Attempt
3 . M e n s Re a
In general
The word attempt means to try; it implies an effort to bring about a desired result Accordingly, an attempt to commit any crime (even a general intent crime) requires a specific intent to commit that particular offense
B. Attempt
People v. Gentry (page 748)
Holding:
The defendants conviction for attempted murder is reversed, because the judge erroneously instructed in such a way that the jury may have concluded that the mens rea for attempted murder was something other than a specific intent to kill
B. Attempt
A demonstration of my shooting skills Under the common law, of what offense am I guilty if Ms Ambrozic dies?
Depraved-heart murder if my mens rea was super-recklessness Involuntary manslaughter if my mens rea was ordinary recklessness
B. Attempt
If the student survives, would I be guilty of attempted murder?
No
Why not?
Because I did not possess the required state of mind for attempted murder Attempted murder is a specific intent crime, and I did not have a specific intent to cause the harmful result proscribed by the statute (i.e., to kill someone)
B. Attempt
Does it make sense to require a higher mens rea for an attempt crime, even when the underlying offense can be committed on the basis of a lesser mens rea? A person who intends to kill (e.g) is more dangerous than one whose reckless conduct endangers another. The person intent on killing may continue to try, if unsuccessful, while a person
who does not have killing as a goal, but risks the harm, may either succeed in reaching his goal (and so desist from risky behavior) or find a safer method toward his ultimate goal the next time he seeks to achieve it.
B. Attempt
Hypo: Assume the prosecutor introduced evidence at Gentrys trial that the gasoline was ignited from a match D lit and tossed at Hill (H) after he doused her with the fuel. Assume the trial takes place in a MPC jurisdiction (Note 4. Consult 5.01 (page 1004) and 211 (pages 1015-16).
B. Attempt
Hypo: Bob (B) wants to demolish a building. He realizes that people are in the structure and believes that they will be killed in the demolition, although he does not want them to die. He detonates a bomb to demolish the building, but the bomb proves defective (Note 6, page 752).
B. Attempt
Would B be guilty of attempted murder under the common law?
Probably no Most, but not all, jurisdictions require a specific intent to kill for attempted murder, by which they mean the actors purpose or conscious object must be to cause the result in question Since Bs conscious object was to demolish the building, and not to kill anyone, he would not be guilty of attempted murder In a minority of jurisdictions, knowledge that a death is virtually certain to occur is sufficient to prove intent
B. Attempt
Would B be guilty of attempted murder under the MPC? Consult 5.01(1) (p 1004)
Yes Pursuant to 5.01(1)(b), B could be convicted of attempted murder because he belie[ved] [his actions would] cause such result without further conduct on his part
B. Attempt
Hypo: S was informed that he was infected with HIV and warned that he should not have sexual relations without informing partners of his HIV status and using a condom in order to avoid infecting others with the disease. A month later, S raped a woman and did not use a condom. S was charged with attempted murder. Is he guilty? (problem 6, p. 744)
B. Attempt
Is S guilty of attempted murder?
Courts are divided. In Smallwood, S was convicted of attempted murder and upheld at the intermediate level: The court inferred the requisite intent from
Ss knowledge that he was infected, he knew condoms were necessary to reduce risk of infection, and yet he did not use one during the rape.
Overturned by state supreme court inference was not supported by facts of the case
B. Attempt
Problem 6, contd In Hinkhouse, H was convicted of 10 counts of attempted murder on somewhat similar facts.
Does having sex without a condom demonstrate that he intended his sexual partners to die? What if theres adequate medicine? H told at least one person that he intended to spread the disease to others by his conduct. He used a condom when having sex with woman he intended to marry.
B. Attempt
Bruce v. State (pages 744-746)
Holding:
Attempted felony murder is not a crime under state law
Rationale:
Felony murder does not require a specific intent to kill, and a criminal attempt requires a specific intent to commit the underlying crime
B. Attempt
The court in Bruce stated that there is an offense of attempted (heat-of-passion) voluntary manslaughter, but no offense of attempted involuntary manslaughter. What is the rationale for drawing this distinction?
Voluntary manslaughter requires an intent to kill; thus, a perpetrator may specifically intend to accomplish the harmful result of such a homicide, but fail Involuntary manslaughter does not require an intent to kill; one cannot intend to achieve a harmful result (e.g., to kill) in a grossly negligent manner
B. Attempt
Hypo: A attempts to have sexual intercourse with B, a female under 18 years of age, but desists when he learns B is under the age of legal consent. Is A guilty attempted statutory rape under the MPC? How does the mens rea issue here differs from that in Bruce (Note 3, page 754)?
Yes The mens rea element in Bruce related to the result The mens rea issue here relates to an attendant circumstance; i.e, the age of the female 5.01.1: To be guilty of an attempt, A need only possess the state of mind as to the attendant circumstance that is required for commission of the completed offense (here, strict liability)

