Criminal law in context

Rotten Social Background: The notion that b/c of a D*s deprived social background, his crime should be excused.

What makes a moral agent? Are choice available?

2 ways to think about it

As a variation of a cultural defense.

(more radical): society is in no moral position to judge.

Cultural defense: Should the state take the D*s cultural background into account?

What makes a moral agent? Are choices available?

Cultural defense is appropriate when D is ignorant of the law and committed the act b/c of ignorance; when D commits a crime b/c the values of his/her native culture compel him/her to do so.

State v. Kargar (Afghan refugee seen kissing son*s penis)

Did the legislature envisage this as a crime? de minimis statue.

D*s conviction vacated. Conduct not sexual

issues of proof

Supremes ruled in In re Winship (1970) that the Due Process clause requires the state to persuade the fact finder

*beyond a reasonable doubt*.

of every element of the crime.

Owens v. State (D found in driveway with motor running drunk; charged with drunk driving but no evidence that he had been driving)

Conviction affirmed. The totality of the circumstances are inconsistent with a reasonable hypothesis of innocense.

Can overturn at the appellate level on an issue of proof only when no rational jury could come to this conclusion. [But note: errors of law*i.e., jury instruction errors*are more broadly appealable]

jury nullification

Jury nullification is permitted, but it*s a power stemming from the 5^th Amendment*s double jeopardy clause, rather than a right.

If juries acquit when they should convict, the judgment is final.

Juries don*t get an instruction on jury nullification. It*s not respected within American legal opinion.

Paul Butler argument: Black America is in a state of crisis and b/c blacks get outvoted in the political process, jury nullification is one way to deal with the disproportionate impact of the criminal law on blacks.

traditional justifications of criminal law.

People v. Du (Asian grocer who shot 15 yo seeming shoplifter following a physical fight; store in bad neighborhood)

jury found Du guilty of voluntary manslaughter, rejecting defense argument that the killing was unintentional and in self-defense.

Du received 10 year suspended sentence and was placed on probation.

Utilitarian: People are punished to serve a large social goal; punishment works b/c we are pain avoiders and pleasure seekers.

Deterrence.

2 types

Specific: Deterring the law-breaker.

General: Deterring everyone.

Background conditions required for deterrence to work

adequate information about the law (can*t deter people who don*t know the law); punishment must be harsh, swift, certain; people are rational utility maximizers.

rehabilitation: Changing the person*s character; offering them a better way to live.

Critique: cost; dignity argument (e.g., chemical castration for sex offenders); govt using people as objects of social control.

incapacitation: If people are locked up, they will not be committing crimes.

Critique: doesn*t get to root cause of crime; cost; Certain kinds of crime are market dependent (*slots* theory)

Non-Utilitarian: Moral nature.

retribution*Moral outrage and *sense of justice*. Holding individuals morally responsible for their actions/choices.

2 versions*

on the individual and the individual*s culpability*supported by the MPC;

focusing on the societal harm that has been done. This is more amenable to the CL

Limitations to punishment

8^th Amendment: *Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. [Summary: *Death penalty is different*; *grossly disproportional* is to be measured by the inherent gravity of the offence, according to Kennedy*s controlling opinion in Harmelin; Solem might or might not be still alive; it*s unclear.]

Supremes rule (1910) that 8^th Amendment was directed not only against torture, but against all punishments that by their excessive length/severity are *grossly disproportionate* to the offense charged. But what is *grossly disproportionate*? SC has struggled.

Coker v. Georgia (Prison escapee who raped while out; sentenced to death)

Death sentence for rape is grossly disproportionate

NOTE: A punishment is excessive and unconstitutional if

it makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless imposition of pain and suffering OR

it is grossly out of proportion to the severity of the crime.

Harmelin v. Michigan (Life sentence for possession of 672 grams of cocaine)

Upheld. The 8^th Amendment on *cruel and unusual punishment* contains no proportionality guarantee. *A state is entitled to treat with stern disapproval an act that other states punish with the mildest of sanctions* Scalia wants to overturn the Solem v. Helm test, but Solem is still (arguably) good law b/c the Kennedy opinion controls.

Solem v. Helm test: 3 factors to balance in weighing 8^th Amendment issues

inherent gravity of offence.

sentences imposed in the same jurisdiction for similarly grave offences.

sentences imposed for the same crime in other jurisdictions.

Coker v. Georgia is distinguished b/c *death penalty is different*

Kennedy opinion: The 8^th Amendment does not require strict proportionality between crime and sentence; rather, it forbids extreme sentences that are *grossly disproportionate* to the crime.

Riggs v. California (cert denied on CA*s 3 strikes law; But 4 justices wrote a note about the case)

Suggests *grossly disproportional* and Solem test are still in play.

Harris*s guess: If a case comes up, *grossly disproportionate* test would survive, but Solem would be overturned or considerably narrowed.

14^th Amendment

Equal Protection:

McCleskey v. Kemp (African American death penalty appeal)

Statistical patters of discrimination in the application of the death penalty is inadequate to prove a due process violation. Must show *purposeful* discriminatory intent.

Dissent by Marshall: Accuses the court of being afraid of *too much justice.*

Due Process:

void for vagueness doctrine.

The legality principle: No person shall be criminally punished except pursuant to a clearly written statute.

E.g., Your client tried to pick someone up in a toilet and is being charged under the law: *Any person who commits the abominable and detestable crime against nature, either with mankind or beast, shall be guilty of a misdemeanor*. Is this clearly written enough? No.

2 prongs to the doctrinal argument of due process and void for vagueness*

It*s vague if the law fails to give fair notice; a reader of the law might not know what is prohibited.

It*s vague if it gives unfettered discretion to the authorities (b/c anything could be a *crime against nature*).

Note: tight link between fair notice and fettered discretion for the authorities; making the law clear and public is one way of limiting discretion of the police.

Secondary point: liberty argument. Need to protect people*s individual liberty. It*s not right to chill the range of a citizen*s conduct by making him guess at what the law is.

In re Banks (D charged with being a *peeping tom* which makes it illegal to *peep secretly into a room occupied by a female*)

A criminal statute must be sufficiently definite to give notice as to what conduct must be avoided and to guide the judge in the application of the law

In this case, however, it*s clear what a *peeping tom* is.

Papachristou v. City of Jacksonville (D convicted under statute that prohibits *prowling by auto* and more general vagrancy statutes)

This is unconstitutional b/c of void for vagueness doctrine. The statute is overbroad b/c it includes activities as well as conduct that is perfectly innocent. This overbreadth is due to vagueness, and it allows the authorities to arrest anyone whose presence is a mere annoyance. It provides no clear standards of prohibited conduct.

Statutory Interpretation: How courts should look at statutes.

Rule of lenity: where a criminal law is ambiguous, the court should NOT impose criminal liability for conduct that the law does not clearly prohibit. E.g., *

United States v. Foster (D was convicted of drug possession and *carrying* a firearm which added 5 years to his sentence, but the gun was in the back of his pick-up. What does *carry* mean?)

*Carry* means within hand*s reach. Not to be defined broadly b/c of rule of lenity.

Judges need to interpret statutes carefully.

MPC provisions are less vague than CL b/c of the MPC*s precision. [?]

General principles of criminal law

Actus reus: The physical or external part of the crime. Umbrella principle that holds together independent overlapping doctrines.

3 types of actus reas social harm

conduct elements (e.g., drunk driving)

result elements (e.g., dead person as a result of murder)

attendant [accompanying] circumstances (e.g., a condition that must be present in order to constitute a crime)

Limitations

No thought crimes. Must be an act. Controlling thoughts is anti-liberty.

situational offenses (the police creating the situation the D finds himself in); no voluntary offense. (e.g., Martin v. State).

Martin v. State: (D convicted of being drunk in public; but it was the police who pulled him out of his house)

This was not a voluntary breach of the law, and thus is not punishable. No actus reas.

The courts deal with police misconduct through statutory interpretation.

Involuntary/Unconscious acts. D didn*t act voluntarily b/c it was a reflex, seizure, etc..

People v. Decina (D convicted of hitting 4 children while driving; had epileptic seizure)

Majority: conviction upheld; D knew he was prone to seizure and shouldn*t have been driving.

Dissent: D did not violate the statute against reckless driving voluntarily.

NOTE: time-framing (Mark Kelman*s argument) is important in determining D*s culpability.

MPC 2.01: the following are NOT voluntary acts:

reflex/convulsion

bodily movement during unconsciousness or sleep

conduct during hypnosis

Any bodily movement that is otherwise not a product of the effort of the actor, either conscious or habitual..

State v. Utter  (After drinking all day, D stabbed son when he came home; D remembers nothing; Defense introduced evidence that D was a WW2 veteran and introduced evidence regarding conditioned response**an act or pattern of activity occurring so rapidly as to be automatic in response to certain stimulus*; D argued he was not culpable b/c he was in an automatistic mode or unconscious at the time; Judge instructs that this is not a defense and should be disregarded; jury convicts of manslaughter.)

Unconsciousness is a complete defense.

In this case however, the unconsciousness was wilful, induced by drinking. Hence D*s conviction is upheld.

This outcome is understandable from a time-framing perspective.

omissions*In most instances (in CL and MPC), D*s failure to act cannot be an actus reas of a crime.

People v. Beardsley (D*s mistress took an overdose of morphine and died; D left her while she was in a stupor. D was tried for failing to secure medical treatment for her and convicted of manslaughter)

Overturned. No legal duty to act.

The punishment can only be *moral censure* but not criminal sanction.

Barber v. Superior Court (withdraw feeding tube from comatose patient at family*s wish; Doctor charged with murder)

Doctor is under no legal duty to provide care, absent family objection.

Court views this as act of omission rather than affirmative action.

Meta-point on this case: The decision to characterize something as an omission rather than an act can be manipulated.

Exceptions to the omission rule:

domestic relationship (i.e., family, parent-child)

duty based upon statute (i.e., if the law said a driver must stop to give aid to those injured in an accident)

public (firefighter/policeman) or contractual (lifeguard) duty

voluntary choice (once you have assumed responsibility and started assisting, you can*t then abandon the party)

When the peril is your fault. (i.e., you hit them with your car)

controlling the acts of a charge (i.e., a parent must protect others against known propensities of his child)

duties of a landowner [?]

NOTE on assisting injured/reporting crime

Kitty Genovese and the *bystander effect*: when 30 people know of a crime, people are likely to think someone else will report it; when only they know of it, they will report it.

