January 12, 2010 TOPIC: DEFINING CRIMINAL LAW; PROOF BEYOND A REASONABLE DOUBT Regina v.

Dudley and Stephens - Summary: A group of guys went sailing. They got caught in a storm and pushed out to sea. After days without food, two of the men decided to eat the cabin boy. o Commissioned to sail a ship to Sydney with four other men o They are shipwrecked; youngest boy comes ill; Dudley and companions kill him to survive o Common custom: drawing straws to decide who should die in order for others to live Boy never consented he refused the practice numerous times o Substandard wood; Dudley made a decision to take an unusual route - Rule of Law: Extreme hunger does not justify murder and is therefore punishable. - Hales Position: o Hastening a mans death is murder/manslaughter o It is a crime to take anothers death in order to save yourself you ought to die yourself rather than take an innocent life (but the judge may exercise mercy) o Dudley is guilty of murder. - Blackstones Position: o When you are faced with two evils, there is a theory that says you are allowed to (if under duress of some kind) choose the lesser evil. o Young man dying vs. All the men dying; Taking a Life vs. Letting 4 Lives Go; Drawn Out Death vs. Short/Quick Death - Francis Bacons Position: o You shouldnt take the life of an innocent but it is understandable if you did it under some circumstance of duress o Putting yourself in Dudleys shoes action is understandable - U.S. v. Holmes o Special relationship you dont have to offer yourself unless there exists a special relationship o Dudley should offer self. - Draft Criminal Code for England o 54: guilty of murder if intended to cause death of another Dudley is guilty of murder. o 43: Affirmative Defense Theory of Duress You are not guilty of murder if: If you believe action was necessary to avoid immediate death/harm to self Cannot be reasonably expected to act otherwise Unless you knowingly/without a reasonable excuse exposed self to harm

Article 3. General Principles of Justification 302. Justification Generally: Choice of Evils (1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and - Balance of Evils how you measure the evils is up to the fact-finder (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. (2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
Introductory Questions: What is a crime? - An act which will incur a formal and solemn pronouncement of the moral condemnation of the community (top of p. 3). - Moral condemnation is the most unique facet of a crime as opposed to a civil violation. We attach a stigma to the act performed and to the person. Why is it not simply the law of tells you what you cannot do? - Torts, contract law, and constitutional law all talks about what actors may not do. Why are crimes not simply about a wrongdoing to society and not an individual person? - Tort, contract law, and property law makes this definition unsound. - E.g. unconscionability; against public policy Are crimes simply laws that carry sanctions/punishments as opposed to simply making people whole (putting them back in their original position)? - You can get punitive damages in tort law. Thus, there is a punishment component outside of criminal law. Is it always that you have to do something to commit a crime? - No, there are things that failing to do will constitute a crime e.g. paying your taxes, paying child support - Omissions/failure to do things will constitute crimes as well Is an act/omission always enough in itself to constitute a crime? - No, an extenuating circumstance may provide a justification for the conduct - An act or omission is not enough alone - there must be an accompanying state of mind to do or not to do something. A culpable mental state is required to make someone guilty of a crime. That is what brings the moral condemnation of a crime that you did it knowingly, willingly, purposefully.
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Harts Four Conditions Required for the System of Crime to Work Properly (p. 4) 1. In order for the criminal law to work, people must know that the law is there - Simply be entering a state/country, you are assumed to know the law. - If you allowed people to not be convicted of crimes because people did not know the law, there would be no uniform standard of conduct. So we must operate under the assumption that we know the law. 2. Not only must you know that there is a law requiring/forbidding certain conduct, you must understand the law. 3. You must be able to comply with it 4. You must be willing to comply with it

Proof Beyond a Reasonable Doubt (p. 9) - Why do we need such a high burden of proof? o Because a criminal conviction is a stamp of moral condemnation (societys way of saying you are a bad person), we want to make sure that you deserve it. o We would rather free the guilty than convict and innocent person. Therefore, we have this high standard of proof. o We can take away liberty or life as a punishment (unlike torts) if you are convicted of a crime, thus we hold ourselves to this high burden of proof in criminal cases. - Improper jury instructions at the trial level are often a ground for appeal - Scale of Burdens of Proof: o Prima Facie (approx 25%) o Proof Beyond a Preponderance of Evidence (< 50%) TORTS CASES o Clear and Convincing Evidence (75%) o Proof Beyond a Reasonable Doubt (75%-99%) CRIMINAL CASES - Unreasonable doubts: prejudice, fantasy - Cases say we should not but a percentage on reasonable doubt. If you dont feel right, dont convict. The last thing we want a juror doing is ignoring one good reason for not finding someone guilty if there are 99 others good reasons to convict. It is about the quality, not quantity. - Jury Nullification think the person is guilty beyond a reasonable doubt, but chose to acquit anyway. These are illegitimate reasons for acquitting. Reasons for jury nullification: o Bad law o Bad discriminatory policy o Hostility towards the police/prosecutor o Sympathy with defendant o Defendant is perceived to be nice/good looking

Enforcing the Presumption of Innocence: Owens v. State Owens found behind wheel of parked car drunk in a private driveway was arrested and convicted for driving while intoxicated. There were a few empties at his feet. He was convicted for drunken driving before stopping in the private driveway. He appealed on the ground of insufficiency of evidence i.e. that the prosecutor did not overcome the presumption of innocence. Issue: whether the circumstances are inconsistent with any reasonable hypothesis of innocence. i.e. whether it can reasonably be inferred from the circumstances that it is more likely that he had just been driving or whether he was about to drive. The circumstantial evidence makes it more likely that he was coming, not going, therefore, conviction upheld. o The totality of the circumstances are inconsistent with a reasonable hypothesis of innocence. First, one usually doesnt bring empties from the house into the car. Second, there was a complaint about a suspicious vehicle, the inference being that someone had observed him driving in an erratic fashion or simply that he was somewhere he normally isnt and therefore must have driven there. The purpose of the case is to show that proof of reasonable doubt is not a tie breaker. There must have been no better explanation for the criminal conduct. All the statute really says is that there must be proof beyond a reasonable doubt that he was driving drunk.