B. Attempt
4. Actus Reus
B. Attempt
What is the difference between complete and incomplete attempts?
In a completed attempt the actor does every act he plans to do, but is unsuccessful in producing the intended result.
E.g. A loads a gun, aims at B, pulls the trigger, but the gun malfunctions. Why do we
punish A in this circumstance?
In an incomplete offense, the actor does some of the planned acts but either desists or is prevented from completing them by an outside factor (e.g. the police arrive before completion). Actus Reus is more difficult to define in these cases.
B. Attempt
Often difficult to draw a line that distinguishes the actus reus that is adequate for a criminal attempt from that which falls short
Sometimes conclusory or simplistic statements are used to draw this lin e
Perpetration versus preparation Proximate versus remote
There are many tests and rules, and they sometimes overlap
B. Attempt
Line drawing is difficult because of competing policy interests
Intervene early: Attempts should be punished when the act, coupled with an intent to commit a crime, has reached a point where the perpetrator is sufficiently dangerous to society to merit punishment But not too early: If police intervention and punishment occurs too early in the process, then innocent persons and those who barely formed a criminal intent (and might change their minds) may be improperly or needlessly arrested and punished
B. Attempt
The two types of tests
Those that focus on how much remains to be done Those that focus on how much has already been done
B. Attempt
Last Act Test
Standard: A criminal attempt only occurs when the person has performed all of the acts that he believed were necessary to commit the target offense Example: If this standard is the only one used, an attempted murder by shooting does not occur until the perpetrator pulls the trigger of the gun
Note: Jurisdictions today generally agree that an attempt is made out when the last act occurs, but no jurisdiction requires the occurrence of the last act for an attempt
B. Attempt
Physical Proximity Test Mandujano (footnote 5, at page 756)
Standard: The act must go so far that it would result, or apparently result, in the actual commission of the crime it was designed to effect, if not extrinsically hindered or frustrated by extraneous circumstances Example 1: An attempted robbery occurs when an actor, approaches the victim with a gun and can immediately perpetrate the robbery (absent some extraneous factor, such as intervention by the police) Example 2: An attempted robbery does not occur when an actor, while possessing a weapon, runs through a park searching for a robbery victim while shouting I want to rob somebody!
B. Attempt
Dangerous Proximity Test see Peaslee, Rizzo, and Note 5 (pages 762-63)
Standard: A person is guilty of an attempt when his conduct is in dangerous proximity to success, or an act is so near to the result, that the danger of success is very great
This test incorporates the physical proximity test, but is more flexible Factors include (1) the nearness of the danger, (2) the greatness of the harm, and (3) the degree of apprehension felt
B. Attempt
Dangerous Proximity Test (continued)
Example 1: An actor is guilty of attempted drug distribution, when he orders contraband, meets the supplier, examines the goods, but rejects them on quality grounds Example 2: An actor is not guilty of attempted drug distribution who orders drugs from a supplier, says he will pay for them when he has sufficient funds, and schedules a later meeting to consummate the sale, but is arrested immediately
B. Attempt
Rizzo , p. 763
Facts? In the absence of any indication of actors intent, what did the police observe that was deserving of arrest?
Court holds that in the absence of a victim, the armed suspects were not dangerously close to success What if police had prior knowledge of the plan does this change the point at which police should be able to intervene? Arguably, although theres no physical proximity to the victim, could argue theres enough for dangerous proximity given the seriousness of the planned offense and the degree of apprehension felt by the officers
B. Attempt
Indispensable Element Test Mandujano (and footnote 5, at page 756)
Standard: For an attempt, an actor must have obtained control of an indispensable feature of the criminal plan Example 1: For attempted murder by shooting, the actor must possess a firearm Example 2: For illegally manufacturing drugs, the actor must possess the manufacturing equipment Example 3: For insurance fraud, the defrauder is not guilty of an attempt, based on his feigned death, until the innocent party files a claim (when a target offense requires action by an innocent person, an attempt is not made out until the action is completed)
B. Attempt
Probable Desistance Test Note 3, page 761
Standard: An attempt is made out when an ordinary person in the actors position has reached the point where, in the ordinary course of events, it is unlikely that he would have voluntarily desisted from his effort to commit the crime Example 1: An actor is guilty of attempted lewd and lascivious acts with a minor when he meets the intended victim as the latter exits a taxicab Hypo 2: D presents an altered (forged) prescription at a pharmacy falsely indicating she is entitled to multiple refills for a controlled substance. Note 4 p. 762. Majority: Not sufficient for attempt under the probable desistance test because there was a reasonable doubt as to whether she would return again to obtain the drugs. Dissent focused on forgery and presentment of forged prescription. Most people would desist before presenting it.