No duty to report a crime prior to its commission (Oklahoma bombing case) nor after its crime (but Federal statute prohibits *actively concealment* but not simple non-disclosure).

Mens rea; the mental or internal ingredient of the crime. Radical differences between the CL and the MPC

CL: culpability approach w/ specific and general intent and a wide range of descriptive terms that can be used within the statute (e.g., malice, intent, corrupt, etc.).

Regina v. Cunningham (D stole the $$ from the gas meter box, allowing gas to escape, partially asphyxiating a resident; trial judge instructed jury that they could convict, even if they found that D did not intend to harm victim, as long as he acted maliciously and unlawfully, and the judge defined malice as wickedness; D was convicted and appealed)

D can apppeal. Malice doesn*t mean wicked; rather it*s a term of art meaning either actual intent to do a particular harm OR recklessness as to whether a harm would occur. This should have been for the jury to decide.

NOTE: This case illustrates two approaches to mens rea

Older imprecise approach: Blameworthiness. Is the D wicked? Malice = bad person.

Modern more precise approach: We need to know what was going on in D*s mind. Malice can mean 1) intent or 2) recklessness.

Proving intent with the natural and probable consequences doctrine:

One intends the normal and probable consequences of one*s actions; intent can be inferred from the circumstances surrounding the crime.

This gets around the defense of *I didn*t intend that particular outcome,* e.g., permanent disfigurement after I attack with a broken bottle.

Transferred intent applies. E.g., You are trying to kill A, kill B instead, transferred intent applies.

Dressler: we don*t really need it in the CL, however. E.g., most crimes of murder only require that the D intended to have killed a human being, not a particular human being.

Specific vs. General intent

General intent: When no specific mental state is required, and all the prosecutor needs to prove is the actus reas of the crime. Requires that the actor generally intended to commit the acts that were wrong. Crimes that neither specify the actor*s intent, nor leave it out entirely.

E.g., Battery: the intentional application of unlawful force to another person.

E.g., 2^nd degree murder: killing a human being with malice.

Specific intent: any offense in which a particular mental state is set out expressly in the definition of the crime. Requires some further mental state. Crimes with definitions that describe what the actor was thinking at the time of the offense.

E.g., Burglary. What had to be on the defendant*s mind? The intent to commit a felony.

E.g., hindering prosecution.

Conditional intent applies

Halloway aka Abdu Ali v. United States (car jacking statute. Car jacking *with intent to cause death or serious bodily harm* is a crime.)

What happens when intent is conditional? i.e., I will harm you only if you DON*T give me your keys.

Supreme Court rejects this interpretation of intent, finding this within Congress*s intent with the statute. Keeps conditional intent.

Scalia*s dissent: There is no such thing as conditional intent.

Wilful blindness can be intent.

State v. Nations (underage girl dancing in strip club; owner wilfully blind)

While wilful blindness can be intent, in this case there was not enough evidence to suggest the girl was under 18.

D needed to have actual knowledge of the attendant [accompanying] circumstances for this to have been a crime.

Statutory interpretation: Court will determine what Congress means by *intent*

United States v. Morris (D unleashes computer virus which reproduces more quickly than D had anticipated; D charged under statute which punishes anyone who intentionally accesses Federal computers and damages or prevents their use; D convicted; appeal on grounds that Govt did not show he intended to prevent others from using their computers]

Conviction upheld on the basis of a statutory interpretation of what Congress meant by *intent*

strict liability: courts will sometimes read into a statute that has no mens rea a requirement a strict liability element (i.e., just the actus reas is enough)

Examples

regulatory offenses (environmental pollution)

public welfare offenses (e.g., food/drug regulations; firearms)

Major exception to the mens rea requirement: statutory rape.

felony murder (although the state still has to prove the mens rea for the underlying felony).

In the absence of mens rea language, the court must decide whether the crime is a general intent crime or a strict liability crime. How to decide? What is congressional intent? Is this a statute that falls within the CL tradition of carrying a mens rea?

Heavy penalty probably means that it*s not a public welfare offense, but rather a general intent mens rea requirement.

Staples v. United States (D owned a rifle converted into a machine gun; D was convicted of unlawful possession of an unregistered machine gun; D asked for instruction that govt must prove beyond reasonable doubt that D knew the gun would fire automatically; D was convicted and sentenced to 5 years)

Reversed. The sever penalty suggests the firearms law had a mens rea element to it; in such a case, the usual presumption is that D must know the facts that make his conduct illegal.

Dissent: This was not a gun that could be owned in innocence.

Garnett v. State (mentally retarded 20yo has sex with 13yo girl. Convicted of statutory rape; appealed on the grounds of good faith mistake that D thought the girl was of age)

The statutory rape statute has no mens rea element and therefore is strict liability. Affirmed. If the legislature wanted to fix it, they would.

NOTE: Some states statutorily permit mistake to be a defense against statutory rape.

Arguments in favor of strict liability:

General deterrence (encourage people dealing with hazardous materials to take extra caution/may discourage people from going into a field.

Tort-like arguments: least cost avoider; putting burden on the person who causes the harm.

Criticisms of strict liability:

It does not deter since the actor, by definition, is unaware of the facts that render his conduct dangerous.

It is unjust to condemn a person who is not morally culpable.

Mistake of fact vs. Mistake of law

Mistake of Fact: A mistake of fact, if reasonable, ordinarily exculpates a D being prosecuted for a general intent crime.

People v. Mavarro (D stole 4 wooden beams from construction site; his defense was that the property was abandoned or that the owner had no objection; he was convicted and appealed on the issue)

He lacked the mens rea if he had a good faith belief that the property was abandoned or that he had permission.

Mistake of law: Ignorance of the law is not a defense.

People v. Marrero (D was a federal corrections officer; he traveled to NY with a handgun under the mistaken belief that a law allowing state corrections officers to carry guns applied to him. He was charged and convicted. He appealed on a mistake of law argument)

Affirmed. A good faith mistaken belief as to the meaning of a criminal statute is not a defense to a violation of the statue.

NOTE: 3 exceptions

If D had gone to proper authorities and gotten an opinion (that later turned out wrong) that his conduct was lawful, he would have a mistake of law defense on the basis of estoppel. This exception is in the MPC at 2.04(3)(b).

Lambert v. California (cb 187). A defense that people who have no reasonable duty to know the law cannot be convicted. But confined to where there is an omission rather than an act; when the duty is so obscure you would have no reason to know of it.

Cheek exception that Congress has carved into tax law b/c of its complexity.

Cheek v. United States (D was tax evader who attended seminars and did his own study of the revenue code. D ceased to file taxes under the alleged belief that the tax code did not apply to him; he was convicted and appealed on the grounds of mistake of law that Congress has explicitly carved out of the tax code b/c the tax code is so complex)

Affirmed: This was not a mistake of law. D knew his obligations to pay taxes and wilfully disregarded them. Willful = known legal duty.

But NOTE that Congress has carved out an exception in the tax law b/c of its complexity.

Sillasse Bryan, Petitioner v. United States (Petitioner was convicted of *wilfully* dealing in firearms w/o a license. Appeal on the question of whether *wilfully* requires proof that D knew that his conduct was unlawful or whether it also requires that he knew of the federal licensing requirement)

All *wilfully* requires is that D knew that his conduct was unlawful.

Specialized knowledge of the law is not required to be culpable.

MPC 2.02: Precision with 4 mental specified states for the mens rea. [NOTE People v. Conley: The jury can infer a mental state]

4 specified mental states.

purposely: (common law equivalent is intent)

If the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause the result.

If the element involves the attendant [accompanying] circumstances, he is aware of the existence of such circumstances or believes/hopes they will exist.

Knowingly: (common law equivalent is intent)

If the element involves the nature of his conduct or attendant [accompanying] circumstances, he is aware that his conduct is of that nature or that such circumstances shall exist

If the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

Wilful blindness can be the same thing as knowledge. MPC 2.02(7). State v. Nations (under-age girl dancing at strip club). MPC 2.02(7).

People v. Conley (D hit victim in face with broken bottle after asking him for a can of beer; victim had disabling injuries. D convicted and appealed, saying that he did not intend to disable victim)

Conviction affirmed; battery statute uses the term *knowingly*. MPC 2.02(2). D was aware that it is practically certain that his conduct will cause the result.

The jury can infer a mental state.

Recklessly (partially subjective; must show D showed disregard for the risk)

involves knowledge of a risk. Conscious disregard of a substantial and unjustified risk, and the D has to be consciously aware of the risk.

Negligently (different in that it does not assume a state of awareness, rather should the D have been aware)

The person should (but may not be) aware of the substantial or unjustified risk. (e.g., a reasonably person would realize the risk with leaking gas).

If there is no mens rea language in the statute**when the culpability sufficient to establish a material element of an offense is not prescribed by law**you can have culpable mens rea if the person acts purposely, knowingly, or recklessly [but not negligently!] MPC. 2.02(3).

Substitutes for negligence, recklessness, and knowledge: MPC 2.02(5)

Substitutes for negligence: If the law provides that negligence suffices to establish an element of an offense, the element is also established if the person acted purposely, knowingly, or recklessly.

Substitutes for recklessness: If the law provides that recklessness suffices to establish an element of an offense, the element is also established if the person acted purposely or knowingly.

Substitutes for knowingly: When acting knowingly suffices to establish an element of an offense, the element is also established if the person acted purposely.

If there is some mens rea language in the statute, but the crime has different clauses, we apply the mens rea language to all elements of the crime. E.g., United States v. Morris (computer virus case). MPC 2.02(4).

Conditional purpose: NOTE: under MPC 2.02(6), the mens rea requirement is satisfied if the purpose is conditional. [e.g., my purpose was to harm you only if you interfered with my car jacking; Halloway aka Abdu Ali v. United States]

Transferred intent applies. MPC 2.03(2)(a).

Strict Liability: MPC rejects strict liability b/c no mens rea is required.

Mistake: The mistake of fact/law distinction is irrelevant in the MPC.: The only issue is whether the mistake negates the purpose/belief necessary to establish a material element of the crime. Thus in People v. Marrero under the MPC, D would have been acquitted.

Homicide

Cheat sheet summary

Common law

Murder: unlawful killing with *malice aforethought*. What does *malice* mean? Includes

intent to kill

State v. Schrader (D killed victim as a result of a sudden sharp argument; D appealed conviction on the basis of jury instructions rendering unnecessary any set length of time for the existence of an intent to kill; I.e., D wanted to charged/convicted of manslaughter)

Conviction upheld. Intent to kill need only exist for an instant.