Class Notes on Owens v. State Defendant Argues: Insufficient evidence to find proof beyond a reasonable doubt. Crime: the appellant was convicted of driving while intoxicated. The only evidence was circumstantial. He was parked in a driveway and was not driving on highways. Direct Evidence vs. Circumstantial Evidence: o Direct: seeing it snow o Circumstantial: snow was on the ground when you woke up In this case, nobody testified to seeing him driving. Indeed, even the phone call the police got said there was a suspicious vehicle parked on my block. There was circumstantial evidence that the vehicle had been on the road and that the defendant had been drinking: o There were empty beer cans in the car and an open can clasped between his legs o The engine was running, lights were on, and he was behind the wheel o The defendant was asleep and when awoken by the police he stumbled, slurred his speech, smelled of alcohol, and refused to submit to a blood test for alcohol o The fact that someone had called about a suspicious vehicle meant he did not belong in that area so he had to have driven from elsewhere. Rule in this jurisdiction is that if a conviction is based on circumstantial evidence then in order for it to be valid there cannot be any other reasonable explanation. o Is there another reasonable hypothesis? That he was in the car and was about to leave, so he had not driven on the public highways yet.

o It was not reasonable that he was just hanging out in his car drinking because it was not his house, he had no girlfriend, no radio, no evidence that he was just hanging out he had to either have been going to or coming from somewhere. o Whether it is direct or circumstantial evidence, it just needs to be believable beyond a reasonable doubt. The standard of proof is beyond a reasonable doubt. o We want better than not a coin flip. We want the alternative to be not reasonable or viable. o The Court says they are looking for a tiebreaker This is bad language. In the end, the Court decides that it is not a reasonable hypothesis to them that the defendant was about to se out. They do not believe the facts support that as a reasonable possibility. That is proof beyond a reasonable doubt.

TOPIC: PRINCIPLES OF PUNISHMENT Intro: Initial Thoughts and Hard Statistics - Punishment can include: incarceration, fines, community service, and shaming - Beginning in 1972, the imprisonment rate began rising each year. In 2005, 1 in ever 136 U.S. residents was incarcerated. - The chances of a male going to prison are 11.3%, whereas for women it is 1.8%. The likelihood of an African-American male being imprisoned is 32.2%, 17.2% for Hispanics, and 5.9% for whites. - Who should be punished? Of those whom we punish, how much punishment is appropriate? Do we under-use non-incarcerative methods of punishment? Why do we punish at all?
A. Theories of Punishment 1. IN GENERAL: KENT GREENAWALT PUNISHMENT - Although punishment has been a crucial feature of every legal system, widespread disagreements exist over the moral principles that can justify its imposition. - Since punishment involves pain or deprivation that people wish to avoid, its intentional imposition by the state requires justification. - Future threats will be taken less seriously if past threats are not fulfilled. o Police/prosecutor might decide not to proceed; a jury may acquit; or a judge may decide after conviction not to impose punishment. o If actual punishment never or very rarely followed threatened punishment, the threat would lose its significance. - Dominant approaches to justification are retributive and utilitarian. o Retributivism: claims that punishment is justified because people deserve it. This theory is backward looking because the justification for punishment is found in the prior wrongdoing. o Utilitarianism: believes that justification lies in the useful purposes that punishment serves. This theory is forward looking in the sense that punishment is justified on the basis of the supposed benefits that will accrue from its imposition. - There are two punishment questions that retributivists and utilitarians seek to answer: o What is the general justifying aim of the criminal justice system? o To whom may punishment be applied and in what manner and amount? - Greenawalts characteristics of punishment: 1. It is performed by, and directed at, agents who are responsible in some sense. 2. It involves designedly harmful or unpleasant consequences. 3. The unpleasant consequences are usually preceded by a judgment of condemnation. 4. It is imposed by one who has authority to do so.

5. It is imposed for a breach of some established rule of behavior. 6. It is imposed on an actual or supposed violator of the rule of behavior. 2. UTILITARIAN JUSTIFICATION JEREMY BENTHAM AN INTRO TO THE PRINCIPLES OF MORALS AND LEGISLATION - Based on the premise that people seek happiness and seek to avoid pain - The general object is to exclude everything that subtracts from happiness; i.e. to exclude mischief. i.e., we punish to maximize pleasure over pain. - However, all punishment in itself is evil, therefore upon the principle of utility, punishment is only appropriate where it will exclude some greater evil - Value of pain/pleasure measures by: its intensity; its duration; its certainty or uncertainty; and its propinquity or remoteness. - Punishment ought not to be inflicted where it is 1. Groundless 2. Ineffective (wont prevent the mischief) 3. Unprofitable or too expensive (where the mischief it would produce is greater than what it prevented 4. Where it is needless (where it can be prevented in an easier or cheaper way) KENT GREENAWALT PUNISHMENT - According to Benthams classical utilitarianism, whether an act or social practice is morally desirable depends upon whether it promotes human happiness better than possible alternatives - Since punishment involves pain, it can be justified only if it accomplishes enough good consequences to outweigh its harm. - Benefits of punishment under utilitarianism 1. General Deterrence: knowledge that punishment will follow crime deters people from committing crimes, thus reducing future violations of right. i.e. punishing the individual helps deter others from committing the crime, sets an example. 2. Individual Deterrence: the actual imposition of punishment creates fear in the offender that if he repeats his act, he will be punished again. a. Under both general and individual deterrence, the threatened punishment must be greater than the pleasure he will attain from committing the crime, even when discounted by the probability of avoiding detection. b. For deterrence to be effective people must have notice of the threat of punishment, he must hear the threat accurately, and the threat must be credible. 3. Incapacitation and other forms of risk management: imprisonment and the death penalty and parole physically prevent dangerous people from acting upon their destructive tendencies 4. Reform: punishment may help to reform the criminal so that his wish to commit crimes will be lessened. - Research indicates that the benefit of punishment depends on various factors, including: the nature of the offense; the type of offender involved; the perceived risk of detection, arrest, and conviction; and the nature and severity of the penalties threatened or imposed.
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The current strategy of incarcerating more persons and for longer terms is justified on two grounds: first, that incarcerated criminals cannot commit more crimes while imprisoned; and second, the increased likelihood of long prison sentences will dissuade others from committing crimes

3. RETRIBUTIVE JUSTIFICATIONS MICHAEL S. MOORE THE MORAL WORTH OF RETRIBUTION - For a retributivist, we are justified in punishing because and only because offenders deserve it because they are morally blameworthy. - Further, that punishment should be imposed even if it serves no beneficial (utilitarian) purpose. - Punishment must be imposed because the offender deserves to be treated as a moral agent who has earned punishment by his crime. - Not about personal satisfaction, about societys order being restored. - Lex talionis (i.e. an eye for an eye): punishment should be proportionate to the crime.

JAMES FITZJAMES STEPHEN A HISTORY OF THE CRIMINAL LAW OF ENGLAND - The criminal law proceeds upon the principle that it is morally right to hate criminals, and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it. - Assaultive retribution: it is morally right to hate criminals and inflict punishment that reflects this hate - Punishment is restricted to those who made moral, willing choices

HERBERT MORRIS PERSONS AND PUNISHMENT - Protective retribution: society has a right to punish wrongdoers and criminals have earned the right to be punished.