B. Attempt
Unequivocality or Res Ipsa Loquitur Test Note 2, pages 766-7
Standard: An act does not constitute an attempt until it ceases to be equivocal; an attempt occurs when a persons conduct, standing alone, unambiguously manifests his criminal intent Example: Miller, p. 765
Facts? Why does the court hold that theres no attempt? D is not guilty of attempted murder because it is unclear whether, at the moment rifle was taken, D intended to kill V or merely demand that C arrest V
B. Attempt
Clear criminal design plus slight acts in furtherance Stokes, note 1.B. p. 757 Example: D paid X, an undercover agent, a fee to procure a young girl for a sexual act. D selected a girl from a set of photos, and then went to buy a lubricant for the sex act and to rent a room where the sexual acts would occur. X arrested D as they approached the building where the fictional girl was supposed to be waiting. Note 1.a. p. 764.
Defense argued: no proximity and no victim (Rizzo) Van Bell: - clear design plus slight acts - Stokes Reed: Res ipsa loquituor and Stokes
B. Attempt
Hypo, note 1.b. p. 764. D had internet chats with V, someone D believed to be an underage boy with whom he wished to have sexual contact. But in fact was an adult undercover officer. D mailed a plane ticket and money for travel to V, and arranged for a taxi to bring V to Ds house. V arrested D for attempted lewd and lascivious act on a child under the age of 16 when D approached the taxi.
Hudson: Conviction affirmed under any of the three tests used in Florida (1) proximity; (2) probable desistance; (3) un-equivocality.
B. Attempt
* Model Penal Code Test Notes 1 & 2, pages 773-4
Standard: 5.01(1) provides that a person is guilty of an attempt if
(a) He purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be (b) When causing a particular result is an element of the crime, he 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, or (c)He purposely does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime
B. Attempt
* Model Penal Code Test (continued)
Examples (see 5.01(2)) p. 1004-5
Lying in wait; searching for or following the contemplated victim of the crime Reconnoitering the place contemplated for the commission of the crime Unlawfully entering a structure, vehicle or enclosure in which it is contemplated that the crime will be committed Possessing materials to be employed in the commission of the crime, that are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances Soliciting an innocent agent to engage in conduct constituting an element of the crime
B. Attempt
State v. Reeves, p. 768 Facts? Holding?
Court affirms Juvenile courts finding that the girls are delinquent based on attempted second degree murder. The actus reus of a substantial step is satisfied by: (1. possession of the materials to be used in the crime, 2. at or near the crime scene, 3. where possession of materials can serve no lawful purpose) if such conduct is strongly corroborative of the actors criminal purpose.
B. Attempt
Model Penal Code: Substantial Step
Intends to permit conviction at an earlier stage of the process Therefore focus is on the acts that have already been done, rather than on how much remains to be done. Easier to find substantial step than to demonstrate, say unequivocal conduct, probable desistance. Even if we find a substantial step present in Reeves, are those steps strongly corroborative of their intent when they have not placed the rat poison in the cup? Until they take that step, couldnt we argue that the girls in Reeves are only guilty of a childish fantasy?
B. Attempt
Problem 3, page 774 Attempted vehicle theft and residential burglary? Additional fact the police found burglary tools in the Ds possession.
Court affirms conviction MPC substantial step is c. reconnoitering with intent to burglarize and f. possesion of materials
B. Attempt
Note 5. p. 774. Conviction reversed not all talk about sex, met with her friend. Condoms just wishful thinking and fantasy Compare with: Hypo: W approached a 13 year old girl and asked her to come to his vehicle, and offered her money to help him drive around and look for a fictitious white dog. The girl refused. W charged with attempted kidnapping, attempted rape, attempted sodomy. Is he guilty under MPC or common law? Does evidence regarding his prior crime influence your decision?
Court affirmed under MPC approach substantial step is enticing the victim.
B. Attempt
An Initial Effort at Drawing the Preparation-Perpetration Line (pages 752-53) B. Attempt
See Facts p. 758 Is Anne guilty of attempted murder on January 15? On January 18? On both dates? If Anne is guilty, at precisely what point did the attempt(s) occur? What is your justification for drawing the line where you did? Do Alternatives 10A and 10 B affect your analysis? Where would the MPC Test draw the line? Suppose Step 1 and the final sentence of Step 5 are deleted (i.e., you know nothing about Annes intent except through her conduct). Do your answers change?
B. Attempt
c. Punishing Pre-Attempt Conduct (background)
B. Attempt
Punishing pre-attempt crime:
There is a trend toward legislative efforts to expand the scope of traditional inchoate criminal liability to deal with problems gaining modern attention (stalking) and new problems created by technology (the internet). There is an inherent tension in pushing criminal liability back toward the point that we punish thoughts rather than acts.