Most jurisdictions have accepted this position that intent can be formed in the blink of an eye.

intent to cause grievous bodily harm

abandoned and malignant/depraved heart murder. Circumstances that give rise to an implied or presumed intent to kill/injure, but the essential concept is one of extreme recklessness re homicidal risk. You acted in a crazy way, you knew there was a risk of death, but you did it anyway.

Basic elements from Berry v. Superior Court: (p. 270)

high probability that the conduct will result in death.

subjective appreciation of the risk

base anti-social purpose/motive.

intent to commit a felony. Strict liability for a murder committed during a felony.

Degrees of murder:

1^st degree murder: The wilful killing with deliberation and premeditation.

Midgett v. State (father beat his son; 4 days later, brought son to hospital where son died from internal bleeding; D convicted of 1^st degree murder; Appeal on the grounds that there had been no showing of pre-meditation)

Conviction reduced to 2^nd degree murder; no premeditation when father killed son b/c of child abuse, but reckless disregard for human life.

State v. Forrest (son kills terminally ill and suffering father in hospital; convicted of 1^st degree murder; appealed)

Conviction affirmed. This was a wilful killing with deliberation and premeditation

2^nd degree murder: Unlawful killing w/o premeditation, characterized by either an intent to kill or a reckless disregard for human life.

Manslaughter: Residual category of killing w/o malice aforethought.

Voluntary manslaughter: heat of passion upon adequate provocation. (reduced murder charge to manslaughter charge; can be seen either as a justification*what I did was right*or as an excuse*what I did was wrong, but understandable)

E.g., killing spouse who was in the arms of someone else; Director of Public Prosecutions v. Camplin (D is 15 yo boy who killed his sodomizer)

Elements for heat of passion

An intentional homicide committed w/ the malice aforethought required for murder.

casual connection to the victim (i.e., can*t kill bystander).

actual heat of passion.

Determined by the *reasonable person* standard/test that embodies both objective and subjective elements.

Laurie Taylor Feminist critique (notes 2/22): men kill more often under heat of passion; its gendered; the defense/excuse is set up in response to male violence.

What might we do if we buy Taylor*s defense? different rules for men and women; maybe ask the jury to put itself in the shoes of the actor and ask for a subjective standard rather than a reasonable man standard; cumulative terror (as a result of abuse) should be an excuse, but cumulative rage should not be)

Girouard v. State: (newlyweds; wife tells husband she wants divorce, taunts him, etc. He kills her then unsuccessfully tries to commit suicide; at trial he attempts to have murder charges reduced to manslaughter on a heat of passion doctrine; convicted of 2^nd degree murder; appealed)

Affirmed. Rule from Girouard: Words are not enough to mitigate.

People v Cassassa ( D becomes obsessed with neighbor; she rejects him; he kills her in a passion; trial court rejects his argument that he was in extreme emotion disturbance sufficient to reduce murder to manslaughter; Convicted of 2^nd degree murder)

Whether D was sufficiently emotionally disturbed contains both subjective and objective elements. Subjective: was the D under extreme emotional disturbance?; objective: was the disturbance reasonable.

In this case, D*s disturbance was not reasonable. Affirmed.

sudden (no cooling allowed)

People v. Albert Joseph Berry (Husband kills wife after repeated taunting. Husband appeals on the basis of uncontrollable rage defense flowing from provocation and diminished capacity

New rule: There can sometimes be cumulative rage.

Important in loosening up the notion of cooling time.

Donna Koker critique: Research on battering men who kill spouses don*t fit the profile of people who suddenly *lose it*.

adequate provocation

what does this mean? Girouard v. State: *calculated to inflame the passions of a reasonable person; e.g., spouse in bed with someone else; judges give explicit instructions on this to juries. [NOTE: The CL *reasonable person* standard is more objective than the MPC 210.3(1)(b)]

Director of Public Prosecutions v. Camplin (D is 15 yo boy who killed his Middle-Eastern [why tell us this?] middle-aged sodomizer when he laughed at him; Jury found D guilty of murder; appeal on reasonable person standard)

Reversed. When applying reasonable person standard for provocation, you take into account the age (15 yo) that will affect temperament as well as physique. No expectation of the same power of self-control in a 15 yo as an adult; no requirement of an *old head on young shoulders*

What should be taken into account in reasonable person standard? Age, sex, ethnicity. What shouldn*t be taken into account? temperament, personality characteristics. Can say *reasonable 15 yo* but not *reasonable drunk*.

NOTE: The reasonable person standard is likely to reflect cultural prejudices.

Robert Mison: Homosexual advance should not be adequate provocation for killing. It justifies homophobia, suggesting that it is reasonable to be homophobic. Not acceptable.

Criticism: If we make the *reasonable person* an ideal, then we*ve eliminated the entire defense, as when is it ever *reasonable* to kill?

Some courts have upheld homosexual rage defense (killing someone who claims you are homosexual).

Rationale for reasonable person standard: concession to human frailty/human heart.

Critique:

Places the focus on the victim*s behavior, not the D*s. Sense of victim*s that *deserved it*

Should the reasonable person be an ideal or an average?

Should we have heat of passion as an excuse? Should it be abolished?

Historically, it reflects a certain view of marriage and patriarchy.

People ought to be able to control themselves. You shouldn*t fly off the handle and kill people.

Need to abolish/update categories. It may have been true that at one time, the worst thing that could happen was adultery, but not any more.

Donna Koker: Research on battering men who kill spouses don*t fit the profile of people who suddenly *lose it*.

The hot/cold blooded distinction does not hold up to research into why people kill; there are elements of both.

Taylor*s criticism: (notes 2/22)

Doctrine is sexist; violence is gendered; male culture is given doctrinal expression through heat of passion doctrine.

What might we do if we buy Taylor*s defense?

gender equality requires the doctrine be changed to allow male/female killings in heat of passion doctrine. More cumulative terror excuse which is response to physical abuse.

Equality means that men*s and women*s violence is not equivalent.

Killing out of wounded honor is not OK. Cumulative rage.

Killing as a result of battery is. Cumulative terror.

maybe ask the jury to put itself in the shoes of the actor and ask for a subjective standard rather than a reasonable man standard.

Argument re the whole heat of passion analysis: MOST REASONABLE PEOPLE DON*T DO THIS.

Involuntary/negligent manslaughter: unduly dangerous to life/limb, with greater culpability than civil wrongful death. A killing that does not rise to the level of abandoned and malignant heart. Not a conscious deliberate risk, but rather someone who was grossly negligent.

Key difference between murder and involuntary manslaughter is the D*s subjective awareness of the risk.

This is why Berry was murder and not involuntary manslaughter.

This is why the drinking slogans in Hernandez were at issue: they show subjective awareness of the risk of drunk driving, and would thus be supportive of a charge of 2^nd degree murder rather than manslaughter.

Berry v. Superior Court: (Neighbor*s outdoor chained dog killed small children; dog was chained in backyard to guard marijuana plants; D was charged with 2^nd degree murder; D appeals for involuntary/negligent manslaughter)

D charged with 2^nd degree murder. D knew of the risk. Sufficient to justify a murder charge on an implied malice theory, a failure to take actions that a reasonable person would take to prevent death.

D acted with *abandoned and malignant heart* MPC discusses this in terms of recklessness.

State v. Hernandez (drunk driver killed passenger; charged with involuntary manslaughter. D had stickers celebrating drinking in his truck; they were admitted into evidence.)

A person acts with criminal negligence when he fails to be aware of the substantial and unjustifiable risk that will follow

Stickers were prejudicial. Therefore, conviction reversed.

Dissent: Stickers/slogans should have been admitted to show awareness of the risk.

State v. Williams (Native American parents who didn*t seek medical help for child with toothache; developed into gangrene; parents feared authorities would take boy away if they saw how he looked; boy died. Parents were convicted of involuntary manslaughter; appealed).

Ordinary negligence can serve as the basis for a conviction of involuntary manslaughter. The boy*s condition was apparent. [but this might be difficult*it was apparent to * reasonable person* but these parents were poorly educated; maybe a different standard is called for]

NOTE: this is negligence by omission (failing to get medical attention for the boy).

In criminal law, the standard is usually *gross negligence*

[in California only] vehicular manslaughter. Killing someone with your car.

Most states protect fetuses (with due allowances made for legal abortions).

1 year and a day rule (Old common law rule): you are the cause of death and can be culpable for homicide if the person dies within 1 year and 1 day after the crime you committed. According to Harris, the rule is being eclipsed by medical technology.

People v. Eulo (Ds shot their victims in the head; Victims were brain dead but were kept alive on life support; families pulled the plug; Ds argue that they were not the cause of death).

Ds convicted.

MPC 210 on homicide

3 kinds of criminal homicide (210.1): purposely, knowingly, recklessly, or negligently causing death of another.

Murder (210.2) [note: No degrees of murder] Criminal homicide is murder when

it is committed purposely or knowingly OR

it is committed recklessly [but not negligently] under circumstances manifesting indifference to life. [equivalent to CL negligent homicide or depraved indifference]

NOTE: such recklessness/indifference is presumed when killing occurs in the commission of, as an accomplice to, or in flight after robbery, rape, arson, burglary, kidnaping, felonious escape.

manslaughter (210.3)[note: no voluntary/involuntary distinction; nothing on provocation.] Criminal homicide is manslaughter when

it is committed recklessly OR

it is a homicide that would otherwise be murder except for that it is committed under the influence of extreme emotional disturbance for which there is reasonable explanation or cause, to be determined by a subjective standard (i.e., from the viewpoint of someone in the actor*s shoes; thus the MPC is more subjective than the CL) [This retains the hot/cold blooded distinction in the MPC] [MPC seems to sanction violence; emotional disturbance is from the perspective the D]

People v Cassassa ( D becomes obsessed with neighbor; she rejects him; he kills her in a passion; trial court rejects his argument that he was in extreme emotion disturbance sufficient to reduce murder to manslaughter; Convicted of 2^nd degree murder)

Whether D was sufficiently emotionally disturbed contains both subjective and objective elements. Subjective: was the D under extreme emotional disturbance?; objective: was the disturbance reasonable. see 210.3(1)(b)

In this case, D*s disturbance was not reasonable. Affirmed.

negligent homicide. Criminal homicide is negligent homicide when committed negligently.

Felony murder: Homicide that occurs in the perpetration of certain felonies is charged as murder.

Felony murder is in both CL and MPC.210.2(1)(b)

Strict liability: needs the mens rea only for the underlying felony, not the murder itself.