B. The Penal Theories in Action How Much (and What) Punishment Should be Imposed? People v. Superior Court (Du) Wife of liquor store owner, while working at the store was robbed by 15 year old Latasha of a bottle of OJ. D attempted to get the OJ from victims backpack and victim hit defendant twice. D threw a stool at victim, missed, and then shot her in the back of the head, after victim had placed the OJ on the counter and turned to leave. Gun was found to be altered as a result of it being previously stolen, making it much more dangerous. D was unaware of these alterations and didnt know how to properly use gun. The jury found D guilty of voluntary manslaughter. The probation report concluded that defendant was unlikely to commit another crime if she was to remain free. Issue: What sentence should be imposed on defendant? D was initially sentenced to 10 years (6 for voluntary manslaughter, 4 for the commission of a felony using a gun) but then the judge suspended her sentence and placed D on probation. First, the unique nature of each crime of voluntary manslaughter makes uniformity in sentencing virtually impossible. Second, D not dangerous so she neednt be incarcerated to protect society. Third, state prison is not necessary to encourage D to lead a lawabiding life. Fourth, state prison may be necessary to punish D. Because she used a firearm there is a presumption against probation UNLESS it can be shown that this was an unusual case. (Doesnt need to punish on utilitarian grounds) o First, the statute is aimed at criminals who arm themselves when they commit other crimes, not at shopkeepers who possess guns for their own protection. o Second, D has no record. o Third, D committed the crime under circumstances of provocation and duress. o Therefore, this is an unusual case that overcomes the statutory presumption against probation. Probation is appropriate because of the unique nature of her crime, and because she isnt a danger if she isnt incarcerated. CLASS NOTES JANUARY 19, 2011 Theories of Punishment: People v. Du (1992) - Korean woman is a liquor store owner (51 year old) shoots and kills a 15 year old girl that she suspected of stealing an orange juice from her store. The two engaged in a struggle before the fatal shot. The young girl is leaving when a modified gun that had been returned to the defendant after it was robbed is used to shoot her. - Seven objectives of sentencing: (from People v. Du) 1. Protect society (utilitarian) 2. Punish Defendant for committing the crime (retributative) 3. Encourage D to lead a law abiding life (Utilitarian) 4. Deter others (utilitarian) 5. Isolate D so she cannot commit more crimes (utilitarian)

6. Secure Restitution for the victim (utilitarian) 7. Uniformity in sentencing (utilitarian) TWO PHILOSOPHIES OF PUNISHMENT Utilitarianism - Cost-benefit analysis - If society will not gain enough from the punishment, it is not worth it - As long as there is some gain to society, punishment should be enforced - Utilitarian Goal of Punishment: o Deterrence General Deterrence: discourage other people from acting like defendant Specific Deterrence: discourage people from repeating crime themselves o Rehabilitation It is for the benefit of society to rehabilitate individuals o Incarceration Prevents dangerous people from hurting other members of society Retributivism - We dont punish for benefits, we punish because the criminals deserve it. What the criminal did was morally blameworthy. - Retribution is about what is right and what is wrong. - You are punished because you violated societal norms. This will set societys moral equilibrium back. Cesare Beccaria - In order for punishment to deter future crimes the punishment must 1. Be swift: punishment/reward has to come right after offense 2. Be severe: has to be a real punishment/deprivation 3. Be certain: if you know punishment will follow, likely to curb behavior

How does Karlins punishment hold up under these two theories of punishment? - On Utilitarianism: Judge Karlins punishment ruling works in terms of specific deterrence (she will not hurt again) but it does not satisfy the general deterrence (sets a bad precedent for other Korean-African American interaction). - On Retributivism: she was a child, the society needs moral compensation and closure for her death.

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TOPIC: THE LEGALITY PRINCIPLE

Modern Role of Criminal Statutes A. Three doctrines that describe relation between courts and legislatures: 1. Legality Principle (nulla poena sine lege) condemns judicial crime creation a. Prevents ex-post facto laws you cant be punished for an action that took place before a law was made 2. Statutory Clarity forbids legislative delegation of lawmaking to the courts 3. Rule of Strict Construction judicial resolution of residual uncertainty in the meaning of penal statutes should be biased in favor of the accused B. Principle of Legality a. What is the Legality Principle? 1. Courts cannot create a crime - Because you essentially have judges deciding what the public thinks is immoral and making up the criminal law as they go along 2. No crime without a law created by the legislature 3. Anything not defined as a crime cannot be punished b. Previously Defined Conduct 1. The crime must be previously defined by the legislature 2. Problems with judges making laws: a. Inconsistency b. Unfair notice c. Illegality - judge may not accurately represent public morality d. No check c. The legality principle is about: 1. Notice to individuals and the 2. Appropriate people (legislature) making the decisions (Mochan) d. It is the legislatures job to define crimes, and the courts job to interpret them e. Constitutional problem and separation of powers problem who is checking/balancing?

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The Requirement of Previously Defined Conduct: Commonwealth v. Mochan

Facts: D made repeated phone calls to the home of the victim and her family and during those calls made lewd statements about victim and her reputation as a woman of ill repute. Defendant now appeals on the grounds "that the conduct charged in the indictments, concededly not a criminal offense in this State by any statute, does not constitute a misdemeanor at common law." Issue: Was the Defendant properly convicted for violating the common law crime of outraging decency and injuring public morals? Holding: Yes. The Pennsylvania Penal Code, at the time of this case, provided that common law crimes were still punishable. Reasoning: The defendants phone calls suggested sodomy and consisted of lewd, immoral, and filthy language. These acts, at least potentially, injured public morality. The defendants conviction was therefore justified. Rule: "The test is not whether precedents can be found in the books but whether the alleged crimes could have been prosecuted and the offenders punished under the common law." o A person may be prosecuted for committing a common law crime even if such crime has not been specifically enacted into legislation Dissent: Under the division of powers in our constitution, it is for the legislature to determine what injures or tends to injure the public.

Class Notes on Commonwealth v. Mochan

Common law judicially created law Before we had statutes, we were a common-law jurisdiction. But with the rise of statutes and notice to individuals, you couldnt let the judges make up the law as they go along PA compromise: here is our criminal code but if we missed something or did not cover something properly, there was an implied sense of notice that certain things under the criminal law were meant to be included o Was the crime that Mochan did included in this? Court lists six things that may fall into a category of common-law crimes: 1. Injuriously affect public morale 2. Obstructs or perverts public justice 3. Administration of justice 4. Openly outrageous decency 5. Scandalously affects morals/health of the community 6. Vilify the Christian religion At the very least, Mochans conduct injuriously affected public morality because others could listen in on the party-line The dissenting justice suggests that this is wrong because it is an usurpation of the legislative power. The court is determining what is a crime and what is not this is for the legislature to determine. o There would be no uniformity judges decide what is injurious to the public morality in each case. Could discriminate unfairly against people accused of the same thing.