B. Attempt
Alkhabaz, p. 776 Holding: Def.s internet communications did not constitute a legal threat because they did not seek to accomplish some effect or achieve a goal through intimidation. Therefore D. cannot be charged with violation of a statute criminalizing interstate transmission of a threat.
Note: The court uses the definition of threat to make the crimes definition consistent with the legal value against punishing mere thoughts or fantasies where there is no sign that one intends to act on those fantasies.
B. Attempt
5. Special Defenses
Impossibility
Traditional Rule:
Factual impossibility: Is not a defense to a criminal attempt Pure Legal impossibility: Is a defense to a criminal attempt
B. Attempt
Factual impossibility: (no defense) This exists when a persons intended end constitutes a crime, but he fails to consummate the offense because of an attendant circumstance beyond his control
Examples: A pickpocket putting his hand in an empty pocket, or an illegal abortionist beginning a surgical procedure on a woman who is not pregnant Exception: Factual impossibility may be a defense when the target offense is inherently factually impossible (e.g., intending to sink a battleship with a pop-gun)
B. Attempt
Legal impossibility (pure form): (is a defense) This occurs when the law does not proscribe an actors conduct or desired result (such as when a person performs a lawful act with a guilty conscience), or the actors conduct is prohibited but cannot constitute the offense charged
Example 1: A person surreptitiously throws a Kansas steak into a garbage can, incorrectly believing this innocent conduct to be a crime Example 2: A man touches a womans breast, believing this to be rape
(although the man may be guilty of some form of assault, he is not guilty of attempted rape)
B. Attempt
Legal impossibility (hybrid form): This occurs when an actors goal is illegal, but the commission of the offense is impossible due to a factual mistake (and not just a misunderstanding of the law) regarding the legal status of some attendant circumstance that constitutes an element of the charged offense
Example 1: Example 2: Example 3: Example 4: Example 5: D receives unstolen property, believing it was stolen D tries to pickpocket the image of a human D tries to bribe a juror who is not a juror D tries to hunt deer out of season and shoots a stuffed animal D shoots a corpse believing it is a living human being
B. Attempt
Hypo: D goes duck hunting out of season. He shoots what he believes to be a duck, but it is actually a wooden decoy. Is this an example of factual impossibility, legal impossibility, or the hybrid form?
Hybrid form Ds goal was illegal, but its accomplishment was impossible due to a factual mistake (not a misunderstanding of the law) about the legal status of an attendant circumstance.
B. Attempt
The hybrid form of the legal impossibility defense is increasingly disfavored and has been abolished in most jurisdictions and by the MPC.
This form of legal impossibility is indistinguishable in many respects from factual impossibility The actor is equally dangerous as one who fails because of factual impossibility
B. Attempt
The rule of thumb: Impossibility can operate as a defense to a criminal attempt only in those circumstances where the defendant would not be guilty of the target offense if the facts had actually been as he believed them to be -
B. Attempt
People v. Thousand, p. 783 Facts? Holding?
The circuit court erred in quashing the charge of attempted distribution of obscene materials to a minor on the grounds of legal impossibility. The non-existence of a minor does not constitute a defense to the charge.
B. Attempt
The majoritys view of attempt is subjective focuses on what the actor thought he was doing, the dangerousness of the actor because of his subjective intent to create social harm.
Thousand thought he was sending indecent photos to a minor girl. He intended to do acts that in fact would constitute the an offense. He attempted to do so by sending them to Officer Liczbinski. He is not guilty of the completed offense, but he is guilty of attempting to complete the offense.
B. Attempt
The dissents view is objectivist: It focuses on the objective presence or absence of danger of creating the prohibited social harm.
Justice Kelly would argue that T intended to send his photos to Bekka and Bekka was an adult man. Sending indecent photos to an adult man is not a prohibited social harm. Therefore, no attempt. Did T actually intend to send the photos to Officer Liczbinski? Wasnt his intention to send his photos to a 14 year old girl?
B. Attempt
How would the MPC resolve Thousand? T. finished his last act in distribuing the photo. Therefore use either 5.01(1) (a) or (b) Distribution seems like a conduct crime use 5.01(1)(a) Did T purposely engage in conduct that would be a crime had the attendant circs [been] as he believed them to be?
Yes So T would be guilty under the MPC
B. Attempt
5. Special Defenses
B. Abandonment B. Attempt
Abandonment is recognized in most jurisdictions as a defense to a criminal attempt.
It must be voluntary It must be complete
Model Penal Code 5.01.4, also recognizes an abandonment (renunciation) defense
B. Attempt
Abandonment must be voluntary
Voluntariness must be the result of repentance and requires a genuine change of heart Abandonment is not voluntary if the actor is motivated by unexpected resistance Abandonment is not voluntary if the actor is unable to complete the crime because of inadequacy, etc.
Abandonment must be complete