But the list of felonies has been expanded by legislatures, and thus the F-M rule can yield startling results*e.g., owner of a liquor store becomes subject to murder if his underage purchaser falls asleep on the way home and dies of exposure.

People v. Stamp: (victim has a heart attack during a bank robbery; D charged with F-M; D argues F-M rule is inapplicable b/c he had not intentionally caused the heart attack and had no way of knowing victim*s susceptibility. D convicted and appeals)

Affirmed. The F-M rule applies whether the killing is wilful and premeditated, or merely accidental and unintentional, as long as the killing is the result of the robbery.

People v. Fuller: (D was stealing tires; police noticed and began to investigate; D flees in his car and kills people in an auto accident; D charged with 1^st degree murder; dismissed; state appeals)

The charge of 1^st degree murder is supported. CA penal code stipulates that a murder in the course of a burglary is 1^st degree murder.

Criticism of FM

It doesn*t require specific intent other than the underlying felony.

It creates anomalies in outcomes*murder charges rest on whether car doors were locked.

We shouldn*t be doing retribution.

NOTE: CA*s Supremes have repeatedly emphasized that the F-M rule, while the law of the state, is disfavored; consequently, CA has given the rule the narrowest possible application consistent with its deterrent purpose (to deter those engaged in felonies from killing).

Defenses of the F-M rule

deterrence (but how does one deter an unintended act?); it*s a clear and simple rule.

transferred intent; culpability is transferrable w/o the required mens rea.

retribution (evil mind theory). Simple moral harm doctrine. It*s fair to hold D responsible.

general culpability.

FM reflects societal condemnation and society*s sanctity for human life.

Judge-made limitations on felony murder. (Tomkovicz: restrictions are placed on F-M b/c w/o restrictions, we would not like the outcomes*e.g., Ds engaged in felonies that are neither risky nor inherently immoral could be convicted of murder; individuals would be punished w/o fault and there would be an increasing disparity between fault and punishment.) NOTE: The inherently dangerous rule and the merger rule narrow the scope of the felony murder rule drastically.

*inherently dangerous* rule: F-M may be applied only to *inherently dangerous* felonies that, by their very nature, present a great danger of causing serious death or bodily harm. This has been the court*s response to the expansion of the number of crimes called felonies.

2 part test:

Is the core behavior of the offense inherently dangerous?

Do the factors that elevate the offense to a crime show great bodily harm?

People v. Burroughs (D was a *healer* practicing medicine w/o a license. D*s *treatment* hastened victim*s demise and death. D was charged with the felony of practicing medicine w/o a license and FM for the death; convicted of 2^nd degree murder; appealed)

Reversed. Practicing medicine w/o a license is not an *inherently dangerous* activity.

merger/*independent felony* rules: the FM rule is inapplicable where the murder is based upon a felony that is an integral part of the homicide.

People v. Smith (Parents abused child, resulted in child*s death. Charged with the felony of child abuse and the murder from FM; convicted of 2^nd degree murder; appeal)

Reversed. The murder was based upon and a result of child abuse. The felony of child abuse was integral to the homicide.

NOTE: w/o this rule, FM would swallow all other murder distinctions.

*in furtherance* rule: the death must result from an act *in furtherance* of the crime, not simply an accidental death.

King v.Commonwealth (D was marijuana importer who was flying plane with pot very low to avoid detection; crashed into a mountain. Passenger was killed; D survived; D was charged with felony of drug importation and FM)

Reversed. The killing has to be *in furtherance* of the crime, not incidental to it.

agency rule: Deaths caused by an adversary to the crime are not subject to FM.

State v. Bonner (D attempted to rob a restaurant. During the robbery, a security guard shot and killed two robbers; Ds were convicted of robbery and FM)

Reversed. Ds were not the agents of the deaths b/c the guard was not acting in concert with the Ds (if the guard was, then the FM rule would have applied b/c of vicarious liability for co-conspirators).

NOTE: CA courts have found a way around the agency rule by emphasizing reckless behavior. Taylor v. Superior Court, pp. 311-312.

Misdemeanor-manslaughter. Parallel to the F-M rule. Can be charged with manslaughter if killing occurred as a result of a misdemeanor. E.g., Case in Florida in which teens removed stop signs (misdemeanor) resulting in traffic deaths. Vandals drew 15 year terms.

Limitations: *in furtherance doctrine* (see above); must be negligence on D*s part for strict liability crimes; *Inherently dangerous: rule (e.g., taking down stop signs).

NOTE: MOC has abolished Misdemeanor-Manslaughter rule.

Capital murder/Death penalty

Furman v. Georgia: SC set aside the death penalty and issued fractured opinions.

Net holding: Death penalty could not be imposed under sentencing procedures that created a substantial risk that the sentence would be imposed in an arbitrary and capricious manner.

Consequently, states separated the trial from the penalty phase in capital cases, as outlined in MPC 210.6.

MPC 210.6: Sentencing phase includes mitigating/aggravating elements (list)

Gregg v. Georgia: SC reinstated the death penalty by setting up a bifurcated process.

Holding: GA*s death penalty (separating trial from sentencing; specifying necessary aggravating circumstances) is not violative of the 8^th Amendment cruel and unusual punishment ban b/c it does not give juries unfettered discretion.

NOTE: When NC made the death penalty automatic in all 1^st degree murder cases, SC struck it down in Woodson v. North Carolina as not giving juries enough discretion.

Lots of info in supplemental reading re the possibility of error in the application of the death penalty, given ineffective counsel.

David Cole: Impossible to have a criminal law that applies to everyone equally in a society that is so unequal; Can*t have a fair death penalty under SC*s Gregg procedures while there is inadequate access to counsel.

Payne v. Tennessee: (murderer of mother; son survived; grandmother at sentencing described murder*s impact upon the boy)

SC held that victim impact statements may be presented at the sentencing hearing.

Tison v. Arizona: (2 adult sons assist in the jail outbreak of their father; killing by escapees occurred in the process; Ds charged with FM and given death sentence)

SC held that death penalty may be imposed for FM whose acts constituted reckless disregard for human life.

NOTE: Accomplice law provides that a person who intentionally assists in the commission of an offense is guilty of that crime, even if the perp would have committed the offense w/o the accomplice*s assistance.

SC Limitations on death penalty

no execution of murderers who were under 16 yo.

17 and 18 yo executions and mental retardation executions are not cruel and unusual per se, but age/mental ability can be given as a mitigating factor.

Execution of a murderer who has lost his sanity on death row is unconstitutional.

Rape: Unlawful sexual intercourse by means of fear or force without consent.

Mens rea.

Statutory rape is a strict liability crime.

Forcible rape is a general intent crime.

Actus reas:

Elements*(fn 2, p. 365)

Sexual intercourse

Must be penetration. Oral sex, sodomy, etc., are not rape (but are crimes of their own).

NOTE: Sodomy law has no lack of consent requirement.

committed with force

To commit rape, a perpetrator must obtain the victim*s compliance by force or threats. [I.e., if there was no force, but victim was afraid, that*s sufficient. But her fear must be reasonable].

Rusk v. State I: (D pressed woman he met at bar for sex; he scared her, lightly choking/heavy caressing her; she complied; D was charged an conflicted of rape; appeal)

reversed. A subjective fear by victim, unaccompanied by physical force, des not support a rape conviction. Here, there is not sufficient evidence of force or threats.

NOTE: The majority*s view is that the victim must take life-threatening steps in order to preserve the rape charge in a later prosecution.

Dissent: Lack of consent is the issue here, not force. There wasn*t force, but she didn*t consent.

The reasonableness of the woman*s fear is for the jury to determine. State v. Rusk II: (Same facts as above)

HOLDING: the reasonableness of a victim*s apprehension of fear is a question of fact for the jury to determine.

Dissent: *I was really scared* does not constitute evidence of coercion. A woman*s apprehension must be generated by something of substance.

Up until the 1970s, you usually needed evidence of force to prove victim*s lack of consent. This is changing.

Susan Estrich: We need to move away from *boys* rules* and see crying or objecting as resistence.

NOTE: We need to worry about providing adequate protections for the D.

State v. Alston (D and victim were ending a 6 mo abusive relationship. D wants to have sex *one last time*. Victim says no, but doesn*t resist or leave; D convicted of rape; appeals on grounds of lack of force)

If the intercourse is both by force and against victim*s will, it*s rape. But when the victim and the D have a sexual history, victim*s state of mind is problematic. There is no proof here that the victim clearly communicated her lack of consent to the D, who then used force to overcome it.

Use of actual or constructive force to procure victim*s compliance is an element of rape; lack of consent must be clearly communicated [but this is changing]

NOTE: This case would probably be decided differently now, given the attention to abusive relationships.

What if there is no force?

Commonwealth v. Berkowitz: (date rape. D had sex with student; woman claims she was saying *no* throughout; D says it was consensual; D convicted)

Reversed on appeal. The facts show no more than *reluctant submission.* No force and no fear. There is no evidence showing that victim could not have simply left.

Way to understand this: Force is an essential element of rape.

State of New Jersey in the interest of M.T.S. (Victim alleged that D penetrated her while she was asleep after heavy petting; conviction)

Affirmed on appeal; the only force necessary is the force required to do the sex act.

NOTE: Much lower force requirement now. The issue is lack of consent rather than absence of force.

Old law: Marital exception*can*t rape your wife (but this is changing).

with a woman

Having sex with a corpse? United States v. Thomas threw out the impossibility defense.

W/o her consent and against her will

w/o her consent (objective standard: Was consent communicated?)

Old rule: Lack of consent must be clearly communicated to be rape. State v. Alston.

New rule: No need to prove D*s actual knowledge of non-consent.

Commonweath v. Sherry (D and 2 other doctors drove woman home, and although she verbally protested, each had sex with her; she pressed rape charged; Ds wanted instruction that the prosecution had to prove actual knowledge of the lack of consent; Court said no. Convictions; Appeal on the issue of consent)

Affirmed. No need to prove actual knowledge of non-consent.

Fraud/coercion vitiates consent: Boro v. Superior Court  (D pretended to be doctor; to cure victim, he had to have sex with her; D convicted)

Reversed. Ordinarily, fraud vitiates consent. But here, victim consented to have sex; the fraud was to a collateral matter (was the D a doctor?)

Note: Fraud is rape under the MPC is at 213.0-213.5

D not entitled to a jury instruction that victim*s testimony is to be regarded with caution b/c rape accusations are easily made and hard to prove. State v. Bashaw.

against her will (subjective standard: What was she thinking?)