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o Power of judges is unrestrained o Could violate due process The Requirement of Previously Defined Conduct: Keeler v. Superior Court - Nature of Case: writ of prohibition failure to state a claim - Facts: Defendant Keeler intentionally kicked his ex-wife, Teresa Keeler, in the stomach in an attempt to abort her unborn child which had been fathered by another man. The Defendant was charged with murder and appealed on the issue of whether the killing of an unborn fetus constitutes murder. o California murder statute provides that Murder is the unlawful killing of a human being, with malice aforethought. - Issue: whether an unborn but viable fetus is a human being within the meaning of the CA statute defining murder. - Holding: No. The legislature did not intend such a meaning. Thus, a viable fetus is not a human being for the purposes of this statute - Reasoning: Citing the common law precedent available to the legislature when it enacted the homicide statute in 1850, the Court held that the legislature did not intend that murder include the killing of an unborn fetus. For the judiciary to enlarge the crime of murder beyond what the Legislature intended would be an unconstitutional usurpation of the legislative powers. Further, due process requires that the D be made aware that his conduct is criminal. By enlarging the statute to include unborn fetuses, the judiciary would be depriving the D of fair warning. - Dissent: If a D kills an unborn, but viable, fetus, the offense is murder. The majoritys reliance on common law principles to define murder is improper since the legislature has defined the offense of murder. Further, the D had proper notice that his actions could constitute homicide. It would be absurd to suggest that he would have consulted legal treatises before acting. Notes and Questions - After this case the CA legislature changed the murder statute to include fetus - Dissent would have preferred an addendum saying that a viable fetus is a human being (legislature avoided saying something to be used in abortion debate)

Class Notes on Keeler v. Superior Court - Prior legislation and case-law stated that the baby needed to have been born alive and then subsequently die because of the injury sustained while in the womb in order to constitute a human being under CAs murder statute o This was the case because previously in 1850 the infant mortality rate was higher even without injury to the fetus. Could not be sure if the fetus would have been born alive without injury, so could not punish for murder. o Today, the Keeler babys survival rate was 75-96% and our ability to determine it is much better now - Court has to decide whether in 1872 the legislature intended fetus to be included - Why could you not change the meaning to include fetus as a human being? o Mr. Keeler did not have fair warning that if he killed a fetus that he could be prosecuted for murder because that is not how the statute had been interpreted previously. We adopt this because it is not the job of the judiciary to do this Court is not allowed to penalize someone for conduct that had not been deemed criminal. Unfair discrimination and no fair warning.
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Otherwise, we would be punishing unfairly w/ no real law.

The Values of Statutory Clarity: In Re Banks Facts: Defendant, convicted under a Peeping Tom statute, argues the statute is unconstitutional for two reasons. First, he claims that it is unconstitutionally vague, "because "men of common intelligence must necessarily guess at its meaning and differ as to its application." And second, that it is overly broad because it prohibits innocent conduct. Rule: A criminal statute must be sufficiently definite to give notice of the act proscribed. Issue: Is the North Carolina Peeping Tom statute unconstitutionally vague? Holding: No. Reasoning: Definiteness is an essential element of due process of law. A criminal statute must be sufficiently definite to give notice of the act proscribed. The statute is presumed constitutional and must be so held unless it conflicts with some constitutional provision. Where the statute is clear and unambiguous on its face, the courts must give the statute its plain meaning. However, where there is an ambiguity in the statute, the Court must look to the legislative intent. In the present case, the North Carolina statute at issue is clear and unambiguous. The law makes it a crime to peep secretly. Citing precedent, the Supreme Court of North Carolina defines this phrase so that the statute can easily be read to prohibit the wrongful spying into a room upon a female with the intent of violating the females legitimate expectation of privacy. This reading is sufficient to place a person of ordinary intelligence on notice of what activity constitutes a crime. Therefore, the North Carolina Peeping Tom statute is sufficiently definite to give an individual fair notice of the conduct prohibited. The statute does not violate the North Carolina State Constitution or the Due Process Clause of the Federal Constitution by reason of vagueness or uncertainty. Class Notes on In Re Banks - We want statutes to be clear and narrow for practical and constitutional purposes - Banks violated the Peeping Tom statute and he is arguing that the statute is unconstitutionally vague and did not cover his conduct. The phrase peep secretly was argued to be unclear. o Dont know what it means o Too broad for constitutional purposes - Looked at previous case for common-law interpretations. o State v. Banks: Defined secretly as spying on another with the intention of invading privacy Still problems with this language what is the measure of invading privacy e.g. difference between kitchen and bedroom o State v. Bivens: Defined peep as to look cautiously or slyly as if through a crevice out from chinks and knotholes - Without these definitions, the peeping tom statute is too broad and can encompass legal behavior e.g. checking in our daughter while she is sleeping.

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The Values of Statutory Clarity: City of Chicago v. Morales Facts: In 1992, the City of Chicago enacted the Gang Congregation Ordinance, which prohibits people from loitering with one another in any public place. According to the ordinance, a police officer may order anyone he reasonably believes to be a gang member loitering in a public place with another person or persons to disperse. Failure to disperse after such an order is a violation of the ordinance. Issue: The question is whether the ordinance violates the Due Process Clause of the Fourteenth Amendment. Holding: Yes. The Court held that the ordinance was unconstitutionally vague. Reasoning: - It did not provide sufficiently specific limits on the enforcement discretion of the police, nor did it provide sufficient notice to citizens who wish to use the public streets. - The term loiter, defined under the ordinance as to remain in any one place with no apparent purpose, is impermissibly vague. Further, police officers are granted a vast amount of discretion in ordering dispersal. Hence, the ordinance violates the Due Process Clause of the Fourteenth Amendment of the Constitution in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties. Rule: A statute violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution (Constitution) if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits. Dissent.Justice Antonin Scalia (J. Scalia) dissents. J. Scalia opines that the statute is not impermissibly vague nor are police officers granted any more discretion in its enforcement than in numerous other measures. Rather, the people of Chicago have willingly traded the freedom to hang out with gang members in order to eliminate gang crime. Concurrence.OConnor specifically finds the phrase no apparent purpose in the definition of loitering to be overbroad. She would more narrowly tailor the definition to serve the purpose of deterring gang violence without criminalizing innocent behavior.
Class Notes on City of Chicago v. Morales - Loitering statute to discourage gang congregation. You have committed a crime if you do not disperse when the police gave you an order to disperse. Argued that this statute is unconstitutionally vague. o Remaining in one place with no apparent purpose Apparent Purpose is in the eyes of the person who is doing the looking. No notice given to the reasonable person that they are loitering. The conduct is not specified. The enforcers of the law need to know what the standard is a reasonably ascertainable standard of guilt. o Dispersal Order what is the area; how far do you have to go; when can you come back Individuals have no notice and enforcers dont know what the standard is - Jury does not have a common understanding to determine if the conduct falls within the statute (unlike the peeping Tom statute)
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Standard: reasonably ascertainable standard of guilt TOPIC: STATUTORY INTERPRETATION United States v. Foster Facts: - The Defendant, Leon Foster (Defendant) and Sandra Ward (Ward) manufactured methamphetamine. In 1989, the police became aware of their activity and pulled the Defendant over while he was driving his pickup truck and arrested him. In the Defendants truck bed, in a zipped up bag, under a snap-down tarp, the police found a loaded 9 mm semiautomatic and a bucket. Inside the bucket were a scale, plastic baggies and some handwritten notes with prices. - Defendant was subsequently convicted of possessing methamphetamine in violation of 21 U.S.C. Section:844 and of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Section:924(c)(1). That section provides that whoever, during and in relation to any crime of violence or drug trafficking crime, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years? Issue: What does it mean to carry a gun within the meaning of 18 U.S.C. Section:924(c)(1)? Holding: The Defendants gun was not immediately available for use. While driving, Foster could not reach the gun that was under a snap-down tarp and within a zipped-up bag. As a result, the Defendant cannot be convicted for carrying a firearm in violation of 18 U.S.C. Section:924(c)(1). Rule: In order for a defendant to be convicted of carrying a gun in violation of Section:924(c)(1), the defendant must have transported the firearm on or about his person. This means that the firearm must have been immediately available for use by the defendant. Dissent: The majority was too obsessed with coming to the correct definition of the word carry. The majority should have followed the case of United States v. Barber with respect to this decision. The Barber case assigns a definition to carry that includes transportation or causing to be transported. Nothing in the legislative history of the statutory section indicates that Congress wanted to assign the narrow meaning to carry that was proscribed by the majority.