Abandonment is not complete if the actor merely postpones his criminal endeavor until a better opportunity presents itself.
Commonwealth v. McCloskey, p. 797 Facts? Holding?

Majority says no attempt because of abandonment Concurrence says yes, attempt occurred, but the defendant has a complete defense because of his voluntary and complete abandonment
Purpose of Defense?
1. Gives a motive to desist 2. Those who desist negate conclusion that they are still dangerous
B. Attempt
Hypo: D, with the intention of raping V., grabbed V at a bus stop and forced her
at knifepoint to his home. Once there D pushed V on the couch and began to fondle her. In an effort to prevent being raped, V told D that she was trying to finish her education and had to get to school to take two examinations. V promised not to report D if he let her go. D. apologized, took V to the bathroom so V could fix her hair, and then walked V to the bus stop. Should D be able to defend against an attempted rape charge based on abandonment? People v. McNeal, Mich Ct. Ap.
B. Attempt
Should D. be able to defend against an attempted rape charge based on abandonment?
Probably yes The abandonment was voluntary, based on an apparent change of heart The abandonment was complete Note D remains criminally liable for any completed offenses (such as indecent assault and kidnapping).
Assault and Battery: Traditional Common Law

Battery an unlawful application of force resulting in either bodily injury or an offensive touching.
Mayhem unlawful application of force resulting in permanent injury A general intent crime (no need to show D intended to harm or offend V, only to do the act)
Assault Specific intent crime (must show D intended to harm V. or create apprehension in V.)
1. An attempted battery with present ability to do so 2. placing a victim in apprehension of an imminent battery.
MPC 211.1 Combines Assault and Battery into a single crime. Simple Assault =one who 211.1(a) attempts to cause or p.,k, or r. causes bodily injury or; 211.1(c) attempts by physical menace to put another in fear of serious bodily injury. Aggravated Assault: one who 211.1 (2) (a) Attempts to cause or p.,k, r. under circs manifesting extreme indiff. to human life, causes serious bodily injury (b). Attempts to cause or p. or k. causes bodily injury with a deadly weapon
Assault
Note 1, p. 802. Is this enough for an assault?