MPC and rape (pp. 1028-1031)

213.0: definitions; 213.1 rape; 213.2: deviate sexual intercourse by force/imposition; 213.4: sexual assault.

MPC is very similar to traditional common law, with forcible and statutory rape, as well as sodomy.

no mens rea in either the MPC or the common law.

MPC*s understanding of rape is very much structured around a force requirement, similar to the common law.

MPC like the common law in practice makes distinctions between stranger rapes and acquaintance rapes.

Is this judgment based upon greater culpability of the defendant, or is it a function of society*s assessment of the victim*s behavior.

MPC does not recognize marital rape.

Procedural restrictions.

213.6: Requires prosecutions to be instituted within 3 months (tight reporting requirement).

213.6(5) requires corroboration and an instruction to jury to handle victim*s testimony with care.

MPC was drafted in the 1960s and seems dated now.

MPC departs from common law in the following ways*

MPC has more finely graded system of kinds of sexual assaults. Creates new sexual offenses less serious than rapes*e.g., gross sexual imposition. Also, 2^nd degree rape is the default, with first degree rape for aggravating rapes. Distinguish rapes by their seriousness.

MPC eliminates non-consent/against will. Why? b/c lack of consent doesn*t allow distinctions between rapes that should be treated differently. MPC drafters made the judgment that non-consent doesn*t tell you enough to distinguish within the grading system. Also, retaining non-consent as an element requires the jury to invite inquiry into what the victim was thinking/feeling, and this is too subjective for the jury to figure out post-hoc about what happened.

Policy

What interest does rape law protect?

Old view: Women*s chastity.

New view: People*s sexual autonomy. The issue is consent. No one should have to have sex w/o their consent.

Non-physical coercion cases: To what extent should rape law protect coercion to have sex that aren*t based upon force?

Estrich: What about extortion?

Berger: Estrich is being too paternalistic.

Fraud. Boro v. Superior Court (phoney doctor case). Yes.

Date rape/*reluctant submission*. Commonwealth v. Berkowitz. Arguable either way. No force and no fear. Is there evidence showing that victim could not have simply left?

Non-consent in the absence of force. State of New Jersey in the interest of M.T.S. (Victim alleged that D penetrated her while she was asleep). Absolutely.

Inchoate [incipient] crimes: conduct that is designed to culminate in the commission of a substantive offense, but has failed in the particular case to do so. 3 major ones: 1) attempt; 2) conspiracy; 3) solicitation.

Attempt crimes

Elements:

The actor must intentionally commit the acts that constitute the actus reas of attempt (e.g., spilling gasoline on girlfriend; putting poison in teacher*s coffee cup)

Intent can be inferred from actions under both MPC and CL.

The D must perform the acts with the intent of committing the substantive crime (e.g., killing girlfriend; killing teacher)

Punishment

Less severe at common law for attempt than for completed crime. Punishment is based upon outcomes. Inherent uncertainty in punishing someone for an uncompleted act.

E.g., D walking around with a stocking over his head, but the store was closed.

MPC: same punishment for attempt as for completed crime.

Merger rule applies so that D cannot be convicted of both attempt and completed offense.

But all jurisdictions treat attempt as a lesser included offense of the completed crime.

Why do we punish attempts?

Retribution argument works best. Why should someone get the benefit of being an incompetent criminal?

Practical reason: to allow law enforcement to intervene in an incipient crime.

CL: Specific intent is required. No such thing as attempted recklessness.

People v. Gentry (D spilled gasoline on girlfriend in an argument; gas ignited from kitchen stove; D smothered flames; g/f lived; D charged with attempted murder; D objected to jury instructions that attempted murder can occur when D*s conduct creates a strong probability of death/great bodily harm, arguing instead that attempted murder requires a showing of specific intent to kill; D convicted; appeal on the issue of specific intent)

Reversed. Intent to do great bodily harm is not enough for charge of attempted murder. Recklessness is not enough.

Bruce v. State (cb p. 708)

Can*t have attempted involuntary manslaughter or attempted felony-murder. By definition, D did NOT set out to kill anyone. Can*t say D was preparing to do something unintentional.

MPC and attempt. 5.01

2 levels to the MPC mens rea

In the first clause of 5.01, D must act with the culpability required for the underlying crime; AND

D must purposely or knowingly do something that would cause the prohibited act; Alternative sections a, b, or c: each of them involves some purposeful conduct;

NOTE: This makes it more difficult to prove intent for attempt than for the underlying crime.

Quirk in the MPC: If you had a statutory rape statue in which the basic conduct being punished is intercourse with the attendant [accompanying] circumstances of someone under age of consent, if there is not knowledge/purpose requirement, the MPC would allow for conviction even in the absence of knowledge.

MPC attempt crimes require

conduct * shown by purpose

result * shown by purpose or knowledge

attendant [accompanying] circumstances * shown by underlying crime.

Actus reas for attempt: Preparation vs. attempt

Common Law: need an *overt act*

Abundance of tests to figure out when preparation becomes attempt (fn 5, pp. 713-14):

Physical proximity; dangerous proximity; indispensable element; probable desistance; abnormal step; res ipsa loquitur/unequivocality test.

Don*t need to know these. The point is that there is a trade-off between certainty of the D*s culpability and the risk of social harm/prevention of crime.

MPC 5.01(1)(c) and 5.01(2): Uses the *substantial step* test

State v. Reeves: (12 yo*s decide to kill their teacher by putting poison in her coffee; they are caught as they are about to do it, and charged with attempted murder)

Conviction affirmed. Attempt requires an *overt act* (or if Tennessee had adopted the MPC, a *substantial step*), and conduct itself (bringing poison to school) can constitute an overt act toward the commission of the offense.

Dressler: NOTE: Legislators are increasingly punishing pre-attempt conduct. E.g., stalking; harassment.

E.g., United States v. Alkhabaz (D has violent web postings about fellow student; he was charged with a communication containing a threat; indictment quashed; govt appealed)

Quashing affirmed. The law he was charged with has no actus reas. The communication was not directed towards the female student, therefore he couldn*t have been threatening here.

Special Defenses to Attempt

Impossibility (NOTE: This is a matter only for the CL; MPC does not focus on factual v. legal impossibility)

Summary to impossibility doctrine:

factual.: when the objective of D is proscribed by the criminal law, but a circumstance unknown to the D prevents him from bringing about the objective. [factual v. legal distinction is problematic; e.g., possessing talcum powder thinking it*s cocaine; it could be argued either way]

E.g., Homer Simpson makes a bomb out of elbow macaroni. Can he be prosecuted for an offense?

Yes under the MPC test. He has the bad intent, and has taken a substantial step.

Yes under CL. he can be charged.

legal: If the intended act is not criminal, it cannot be a crime to attempt it. [factual vs. legal distinction is problematic; e.g., possessing talcum powder thinking it*s cocaine; it could be argued either way]

United States v. Thomas (marines have sex with a corpse that they think is a passed out girl; charged with attempted rape; but rape requires a living woman)

MPC: Conviction affirmed.

Would NOT be affirmed under CL. Rape requires a live victim.

pure (can*t make up the law against yourself; true in MPC)

I think it*s illegal to make a right turn on red (it*s not) and I begin to make one. Can I be convicted of an attempt crime? The desired result must constitute a crime, notwithstanding the fact that the D firmly believes his goal is criminal.

MPC: This is a defense.

CL: This is a defense.

inherent impossibility:

E.g., I put a curse on you.

CL: left to prosecutor*s discretion.

MPC: 5.05(2): Left to judge*s discretion.

Abandonment

Not a defense in CL. Courts manipulate the line between preparation and attempt instead.

MPC 5.01(4): Renunciation of criminal purpose. MPC does have an abandonment defense, but renunciation in the face of getting caught won*t save you.

State v. McCloskey (D attempts to break out of prison, but then abandons; court convicts of attempted escape)

Overturned: D was in a position to abandon his effort. [NOTE: Not a defense in CL].

Assault [note: no such crime as *attempted assault*]

CL understanding of it is attempted battery, plus placing someone in fear of immediate injury.

Note: variations in general attempt law w/r/t assault

Assault doesn*t merge with battery. You are charged with assault AND battery.

Law of impossibility doesn*t apply to assault b/c assault is defined as the attempt to commit battery PLUS present ability.

MPC 211.1 incorporates assault and battery into one provision*

Simple assault. A person is guilty of assault if he

Attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another; OR

negligently causes bodily injury to another with a deadly weaon; OR

attempts by physical menace to put another in fear of imminent serious bodily injury.

Simple assault is a misdemeanor unless committed in a fight/scuffle entered into by mutual consent, in which case it is a petty misdemeanor.

Aggravated assault. A person is guilty of aggravated assault if he

attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to human life.

attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.

Aggravated assault under #1 above is a felony of the 2^nd degree; under #2 above, it*s of the 3^rd degree.

State v. Boutin (D was involved in a scuffle; he picked up a bottle and advanced toward co-fighter; police arrived, told him to put bottle down; D was 10' away. Never threw bottle. D convicted of simple assault; appealed)

Reversed: A person is guilty of simple assault if he attempts to cause or purposely/knowingly or recklessly causes bodily injury to another (MPC 211.1 definition)

Never was it likely that D could consummate the crime; therefore could not be attempted assault.

Solicitation: [only comes up in the context of prostitution]

CL: The asking, enticing, inducing, or counseling of another to commit a crime. Defined in State v. Mann.

MPC: 5.02(1)

Solicitation merges into the crime solicited if the latter offense is committed or attempted by the solicited party.

State v. Cotton: (D child molester wrote letters to wife asking her to remove child who would testify against him from jurisdiction; letters were never mailed; charged with solicitation; D*s defense was that his wife never received the letters; convicted. Appeal)

Reversed. An uncommunicated solicitation is NOT a solicitation in CL.

An uncommunicated solicitation is a solicitation in the MPC at 5.02(2)

NOTE: perhaps it would have been more effective to have charged D with attempted solicitation.

Conspiracy: defined in People v. Carter as a *partnership in criminal purpose,* a mutual agreement or understanding, express or implied, between two or more people to commit a criminal act or to accomplish a legal act by unlawful means.

CL elements

*dual* Mens rea:

Intent to agree [NOTE: Can*t conspire to commit unintentional crimes]

People v Swain (D was passenger in car during drive-by shooting; he admitted to firing shots, but claimed they were in self-defense; found not guilty of murder, but guilty of conspiracy, with the target offense of 2^nd degree murder; D appealed)

Reversed. A conviction of conspiracy to commit murder requires a finding of an intent to kill, and cannot be based on a theory of implied malice.