Class Notes on Foster

This case shows us what the Court looks like to determine the meaning of a statute and the possibility that they can come to opposite conclusions Issue: whether having a gun in a bag, under a tarp, in the back of a pickup truck constitute carrying a gun for the purposes of 18 U.S.C. 924(c)(1) Majority goes with the narrow definition of carry and looks to (p. 117): o Dictionaries; Prior Case Law; Context within the statute; Congressional Intent; Legislative History; Changes to the statute Dissent: looks at the same sources as the majority and reaches a different conclusion majority is ignoring prior case law; looks at the policy implications of the majoritys decision. Why did each opinion go the way it did given that they had the same material? o Judicial Minimalism o Position on the Second Amendment o Affects on society o Textualist approach

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Topic: Actus Reus

Introductory Comment: Defining Actus Reus - A crime contains two components: o Actus Reus the physical or external part of the crime o Mens Rea the mental or internal ingredient - The term actus reus has no universally accepted definition. The most common definition of the term would include both the conduct and the harmful result. - There are two types of crimes: o Result crime: homicide The offense seeks to prevent or punish a harmful result o Conduct crime: driving while intoxicated No bad result no death or injury to person or property is required to be guilty of such an offense. The actus reus of the offense will not include any harmful result. Model Penal Code Section 2.01: Requirement of Voluntary Act - A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. - Voluntary Act: a product of the effort or determination of the actor, either conscious or habitual Social Harm Two types of offenses: 1. Result Crimes o The law punishes because of an unwanted outcome, such as the death of another person or the destruction of property o The law is not punishing a person for his thoughts or even for his voluntary acts or omissions, but rather is punishing for the harm resulting from his acts or omissions. o Because the result is a crime, we call the outcome social harm. The loss suffered from the crime is experienced not only by the immediate victim, but also by society (e.g. communitys loss of security). 2. Conduct Crimes o The law prohibits specific dangerous behavior to avoid the harm that can result from such conduct if it is not deterred or terminated o Is there a social harm when a person commits a conduct crime? YES Endangerment of a socially valuable interest occurs Attendant Circumstance - Offenses also contain attendant circumstance elements - Such elements constitute a part of the actus reus of an offense. - An attendant circumstance is a condition that must be present, in conjunction with the prohibited conduct or result, in order to constitute the crime.
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Voluntary Act: Martin v. State - Martin was charged with the crime of public drunkenness. He was arrested at his home and brought to the public highway where they charged him with this crime. - According to this statute, the elements of this crime are: o Appears in any public place where one/more persons are present o Manifests a drunken condition (indecent conduct, loud/profane discourse) - Did Martin appear and manifest? Yes - What is the actus reus in this statute? o There is no mention of the mental state necessary if not mens rea, than everything else is actus reus - This is a conduct crime. o There is a social harm risk dangerous; nuisance - We dont want to punish someone if the act is involuntary. They do not deserve the punishment or stigma that comes with it. Therefore, we impute a voluntariness requirement. o As a result, the conviction against Martin was reversed. The voluntary element was not met. Why was it not voluntary? Police could have been transporting him to the police station for a different charge that didnt stick He didnt choose to appear on the public road. Notes and Questions - The often-stated rule is that the criminal law punishes conduct and not mere thoughts. - The act requirement serves a number of closely-related objectives: it seeks to assure that the evil intent of the man branded a criminal has been expressed in a manner signifying harm to society; that there is no longer any substantial likelihood that he will be deterred by the threat of sanction; and that there has been an identifiable occurrence so that multiple prosecution and punishment may be minimized. - Voluntary vs. Involuntary Actions. Influenced by Model Penal Code 2.01(1), many modern criminal codes expressly provide that a person is not guilty of an offense unless his conduct includes a voluntary act or the omission to perform an act of which he is physically capable. o This provision not only excludes punishment for mere thoughts, but it bars liability for purely involuntary conduct. o Persons whose involuntary movements threaten harm to others may present a public health or safety problem, calling for therapy or even for custodial commitment

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Voluntary Act: State v. Utter - Facts: Mr. Utter stabbed his son to death after heavily drinking all day. He was charged with the crime of murder in the second degree. He was convicted by a jury of the crime of manslaughter. He appeals from that conviction. - Issue: Whether the trial court erred in instructing the jury to disregard the evidence on conditioned response. - According to Utter this conduct was a conditioned response because of his jungle combat training in prior military warfare o Definition: an act or a pattern of activity occurring so rapidly, so uniformly as to be automatic in response to a certain stimulus. o Utter was militarily trained in such a way that he would react violently automatically and irresistibly towards people who approached him unexpectedly from the rear - Trial Court refused to give jury instructions that Utters actions could have been the result of conditioned response - Utters argument: his act was not voluntary he did not choose to do it. The acts he committed were not those which involved mental processes, but rather were learned physical reactions to external stimuli which operated automatically on his autonomic nervous system. A person in an automatistic or unconscious state is incapable of committing a culpable act. o Standard: For an act to be an act for criminal purposes, it must be an act of volition/will. o The absence of consciousness excludes the possibility of a voluntary act without which there can be no criminal liability. - Court of Appeals: Appellants theory should have been presented to the jury if there was substantial evidence given at the trial to support it. However, there was not substantial evidence. o Nobody could testify, including Mr. Utter himself, that Utter was acting under conditioned response when he killed his son. No evidence linking the concept of conditioned response with what happened in the room. o It was not because of the alcohol consumption that barred the instruction; it was a mere evidentiary ruling. - Court of Appeals said that even if the conditioned response instructions were given to the jury, they could have been accompanied with a warning about voluntary drunkenness. What is the relevance of his voluntary intoxication to his defense that he involuntary acted? o Utters voluntary actions put him in the position to commit his involuntary action. Therefore, the jury does not have to take into consideration that he was not acting voluntarily. Notes and Questions - Automatism. It is well established that automatism can be asserted as a defense. But, the focus is on the manner in which evidence of automatism can be presented. - Voluntary Act vs. Mens Rea. The term mens rea signifies the actors state of mind regarding the social harm of the offense, whereas the element of voluntariness applies
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to the act that caused the social harm. Omissions (Negative Acts): People v. Beardsley - Facts: Beardsley and Burns have an affair and they spend the weekend drinking and doing drugs. Burns takes morphine pills and becomes unconscious. She is sent downstairs to a neighbor Skobas apartment because Beardsleys wife is on her way home. Beardsley was convicted of manslaughter. - Issue: Whether Beardsley owed a duty of care to Mrs. Burns - Rule: under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owning, will make the other chargeable with manslaughter. - Holding: Burns was over 30 years old, married twice, drank heavily no duty owed o Easier to say that there is not duty to protect her if she is not worthy of that kind of heightened protection. o Burns is not his wife so no such legal duty is due as exists from a husband towards his wife