Common law: Probably not under typical legislation as described on p. 799. This requires closer proximity than normal attempt crimes. This is how Boutin actually was decided. MPC 211.1 = probably yes. Acts constitute a substantial step toward commission of the crime.
Note 2 p.803 What if Boutin had pointed a gun at opponent, instead of a bottle.
In similar case, Brooks, the court held that pointing a gun at someone coupled with a threat was an assault of the attempted battery variety. Guns are perhaps a separate category for proximity purposes. No need to be close and beginning to swing before the requisite proximity is found.

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Dressler Chapter 2, p. 29-50 and Handout

Criminal Law Section B

Criminal Law - Nature

Public officials enforce?

Anything called a crime is a crime?

Criminal Law Nature

Criminal conviction is stigmatizing and punitive in itself.

Criminal Law Nature

Criminal Law and Natural Law

Is the FSA a law pursuant to this definition?

Criminal Law, Nature and Limits

Criminal Law - Nature

Criminal Law - Nature

Criminal Law Nature

Criminal Law - Introduction

Now Legislature & Courts collaborate:

Criminal Law Processes

Proof of Guilt at Trial

What does it mean?

When is such proof required?

What must be proven beyond reasonable doubt?

Proof of Guilt at Trial

Proof of Guilt at Trial

Proof of Guilt at Trial

How would you vote as a juror

Proof of Guilt at Trial

What does legal sufficiency mean and how is it applied on appeal?

Proof of Guilt at Trial

Why does majority suggest?

Proof of Guilt at Trial

Why does jury nullification happen?

Effect Can defendant be retried?

Should juries be instructed of this power?

The Queen v. Dudley & Stephens: p. 48

Should society punish them?

Under Retributivist Theory

Rehabilitation: Seeking to improve the offenders character so he can function in society

Incapacitation: Physically prevents criminal from committing crimes through

Denunciation: Those who disobey criminal laws should be held up to the

a duty to protect the common good by curbing some

The Queen v. Dudley & Stephens: p. 48

Should society punish them?

Under Retributivist Theory

Rehabilitation: Seeking to improve the offenders character so he can function in society

Denunciation: Those who disobey criminal laws should be held up to the

a duty to protect the common good by curbing some

Deterrence and the natural law

Doubts about rehabilitation

Punishing a rehabilitated person

Applying the Theories

Was the judge more influenced by retribution or by utilitarian justifications?

Doubts about rehabilitation

Death Penalty issue:

Punishment and Catholic Teaching: -The state has

What question does this case present?

How does the dissent argue that this sentence is unconstitutional?

Modern Role of Statutes

Blacks law dictionary

Charged with violating this statute

Was his conduct a common law crime?

fluid) and therefore permissible.

Count the votes on the other sections of the opinion.