Conspiracy is an inchoate crime that is fixed as of the time of agreement to commit the crime, and commission of the crime could never be established or deemed complete unless or until a killing actually occurred.

Intent to commit the target crime.

Is knowledge intent, as opposed to purpose to commit the target crime? People v. Lauria (D runs answering service for prostitutes; charged with conspiracy)

Indictment dismissed. Furnishers of goods to conspirators does not make you part of the conspiracy if the crime is a misdemeanor, unless you have a stake in the outcome.

NOTE: MPC requires purpose, not just knowledge; therefore he would be convicted under CL, but not the MPC.

Supremes go in two directions

US v. Falcone: sellers of ingredients to make moonshine were not conspirators.

Direct Sales v. US: Wholesale drug company selling 3x normal amount of drugs to physicians who were selling them to addicts. Drug company was a conspirator.

Factors to determine when knowledge is intent (p. 785)

When the supplier had a stake in the venture

When there is no honest use for the goods

Quantity of business

Aggravated nature of the crime.

Knowledge of attendant [accompanying] circumstances? same as knowledge of the goal of the conspiracy. Whatever mens rea is OK for the target crime is OK for the conspiracy as well.

United States v. Feola (D and others arranged to sell heroin to buyers who were in fact undercover police; D tried to swindle buyers by substituting sugar for heroine. When one of the agents became suspicious, he drew his revolver, preventing assault on another agent; D was charged with conspiring to assault and with assaulting officers. Convicted. Appeal on the issue of whether Ds had to know the buyers were actually police)

Conviction affirmed. Knowledge of attendant circumstances is NOT a requisite.

NOTE: the Powell doctrine or the *corrupt motive* doctrine holds that you cannot be convicted of conspiracy unless you have bad intent*e.g., can*t conspire to break the law if you don*t know the law exists and you know you are doing something wrong. But this is distinguishable from Feola b/c in Feola, they DID have bad intent.

Actus reas

Agreement to commit a crime/bad act.

Commonwealth v. Azim (Driver claimed that assault and robberies by passengers didn*t make him a conspirator)

Convicted: Once a conspiracy is established and upheld, a member of the conspiracy is guilty of the acts of the co-conspirators.

Commonwealth v. Cook (conspiracy to commit rape; 2 Brothers walking with a girl who tripped; one brother raped her; 2^nd brother did nothing; 2^nd brother convicted of conspiracy to commit rape)

Reversed. two people seeking by some concerted action to commit a crime can be punished for conspiracy. It was necessary to prove unlawful agreement for conspiracy and that D was aware of the unlawful object of the conspiracy. That wasn*t the case here.

Some states require an overt act, but this can be almost anything.

Consequences of conspiracy charge.

No merger doctrine under CL: conspiracy doesn*t merge with the target crime.

NOTE: Under MPC 1.07(1)(b), there is a merger doctrine. Major difference.

Vicarious liability for all co-conspirators. This is called the Pinkerton doctrine from Pinkerton v. United States in which the co-conspirator was in jail when the crime was committed. Didn*t know about it, yet was responsible for it.

Rationale: as long as there is continuous conspiracy and neither party withdraws, any act carries the criminal purpose forward.

The test for abandonment of conspiracy is communication of this fact to fellow co-conspirators.

Exception to the hearsay rule for co-conspirators. Krumewitch v. United States.

venue consequences: can be tried anywhere one of the co-conspirators did one of the acts.

liberal joinder rules: The govt gets to try co-conspirators together, even though the conspiracy is what the government is trying to prove!

MPC: see 5.03. overall, it*s quite similar to the CL. [see review notes for 4/3 if there is a question on the MPC and conspiracy]. Minor differences between MPC and CL*

Target must be a crime; disagrees with CL that the target of the conspiracy can be an immoral act.

It*s a conspiracy to help someone else comment a crime when you yourself don*t intend to do so. This is broader than the common law, which requires you to be part of the conspiracy.

Mere knowledge is not enough; you must have purpose. This requirement means that you have to intend the target crime be committed.

i.e., under MPC, Lauria is not a crime.

Under CL, Lauria is a crime.

MAJOR DIFFERENCE w/ the CL: Merger doctrine applies under the MPC (see 1.07(1)(b)). You can be charged with conspiracy or bank robbery, but not both, b/c conspiracy will merge. Under CL you could be charged with both.

Policy question: Is conspiracy law too broad, too sweeping? Absolutely yes.

Special problems w/r/t conspiracy

Can you conspire to commit non-intention crimes? No.

It seems like a thought crime.

The act in *act required* states need be no more than a statement of intentions.

Civil liberties problems/1st amendment protections/right to organize for unpopular positions.

Conspiracy law has been used to prosecute people who support unpopular causes.

Can a jury infer intent from knowledge of the crime when there is adequate evidence?

Lauria (answering service for prostitutes). See above.

What intent is necessary w/r/t the attendant [accompanying] circumstances of the target crime?

Feola. See above. What ever mens rea that is OK for the target crime is OK for conspiracy as well. No knowledge of attendant [accompanying] circumstances necessary.

General issues w/r/t/ all inchoate crimes

At what point can you prove adequately that the person was going to go on and commit the crime? Or should you not prosecute until the person has committed the crime.

Merger doctrine with the underlying crime...

Complicity

Accomplice liability: Not a crime, but rather, a set of rules for holding people responsible for subsequent crimes. Different from inchoate crimes that are independent (somewhat) of the target crime). Accomplice liability is simply a way of finding people responsible for the object crime itself.

Elements:

*dual intent* mens rea:

Intent to aid the primary party AND

intent that such assistance results in the commission of the crime.

NOTE: It*s possible that with a good prosecutor, knowledge could become intent. E.g., Lauria

NOTE: Foster. You can convict on negligence. Better to say that rather than necessary intent, D must simply have the mental state necessary for the crime. Accomplice liability is not necessarily a specific intent crime.

Actus reas

A person is a party to an offense if he either

Actually commits the offense;

does some act which forms a part of the offense

if he assists in the actual commission of the offense or any part of it.

directly/indirectly counsels or procures any person to commit the offense or any party of it.

Can be solicitation of the offense, active assistance, encouragement, failure to prevent if the person has a legal duty to make such an effort.

NOTE: Under the CL, attempts to help that are ineffective and don*t result in help do not satisfy the actus reas.

But the actual assistance can be very slight. E.g., Wilcox v Jeffrey (Coleman Hawkins case with jazz reviewer).

Silence/omission/failure to stop a crime is not actus reas unless there is a legal duty.

But note: sometimes unspoken presence can be assistance/encouragement.

Principle (1^st and 2^nd degree) and accessory (before/after the fact) distinctions:

Old common law divided people into principals and accessories.

Principals*

1^st degree principals (the person who actually commits the crime physically themselves) and

2^nd degree principals (someone who doesn*t physically commit the actus reas, but they are there, helping to commit the crime. They are aiding and have bad intent).

Accessories*

accessory before the fact (someone not there at the crime, but helping in its commission beforehand) and

accessory after the fact (someone also not there but finds out about the crime afterwards and harbors you, makes sure that you are not caught).

In contemporary US law, these precise definitions are no longer given much weight, except in Maryland.

Accomplices nowadays are either 2^nd degree principles or accessories before the fact.

The old category of Accessories after the fact are now treated as committing some other lesser crime*e.g., harboring a fugitive.

Principal/accomplice distinction.

In modern law, accomplice liability is derivative.

You must establish that someone had bad intent and actually committed the crime.

If there*s a problem in finding the principal, there will be a problem in prosecuting the accomplice. Accomplice liability is derivative.

State v. Hoselton. (Friends broke into barge. D stood on top, not participating; couldn*t see what friends were doing (stealing tools). D was not given any of the loot. When asked by police if he was the lookout, D replied *you could say that*. D was tried and convicted as an accomplice)

Reversed. To convict, you must prove that accomplice shared the same criminal intent as the principal in the 1^st degree. No evidence that D knew what his friends were going to do. To be an accomplice, D must have had the purpose of promoting and facilitating the crime, and have done something.

MPC 2.06 on complicity. (p. 994)

A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.

A person is legally accountable for the conduct of another person when

acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; OR

he is made accountable for the conduct of such other person by the Code or by the law defining the offense OR

he is an accomplice of such other person in the commission of the offense.

A person is an accomplice of another person in the commission of an offense if

with the purpose of promoting or facilitating the commission of the offence, he

solicits such other person to commit it, OR

aids or agrees or attempts to aid such other person in planning or committing it; OR

having a legal duty to prevent the commission of the offense, fails to make proper effort to do so, OR

his conduct is expressly declared by law to establish his complicity.

NOTE: Under the MPC, attempting to aid ineffectively is a crime.

NOTE: Under the MPC, natural and probable consequences doctrine doesn*t apply.

NOTE: Under the MPC, ineffective assistance counts as assistance.

People v. Lauria (answering service operator for prostitutes in which D knew one of his customers was a prostitute)

What if he had been charged as an accomplice rather than as a co-conspirator?

Under the MPC, Lauria would NOT have been convicted b/c he lacked the purpose to promote/facilitate the commission of the offense.

State v. Foster (D*s girlfriend was raped; D and friend went out to look for attacker. Found alleged attacker; D told friend to detain him with a knife while D got g/f; alleged attacker wound up stabbed b/c attacker charged D*s friend; D convicted of being an accessory to criminally negligent homicide; appeals)

Affirmed. You can be an accessory to a criminally negligent act if you have the requisite culpable mental state and intentionally aid in the commission of the crime.

No need for specific intent. All that is needed is negligence (giving the knife to friend).

State v. Linscott (D with a group of people with plan to rob a cocaine dealer. One of the group wound up killing the dealer; D only broke the window; D claimed no knowledge of any reputation for violence people in the group had; jury found D guilty of murder on a theory of accomplice liability; convicted

Affirmed on the *foreseeable consequences* rule/ *natural and probable consequences* doctrine: An accessory is liable for any criminal act that was the natural or probable consequence of the crime that he advised or commanded, although such consequence may not have been intended by him. Requires some element of foreseeability.

This case represents the majority treatment under common law.

State v. Villancourt (D watched friend break into house, but did not do so himself)

Conviction reversed.

Mere knowledge and presence do not constitute accomplice liability.