Notes and Questions - Five situations in which the failure to act may constitute breach of a legal duty (137) - Where a statute imposes a duty - Where one stands in a certain status relationship to another - Where one has assumed a contractual duty to care for another - Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid - Where a person creates a risk of harm to another - Why does the common law permit people callously to permit harm to come to others, even when they could prevent or mitigate the harm at no significant risk to themselves? - Non-doings (omissions) are inherently more ambiguous than wrongdoings (acts). It is harder to determine the motives and, thus the culpability of an omitter. - Difficult line-drawing problems arise in omission cases - Well-meaning bystanders often make matters worse by intervening in ongoing events. A rule requiring assistance might cause more harm than good. - Freedom in a society that generally values personal autonomy, we need to be exceptionally cautious about creating legal duties to act that compel us to benefit others, rather than passing laws that simply require us not to harm others. - Misprison of a Felony. Absent special circumstances, a person has no legal duty to inform the police of another persons plan to commit a criminal offense

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Distinguishing Acts from Omissions: Barber v. Superior Court - Issue: termination of life issue (euthanasia) o Whether the evidence presented before the magistrate was sufficient to support his determination that petitioners should not be held to answer to the charges of murder and conspiracy to commit murder. o Whether the doctors conduct was unlawful under the murder statute. o Whether physicians have a duty to continue to provide life sustaining treatment to a patient who has been reliably diagnosed as in a comatose state from which any meaningful recovery of cognitive brain function is exceedingly unlikely. - Facts: - When the issue arises, Mr. Herbert is in a vegetative state. He has no brain activity and is being sustained by life-support medial equipment. - 2 physicians consult with family and decide to remove the respirator, but patient continues to breath on his own without any signs of improvement. - Two days later, the doctors consult with the family again and they take him off the feeding tubes and he dies. - Procedural Posture: - Writ of Prohibition: we are in a pre-trial context (raising a legal issue before a case takes place, rather than after it) - Holding: A physician has no duty to continue treatment, once it has proved to be ineffective. Although there may be a duty to provide life-sustaining machinery in the immediate aftermath of a cardio-respiratory arrest, there is not duty to continue its use once it has become futile in the opinion of qualified medical personnel. - Rule: There is no criminal liability for failure to act unless there is a legal duty to act. - Murder Statute: unlawful killing of a human being with malice and forethought - Forethought, human being, and killing requirement is satisfied - However, was it unlawful? - Reasoning: - Court views the act of discontinuing the feeding tube as more like stopping a treatment that is no longer working. What caused the death was not the pulling of the plug (an act) but rather the no longer administering food (omission) - If this is an omission, we must find whether or not there was a duty. Rule in these circumstances should be no duty because of proportionate treatment a reasonable chance of providing benefits which outweigh the burdens Ask patient: does the benefit to you outweigh the burden? o Psychologically, physically, emotionally, financially Family made the determination that the burdens outweighed the benefit of treatment By calling it an omission, they avoid making a declaration where killing someone is lawful - (If this was an act, we would have to see if it was unlawful) Notes and Questions
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- Euthanasia is not a criminal defense. Why do we have an actus reus requirement? Why is it not enough that someone thinks bad things? Why arent omissions generally enough? Why do we hold ourselves to an act requirement for criminal liability except in the narrow exceptions of special relationships? - Generally, there is no duty to act - The function of the actus reus requirement is o Line drawing problem who is responsible? The closest person? o Freedom of thought principle - cant punish thoughts first amendment right nothing has actually happened. Cant prove when it would have happened o Freedom of action principle we are requiring people to act violates our individualistic American liberty you are not allowed to tell me to help. Why do we not want to subject people to liability for not acting? - Paralyzed with fear - Dont want them to put themselves in danger - Reasonableness standards about whether or not to act are a wishy-washy standard we dont want people to be required to think about these things while going about their daily lives - More comfortable with this in tort law, not criminal law Why are France and the Asian countries comfortable with imposing legal obligations and liability in Good-Samaritan contexts? Why are we so resistant to this? Why is it so repugnant? - Philosophy Principle/Liberty Principle: our founding is based on freedom from constraint from above - Economy Principle: our capitalist economy is an individualistic system - Social norms compensate for absence of a legal obligation in these contexts - We are not a homogenous society like France/Asian countries. We have always been a nation of immigrants different values and cultural background - We dont have a shared view of what is good/bad and right/wrong - No universal morality/ethics - Racial History

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TOPIC: MENS REA

Introductory Note on Mens Rea - Not only there must be an act, you must have a criminal state of mind. - An act is not in and of itself enough - It must be performed with a criminally culpable mental state that the statute requires. - The hard part is that o The statute often does not define was a criminally culpable mental state is o Even when we dont have to impute the meaning of a criminally culpable mental state, there can still be conflicting definitions o We have the difficult task of picking which of the conflicting definition applies P. 145-146: Example - D was charged with the offense of operating a vehicle in a reckless or culpably negligent manner, causing the death of another person o Actus Reus: operating a vehicle; causing the death o Attendant Circumstances: vehicle; death of another (as opposed to self) o Mens Rea: reckless or culpably negligent manner POLICY: Why do we require a guilty mind in addition to the act? Why is it not enough to just have an act to find someone guilty? Why is it in societys interest? - We dont want to punish accidental behavior - Dont want to attach the stigma and punishment to an accident (act) or a failure to act (omission e.g. in hospital so couldnt pay taxes) - Wont deter if it was not an accident - No utilitarian benefit to punishing because not general deterrence - We dont see it as morally blameworthy

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Nature of Mens Rea: United States v. Cordoba Hincapie - The term mens rea, meaning a guilty mind; a guilty or wrongful purpose; a criminal intent, is shorthand for a broad network of concepts. - Western nations have long looked to the wrongdoers mind to determine both the propriety and the grading of punishment. - A requirement of mens rea is deeply rooted in our legal tradition as one of our first principles of law. Notes and Questions The two usages of mens rea. 1. Culpability meaning of mens rea (broad) - Guilty mind, vicious will, immorality of motive, or simply, morally culpable state of mind. - A defendant is guilty of a crime if she commits the social harm of the offense with any morally blameworthy state of mind. - It is not significant whether she caused the social harm intentionally, or instead, with some other blameworthy mental states (e.g. recklessly) 2. Elemental meaning of mens rea (narrow) - Refers to the mental state the defendant must have had with regard to the social harm elements set out in the definition of the offense. - A defendant is not guilty of an offense, even if she has a culpable frame of mind, if she lacks the mental state specified in the definition of the crime.