But note: Had the D done anything, however slight, he could have been found guilty on a theory of accomplice liability, and dissent wants to argue that mere presence is enough to provide help and encouragement.

NOTE: Bailey v. United States holds that presence designed to encourage the perpetrator is equated to aiding and abetting

Is a failure to stop the crime aiding and abetting? See MPC 2.06(3)(a)(iii): only when you have a legal duty to do so (i.e., you are a police officer)

Wilcox v. Jeffrey (Coleman Hawkins came to UK and played at an illegal jazz concert; D reviewed the concert favorably in a newspaper; D was convicted of aiding and abetting)

Conviction upheld b/c D gave encouragement to an illegal act.

This is an example of *peripheral* assistance. No *but-for* causation is needed in accomplice liability. (this point is raised also in State v. Helmenstein)

People v. Genoa (undercover police came to D wanting him to finance purchase of cocaine, upon which he would get a good return; D was charged with attempted possession with intent to deliver cocaine)

Dismissed. The only theory by which D could be prosecuted was that he attempted to aid and abet the crime of possession with intent to deliver cocaine, but this crime was never actually accomplished or committed by anyone. Ergo, it was legally impossible for D to have committed any offense.

Special problems/issues in accomplice liability

Innocent instrumentality theory/doctrine of innocent agency (this comes from CL, but it*s in the MPC 2.06(2)(a).

Bailey v. Commonwealth (D and victim had long fight over radio. D tells victim he is coming to kill him. D then sends police there on a false report. Police kill victim accidentally. D convicted of involuntary manslaughter; D appeals)

Affirmed. D orchestrated the whole thing.

Innocent instrumentality theory/Doctrine of innocent agency: *One who effects a criminal act through an innocent or unwitting agent is a principal in the first degree*.

NOTE: Problem in this case is that we could argue the police were acting independently.

State v. Hayes (D was set up by friend when D proposed that they rob bacon from a store that friend*s relative owned; D did not in fact enter the store, only raising a window to enter. But friend never had any felonious intent; D was convicted)

Reversed. If co-conspirator lacked felonious intent, it cannot then be transferred to D.

Other courts have allowed entrapment.

Innocent agency theory doesn*t work b/c friend knows what is going on. He*s not an innocent agent like the police were in Bailey.

No accomplice liability if principal is justified (rather than excused). (Same in MPC and CL)

United States v. Lopez (D helped girlfriend escape from prison, after prison authorities threatened her life)

If girlfriend*s escape was justified, there is no accomplice liability stemming from D*s assistance.

NOTE: This only applies to justification defenses, not excuse defenses.

Justification: though the act was committed, it*s not wrongful.

Excuse: the act was wrongful, but the actor will not be held accountable.

Can*t be convicted of a crime greater than the one the perpetrator committed

Regina v. Richards (D hires someone to beat up her husband badly, so that he will need her; instead her husband is only slightly injured; attackers were convicted of misdemeanor, while D was convicted of a felony of unlawfully wounding another with intent to inflict bodily harm. Appeal)

Reversed. An accomplice cannot be held to a higher crime than the one actually committed.

W/r/t MPC, see 2.06(7): An accomplice can be convicted even though the principal has been found not guilty. This allows undercover operatives.

Withdrawal*

People v. Brown (3 men decide to steal a car; After door was kicked in but before car was stolen, D decides to end his participation in the crime and leave. As they were leaving, police arrived; convicted)

Reversed. A person may not be held legally accountable for the actions of another if before the commission of an offense, he terminates his efforts to promote/facilitate and makes a proper effort to prevent commission of the offense

MPC 2.06(6)(c) is on withdrawal. Fairly broad language. Requires the D to do more to withdraw. Must do something affirmative.

In common law cases, there is a split.

some say it*s enough simply to announce to confederates that you no longer want to participate.

others say that the D must do something affirmative. E.g., take away assistance that was offered. Call the police.

Statutory rape-

In Re Meagan R. (D is minor being prosecuted as an accomplice in her own statutory rape)

acquitted. She is among the class of people statutory rape law is designed to protect, not to prosecute her.

Summary w/r/t accomplice liability

If the primary party*the person who is the first degree principal*lacks the mens rea, there is no crime, and hence there is no accomplice liability. This is State v. Hayes.

If the primary party acted in a way that is considered legally justified, the rule is that the accomplice cannot be convicted. State v. Lopez. (Prison break-out case.) If there is no crime, there cannot be any accomplice liability. If the primary actor was justified in doing what she did, you cannot get any accomplice liability either.

Corollary of this: if the primary party acted in a way that was excused rather than justified, there still could be accomplice liability. Difference between justification and excuse. Justification defense *> no accomplice liability; Excuse defense *> accomplice liability.

Finally, if the principal commits a lesser crime than the accomplice had hoped, the accomplice cannot be convicted of a greater crime than the one actually committed. This is Ragina v. Richards. You cannot be committed of a greater crime than the one that is actually committed.

NOTE: This is the rule that is most disputed. It*s not really clear whether there is a common law consensus on this.

NOTE: W/r/t MPC, see 2.06(7).

Withdrawal from being an accomplice? See People v. Brown (3 men decide to steal a car; After door was kicked in but before car was stolen, D decides to end his participation in the crime and leave. As they were leaving, police arrived; convicted)

Reversed. A person may not be held legally accountable for the actions of another if before the commission of an offense, he terminates his efforts to promote/facilitate and makes a proper effort to prevent commission of the offense

Statutory rape: In re Meagan R. Victims of statutory rape are not prosecuted as accomplices.

Vicarious liability: Imposing liability for the acts of others. E.g., Respondeat superior

Commonwealth v. Koczwara (tavern employee violated state liquor code serving minors; tavern owner was charged and sentenced to fine and 3 mo. imprisonment)

Affirmed, but Imprisonment sentence reversed. Courts may impose vicarious liability for the acts of others, but not imprisonment. Personal responsibility and voluntary assumption of the risk.

Dissent: vicarious liability is at odds with basic notion of criminal law.

MPC: 2.06 makes vicarious liability possible.

Corporate responsibility. (see review notes for 4/12 if there is a question on this)

Policy issues.

Meta-physical questions: Corporations are not individuals, do not have moral agency, and should not be treated as a moral actor. No subjective mens rea test outside of employees.

Counter argument: Must structure incentives to deter corporate lawbreaking/encourage law compliance.

Counter-counter argument: Corporations can simply pass on fines to consumers.

Pragmatic questions.

How do you *arrest* a corporation.

State v. Christy Pontiac-GMC, Inc. (fraud regarding rebate offers; corporation and individuals convicted)

Affirmed. A corporation may be held liable for specific intent crimes like theft and forgery.

MPC 2.07(1) provides that a corporation may be convicted of an offense if the conduct is performed by an agent of the corporation acting on behalf of the corporation within his scope of employment. The act need not actually benefit the corporation to impart liability.

Defenses*

All justification defenses have the same internal structure*

triggering conditions that permit a 1) necessary and 2) proportional [i.e., there is a maximum] response.

Necessary and proportional are judged by a reasonable person standard.

Defensive force. It*s a justification rather than an excuse.

Elements for self-defense claim

triggering condition: There must be an 1) unlawful 2) immediate and 3) deadly force against you.

Necessity: deadly force is necessary to prevent this threat from becoming a reality

there is an imminence requirement. Becomes important for battered women defense.

Proportionality: The force D uses is in proportion to the threat faced

Subjective element: D must believe all above to be true.

Objective element: a reasonable person must believe all above to be true.

NOTE: According to Peterson

Aggressors have no right to self-defense. You can*t provoke a conflict. (this is CL; MPC says that you have a right to self-defense if the other person escalates, even if you were the aggressor)

If you withdraw from the conflict and clearly express this, you regain your right to self-defense.

United States v. Peterson (victim stealing windshield wipers. D shouted, went to get gun, and returned. Victim advanced upon D with lug wrench. D shot him. D was convicted)

Affirmed. Self defense is not an excuse for homicide if the person claiming it created the situation necessitating it.

NOTE: This case raises some useful CL concepts

Aggressor: someone who initiates attack (includes deadly and non-deadly intent)

Under CL, you must be *free from fault* in invoke self-defense justification.

To get self-defense privilege back, you must withdraw from conflict and clearly communicate your withdrawal (makes you no longer the aggressor).

defense of property is never a justification for deadly force,

except that a small number of states have changed this by statute for defense of a home.

Duty to retreat

Majority rule: no duty to retreat Harris: This rule has to do with US conceptions of honor.

Minority rule: duty to retreat, provided an escape path is clear, except for *castle doctrine.*

Castle doctrine: you don*t have to retreat if you are being attacked in your home.

Self-defense privilege at CL is both objective (reasonable person) and subjective (What did D think?)

But it*s qualified. Immediately after announcing that the standard is objective, but in deciding whether the D*s actions were reasonable, we can consider the D. The objective test is still qualified by the jury*s ability to take into account the internal circumstances of the defendant.

Problem: is it part of the reasonable person standard to regard black men as threatening? Is the reasonable person a model person or an average person?

What if you believed force was necessary, but your belief was unreasonable? Mitigation. You don*t get self-defense b/c you must be without fault to get it. So you probably get the charge reduced from murder to manslaughter. This what what is suggested in the notes after State v. Wanrow.

MPC on defense force*3.04. Basically, same as CL except for a few twists

Use of deadly force is not justified unless there is serious bodily harm or rape

MPC definition of aggressor is a little different/looser. Aggressors must have intent for death or great bodily harm To get self-defense privilege, MPC gives you a right of self defense (even if you are an aggressor) as long as you did not intend deadly force/great bodily harm.

includes a duty to retreat (3.04(2)(b)(ii)) similar to the minority CL rule, with a castle doctrine (3.04(2)(b)(ii)(A)) and a workplace *no-retreat-necessary* rule.

Self-defense privilege at MPC is only subjective. It*s self defense as long as the person reasonably believed force was necessary. This was the issue in the Goetz case (killing panhandlers on subway).

But MPC 3.04 is qualified by MPC 3.09. On the surface, it*s a subjective test. But it*s qualified by 3.09, which provides that although the actor*s sincere believe of self-defense is necessary for a crime of purpose or knowledge, it*s not a defense for recklessness or negligence crime. Goetz could still have been charged with reckless murder or negligent homicide. Section 3.09 adds an objective element.

State v. Wanrow (D kills man she suspected of molesting her children when he surprised her by being directly behind her)

When self-defense issues are raised, D*s actions are to be judged against her own subjective impressions. The vital question is the reasonableness of D*s apprehension of danger, NOT the danger a detached jury would find.

In jurisdictions where the fear was honest but not objectively reasonable, murder charges get reduced to manslaughter charges.

NOTES after case: To what extent is there a *reasonable woman* standard? Still an objective standard, but not so subjective as an individual perception.

Battered Woman defense/self-defense in the context of gender

3 types of cases:

traditional, confrontation cases (wife kills husband)

traditional self-defense doctrine is sufficient for these cases.

non-traditional sleeping victim cases (State v. Norman)

Battered Women*s syndrome as a defense.

hit-man/contract killer cases.

No defense.

State v. Norman (battered wife shot husband as he slept; D tried to introduce evidence of battered women*s syndrome and was rejected at the trial court. Trial court convicted of manslaughter; Appellate court reversed; Supreme court re-imposed sentence; Governor commuted.)

Battered spouse defense (at the appellate level) was an exception to the imminence requirement that self-defense be a response to an immediate peril.

Acceptance/rejection of the battered spouse defense has rested on political views rather than legal analysis.

Lots of policy issues: When should such killings be justified? When has a battering husband lost his right to life? Does a battered wife justification extent to a hit-man? (if you think of it as an excuse, clearly not)

Imminence requirement is the hang-up here.

Battered women*s syndrome: *Paralyzed by fear*

Supremes hold the threat was not imminent.

Counter-argument: but the state has failed to protect her.

Battered Women*s Syndrome

Stephen Morse:

We shouldn*t expand the reasonable person test to a reasonably battered person.

If the syndrome suffering D has a defense, it is an excuse, not a justification.

Problem: Battered Women*s syndrome pathologizes women*s behavior, but not men*s.

It*s an example of *social framework* evidence and is contrary to everything else in criminal law re individual responsibility/culpability.

defense of others

Commonwealth v. Martin (prison fight; guard was stabbed; D charged with assault w/ intent to kill; D*s defense was that he struck the guard only to defend a fellow prisoner whom the guards were beating; convicted; appealed)

Reversed. A person is justified in using reasonable force in the defense of others to the extent that he reasonably believes such force is necessary to prevent the unlawful use of force against himself and others.

Determining reasonableness: take into account surrounding circumstances.

Basic rules of self-defense are applicable.

Martin is the majority rule

Minority (and older) Alter ego rule: the right of someone else to defend another is not greater than the right to defend oneself

E.g., undercover officers are arresting someone. I intervene to help stop the *attack*

Under Martin, I have a defense b/c I was mistaken.

Under alter-ego rule, I do not have a defense, because I have no greater right to self-defense than the person being arrested (which is none, b/c he*s being arrested by the police)

Exceptions to the *aid of others* doctrine

can*t intervene in a parent disciplining a child absent *greatly excessive force.*

MPC 3.05 (a)(b)and(c)

Note 3.05 folds into 3.04 (self-defense) and 3.09 (recklessness or negligence in coming to the aid of others*if you are reckless/negligent in coming to the aid of others, you are liable)

Defense of property

Can*t used deadly force unless it*s your home (or workplace under the MPC)

You can use non-deadly force, however, to protect your property but only if

you are intervening as it*s being stolen OR

you are in hot pursuit, subject to the usual rules re proportionality.

Can*t use spring guns to protect property.

People v. Ceballos (D used a spring gun to prevent theft; a victim was shot in the face)

Holding: D cannot do the permitted self-defense had he been present when he was not present, b/c there is no reasonable expectation of great bodily harm when D is not present at home.

Policy: we don*t want to encourage use of spring guns.

NOTE: Louisiana allows you to shoot your car-jacker.

MPC: No defense of habitation as such, but there is the *castle doctrine* and MPC 3.06. Complicated.

MPC is trying to spell out in detail when force is necessary/unnecessary

MPC 3.06 has specific rules for when spring guns are OK. 2 requirements to when you can use a spring gun:

only if they don*t present risk of death or substantial injury.

only if there is a warning sign.

defenses of law enforcement.

Tennessee v. Garner (special duties of law enforcement when chasing criminals).

Police may not use deadly force to apprehend a fleeing unarmed suspect, unless the officer has probable cause to suspect that the suspect poses a significant or serious physical injury to the officer or to others.

RULE from Garner: The use of deadly force is a violation of the 4^th amendment unless...

The officer has a probable cause to believe that the victim poses a significant threat of death or serious bodily injury to the officers and to others. The standard is a *reasonable police officer*

The police officer must warn: *stop or I*ll shoot*

The force used must be necessary to prevent the person from fleeing.

This rule applies to someone who is running away; Balancing the state*s interest against the individual*s interest in not being killed.

Note: Tenessee v. Garner is the law in all states b/c it*s a SC case.

Note: that the 4^th amendment limitation applies only to the police. An individual can use deadly force in situations that the police may not.

Necessity (*choice of evils*)

CL Elements to necessity from Commonwealth v. Leno

balance of harms/belief you have no alternative.

Belief must be objectively reasonable (using an objective judgment under both CL and MPC; hard to do with intangible factors)

direct causal relationship between necessity and crime.

imminent danger [not present in the MPC]

no legal alternative

legislature has not precluded the necessity defense.

[implied] you are not responsible for the need for the necessity.

MPC 3.02 elements to necessity

balance of harms

no specific defense provision on point (i.e., no self-defense provision)

no legislative intent to preclude

Subsection 2 modifies these elements which applies to situations where person was reckless/negligent. The person remains liable for the crime.

Commonwealth v. Leno (hypo distribution necessitated by AIDS)

convicted; fails #2 and #3 above.

In re James Warner Eichorn (homelessness case; must violate sleeping ban b/c of necessity; trial court rules no significant and imminent harm, therefore no necessity; appeal)

Overturned. D should have gotten jury instruction on necessity.

Most cases of necessity have to do with very personal problems*e.g., breaking into a cabin during a snowstorm.

MPC 3.02 *choice of evils*

Sub-section A: Balancing harms: You are breaking the law, but it*s for a greater social good.

Commentary to MPC 3.02

It*s OK by the principle of necessity to do what would otherwise be forbidden*e.g.,

destroy property to prevent spread of fire

violate speed limit to pursue criminal.

Limitations*

actor must actually believe his conduct is necessary to avoid an evil.

the necessity must arise from an attempt by the actor to avoid an evil or harm that is greater than the evil or harm sought to be avoided by the law defining the offense charged. An equal or lesser harm will not suffice.

balancing of evils is an issue for determination at trial

can*t overrule the legislature, if the legislature has spoken.

can*t bring about the requirement of necessity through your own recklessness or negligence.

Necessity cannot be raised as a defense to indirect civil disobedience. United States v. Schoon.

Can necessity ever be a defense against murder?

CL: No. The Queen v. Dudley and Stephens (lifeboat case where they ate one of the survivors to survive)

Ds convicted of murder

MPC: Yes. MPC allows balancing. You can kill 1 to save 5.

But does the MPC really mean this? Hypo regarding killing someone perfectly healthy to harvest his organs and thereby save 5 dying people.

NOTE: Trial judges are hostile to the necessity defense b/c it undermines criminal law more generally.

Duress

Elements:

an immediate threat of death or serious bodily harm.

a well-grounded fear that the threat will be carried out.

no opportunity for reasonable escape.

MPC 2.09 differences with CL

MPC is a little broader than the CL in allowing a duress defense when there is unlawful force; CL by contrast limits duress to threat of death or great bodily harm.

MPC envisages duress to be coercion by a threat that a *person of reasonable firmness* could not resist.

3 Distinctions between necessity and duress.

In necessity, there is a requirement for objective benefit to society; in duress, no necessary overall benefit.

In necessity, larger/natural/social forces are sources of coercion; in duress, someone (i.e., an individual) is causing the situation where you have to make a decision.

In necessity, the D is making a choice; in duress, the D lacks free will.

Prison escape cases fit better into necessity than duress. People v. Unger (D escaped from prison to avoid homosexual assault).

BOTTOM LINE: Duress and necessity are better thought of a continuum

MPC allows D to ask for both duress instruction or necessity instruction

CL: the defenses are mutually exclusive.

Limitations

If it*s D*s fault that he is in this situation, he loses the defense of duress.

Intoxication

Voluntary vs. involuntary intoxication.

Time frame issue makes a big difference as to whether someone is voluntary/involuntary intoxicated.

Voluntary intoxication.

evidence of voluntary intoxication can negate the mens rea of specific intent crimes, but not general intent crimes.

States are reducing the availability of this defense.

Commonwealth v. Graves (Voluntary intoxication may be a defense to crimes other than pre-meditated murder)

Involuntary intoxication

4 situations

Coerced

Pathological intoxication (extreme and unexpected reaction)

Innocent mistake

unexpected intoxication from a medical prescription.

Can negate the mens rea of either a general or a specific intent crime.

Treated as a blanket affirmative defense in CA. Treated as temporary insanity in most jurisdictions.

City of Minneapolis v. Altimus (Involuntary intoxication rendering the D temporarily insane is a defense to violations of the criminal code)

MPC on intoxication is 2.08

General principle: intoxication is a defense only when it negates a general element of the crime. I.e., too intoxicated to form the mens rea.

BUT this is qualified. When recklessness is an element, s/he cannot argue (if it was voluntary) that she was unaware of the risk b/c she was drunk. The reasonable person is the reasonable sober person, not the reasonable drunk person.

Result is equivalent to the common law distinction between general and specific intent.

Infancy. Don*t worry about it, but the rules are stated in In re Devon T.

Children don*t have the capacity to distinguish right and wrong below 6; 7-14 is a sliding scale to competence; at 14 they have it.

Insanity.

McNaughton test (set out in State v. Johnson, pp. 597-600):

D is insane (and not liable) if

Does not understand nature/quality of acts; OR

Does not understand wrongfulness of acts.

NOTE: Prong #1 is hard to meet. Most analysis rests on Prong #2.

Critiques of McNaughton test

Too all or nothing.

too focused on a purely cognitive test. So some courts have added an *irresistible impulse* test. Is there compulsion? Can they stop themselves?

Insanity (state of mind at the time of commission of the crime) is different from competency (state of mind at the time of trial)

MPC test 4.01

Lack of substantial capacity to know that your acts are wrong.

4 different standards (pp. 598-600)

McNaughton test (see above). CL is mostly here.

*Irresistible impulse* test

Durham Product test.

MPC 4.01

Lack of substantial capacity to know that your acts are wrong.