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Nature of Mens Rea: Regina v. Cunningham - Facts: Fiance Cunningham tore off the gas meter in the basement of the house he was going to live in to make some extra cash. In the process, he broke the pipe and released methane gas, which seeped into the house next door to his where his mother-in-law lived. He was charged with the crime of endangering life with a malicious state of mind. - Procedural Posture: - Trial judge instructed the jury that the meaning of malicious was wicked. The Trial Court found that Cunningham was 'acting wickedly' when he stole the gas meter. Therefore he met the requirement of having 'malicious intent' to be convicted of attempted murder This broad definition of mens rea adopted by the trial court was not good enough for the Appellate Court - Issue: whether the act of Cunningham was malicious within the meaning of 23 of the Offences against the Person Act, 1861. - Holding: No; it did not fall within the meaning of malicious, which requires either (1) an actual intention to do the particular kind of harm that was in fact done, or (2) reckless as to whether such harm should occur or not (the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it anyway) - Jury instructed wrongly - Appellate Court finds that the accepted common-law standard was intentionally or recklessly causing the harm. - Intended the injury to her or foreseen it but went forward nonetheless - Reasoning: No facts suggested either the intentional or reckless element - Intentionally: means it had to be the Ds actual intention to do the particular kind of harm that was actually done - Recklessly: did not have to prove it was his goal or that he was aware that it was going to happen; all that had to be proven was that it was a foreseeable harm but go forward anyway Notes and Questions - The trial court malice meant wicked. In contrast, the appellate court treated malice as shorthand for two distinguishable states of mind either intent or recklessness.

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General Issues in Proving Culpability Intent: People v. Conley - Facts: Conley hit a kid in the face with a wine bottle, though he was not the intended target. The victim broke his jaw and permanent negative effects. - Defendant has two objections to the conviction (he does not object by appealing to the intent issue because intent can be transferred): Did not prove permanent injury Response: we have an established standard injured part no longer serves the body the same way as it did before the injury this objection is satisfied Mens rea was not sufficiently proven even if it was transferred from intended victim to unintended victim You did not prove that I intentionally or knowingly caused that great bodily harm or permanent disability - Procedural Posture: Conley was found guilty of aggravated battery on the basis that the victim suffered permanent injury. The defendant appealed, arguing that the State failed to prove there was a permanent disability and that Conley intended to cause a permanent disability. - Statute: a person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery. - Issue: whether the mens rea requirement was proven; whether the defendant intentionally or knowingly caused permanent disability to the victim - Holding: Yes, the defendant intended to cause permanent disability to the victim - Reasoning: - Court infers intent from the circumstances: Weapon used Force of the blow Surrounding circumstances Absence of warning - Standard: intent is inferred from circumstances - The court here adopts a narrow, elemental reading of mens rea. - Intentionally: conscious objective or purpose - Knowingly: conscious awareness that result was practically certain - Was it Conleys goal to cause permanent injury? - No, just to inflict pain - Was Conely practically certain that the result would occur when he swung that bottle? - The problem is that knowing is a subjective element. The person committing the crime must have knowledge how can we be certain that they had knowledge that such a result would be practically certain? Thus, we must look at the surrounding circumstances How does the definition of intentionally differ in the Cunningham and Conley case? - There is no difference intentional is limited to the conscious object or purpose - MPC indicate that many jurisdictions find intent as encompassing intentionally &
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knowingly Notes and Questions 1. Battery. Generally, a criminal battery is an unlawful application of force to the person of another. The tus reus of battery is clear (the slightest unlawful and offensive touching), the mens rea is less clear. 2. Common law intent. As far as result crimes go, the term intent ordinarily is defined to include not only those results that are the conscious object of the actor what he wants to occur but also those results that the actor knows are virtually certain to occur from his conduct, even if he does not want them to arise. 3. Proving Intent. It seems that it is usually true that one can reasonably infer that a person intends the foreseeable consequences of their actions. However, intent cannot be presumed, but rather must be proved beyond a reasonable doubt. The jury is not barred from using their common sense. 4. Transferred Intent. In Conley, the D attempted to hit one person but instead struck another. When a defendant intends to harm one person but accidentally causes it to another, courts assert the transferred intent doctrine. It is explained that the accused is deemed culpable and society is harm just as much as if the defendant had accomplished what he had initially intended. Justice is achieved by punishing the D for a crime of the same seriousness as the one he tried to commit against his intended victim. - Dressler and others argue that transferred intent is unnecessary to obtain a just result. They say that even if, for example, the human being killed was different than the human being the defendant intended to kill, the tus reus and mens rea are still present under the common forms of the criminal homicide statute. o The intent does not exist in the perpetrator only in relation to an intended victim. There is no requirement of an unlawful intent to kill an intended victim. The law speaks in terms of an unlawful intent to kill a person, not the person intended to be killed. - The difficulty arises, Dressler argues, when you try to transfer intent not only between different victims, but different crimes.

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Knowledge of Attendant Circumstances (The Wilful Blindness Prob.): State v. Nations - Facts: D owned a disco where she employed a girl who was 16 years old as a dancer. D told police that she verified the age of the dancer before she started working at the disco. This proved to be untrue since the girl didnt have any ID. D was charged with endangering the welfare of a child less than 17 years old. o D argues that the state failed to show that she knew the child was under 17, and therefore, failed to show that she had the requisite intent to endanger the welfare of a child under 17 yrs. old. - Statute: 568.050 o A person commits the crime of endangering the welfare of a child if: He knowingly encourages, aids, or causes a child less than 17 years old to engage in any conduct which causes or tends to cause the child to come within the behavior, environment, or associations that are injurious to the welfare of the child - Procedural Posture: Lower court found D guilty; D appealed - Issues: whether the state showed that the D had knowledge that the child was less than 17 years old. - Holding. No the state did not show the D had knowledge that the child was less than 17 years old; at best, the state proves D did not know or refused to learn the childs age - Rule: A D must have actual knowledge of the existence of attendant circumstances which constitute the crime to knowingly engage in criminal conduct. - Reasoning: o The applicable criminal code of MO defines knowingly as actual knowledge, excluding those cases where a D has "willfully shut his eyes" to avoid knowing. o MPC includes willful blindness, but the state code has not adopted that definition for knowingly. Thus, there has to be actual knowledge. o D did not check the girl's ID, but that does not prove that D actually knew the girl was less than 17. o D was only aware of a high probability that the girl was under 17 which does not amount to actual knowledge under the state criminal code. Here, the issue is not whether the actions of the D endangered the welfare of the child. Rather, it is whether the Ds state of mind satisfied the definition of knowingly in this particular statute. o We are not asking whether she did or did not know. We are asking if her state of mind satisfied the mens rea requirement necessary for conviction under the statute. Ds state of mind when putting the child into that environment was that she seemed to be aware that the girl may be underage (i.e. high probability that the girl was underage). o Why is this not enough for her conviction? The MO statute requires actual knowledge that the girl was under 17. At best, we proved awareness of a high probability. The govt is
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trying to get the court to allow a conviction for wilful blindness. Notes and Questions: State v. Nations 1. The person D employed was less than 17 years old but D claimed that she did not know it. The prosecutor responded that she did in fact know it or, at least, that she purposely avoided learning the truth - In the latter case, the D is said to be guilty of knowledge because of her willful blindness - the judge typically provides an ostrich instruction to the jury. o No one can avoid responsibility for a crime by deliberately ignoring what is obvious. A persons knowledge of a particular fact may be shown from a deliberate or intentional ignorance or deliberate or intentional blindness to the existence of that fact. - Criticism of the ostrich instruction: its tendency is to allow juries to convict upon a finding of negligence for crimes that require knowledge. o Response: Think about the actions of an ostrich they bury their heads in the sand so that they will not see or hear bad things. They deliberately avoid acquiring unpleasant knowledge. A deliberate effort to avoid guilty knowledge is all the guilty knowledge the law requires. 2. Wilful. This is a term that is frequently used in MPC statutes. Two common interpretations of the term have developed. - Willful merely means that the actor intentionally committed the prohibited act. - The term requires proof that the actor intentionally performed the prohibited act in bad faith, with a wrongful motive, or in violation of a known legal duty Why should wilful blindness be enough for conviction? - The govt argues that it is enough under the MPC. - MPC says knowledge is practical certainty with high probability - MO rejects wilful blindness as not good enough because the legislature adopted most things regarding the meaning of knowledge from the MPC but left this out. Thus, it must have been their goal to not adopt the MPCs wilful blindness provision. o Therefore, the Court cannot read that into the definition of knowingly Amend the statute and add the wilful blindness doctrine Reduce the mens rea requirement to recklessness less of a burden The Model Penal Code Approach: Introductory Comment - Section 2.02 of the MPC: General Requirements of Culpability is probably the most influential section of the code. By state or judicial action, many states have adopted this sections systematic approach to the issue of mens rea. - Section 2.02 is significant because: o The Code consistently applies an elemental approach to the issue of mens rea. The prosecutor must prove that the D committed each material element of the charged offense with the particular state of mind required in the definition of that crime o The Code abandons the countless common law and pre-Code statutory mens rea terms and replaces them with just four culpability terms: purposely, knowingly, recklessly, and negligently. o Principles of statutory construction set out in Section 2.02 assist in resolving
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many of the mens rea issues that have plagued courts for years. ALI, Model Penal Code and Commentaries, Comment to 2.02 1. Objective. a. This section expresses the Codes basic requirement that unless some element of mental culpability is proved with respect to each material element of the offense, no valid criminal conviction may be obtained. b. Attempts to articulate the kinds of culpability that may be required for the establishment of liability and delineates four levels of culpability: purpose, knowledge, recklessness, and negligence c. Requires that one of these levels of culpability must be proved with respect to each material element of the offense, which may involve (1) the nature of the forbidden conduct, (2) the attendant circumstances, or (3) the result of conduct. d. The purpose of these distinctions is for clarity 2. Purpose and Knowledge. The code draws a narrow distinction between acting purposely and knowingly. a. Purpose: conscious goal b. Knowledge: practical certainty (can infer from circumstances) 3. Recklessness. Recklessness involves conscious risk creation. The risk of which the actor is aware must be substantial and unjustifiable for the recklessness judgment to be made. The jury must evaluate the actors conduct and determine whether it should be condemned. a. Two functions to be performed by jury: 1. Examine the risk and the factors that re relevant to how substantial it was and to the justifications for taking it. 2. Make the culpability judgment in terms of whether the Ds conscious disregard of the risk justified condemnation. (Whether the Ds disregard of the risk involve a gross deviation from the standards of conduct that a law-abiding person would have observed in the actors situation) 4. Negligence. It is distinguished from the other levels of culpability in that it does not involve a state of awareness. A person acts negligently when he inadvertently creates a substantial and unjustifiable risk of which he ought to be aware. He is liable if given the nature and degree of the risk, his failure to perceive it is, considering the nature and purpose of the actors conduct and the circumstances known to him, a gross deviation form the care that would be exercised by a reasonable person in his situation. a. The jury must find fault, and must find that it was substantial and unjustified. b. Two functions to be performed by jury: 1. Examine the risk and the factors that are relevant to its substantiability and justifiability 2. Make the culpability judgment in terms of whether the failure of the D to perceive the risk justified condemnation.

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MPC Culpability Requirement HYPOS: p. 161 1. Jacob wanted to kill Vanessa, his wife. He drove his car at a very high rate of speed into Vanessa, who was holding Xavier, their infant son, in her arms. Jacob fervently hoped that Xavier would survive the collision. The car struck Vanessa and Xavier, killing both instantly. a. With what mental state did Jacob kill Vanessa? Purposely - Explanation: Facts tell us he wanted to kill Vanessa this was his goal. b. With what mental state did Jacob kill Xavier? Knowingly - Explanation: Facts allow us to infer that he was practically certain that Xavier would die since he had to hope fervently. We are inferring his practical certainty from the circumstances because we know that when you drive an automobile in such a way to kill one person, you are practically certain to kill the person they are holding. 2. Roberta despised modern architecture. Therefore, she decided to burn down Sams modern residence. Roberta did no want Sam to die, whom she knew was inside, so she tossed salt over her left shoulder immediately before she torched the residence. Roberta was genuinely convinced that his would protect Sam from all harm. Much to her surprise, Sam was burned to death in the fire. a. With what mental state did Roberta kill Sam? Negligently - Explanation: since it was not her goal to kill Sam, you can rule out purposely. You can eliminate knowledge because she was genuinely certain that the salt would protect Sam (no practical certainty). You can rule out recklessly because not only was she practically certain that Sam would not die, Roberta was unaware of the risk of death and took precautions to protect Sam by throwing salt over shoulder. Thus, Roberta acted negligently 3. Same as 2, but assume that Roberta was not sure if the salt-over-shoulder act would protect Sam, but she was optimistic that it would. a. With what mental state did Roberta kill Sam? Recklessly - Explanation: in recklessness, you are aware of the risk but proceed anyway; in negligence, you are unaware of the risk and you proceed when a reasonable person would have been aware of the risk and not have continued. This is recklessness. 4. A fires a gun at B, intending to kill B, but instead kills C. a. With what mental state did A kill C? Recklessly 5. MPC 222.1(1) defines robbery as follows: A person is guilty of robbery if, in the course of committing a theft, he (a) inflicts serious bodily injury upon another. a. Is Toby guilty of robbery if, while committing a theft, he negligently inflicts serious bodily injury upon Ursula?

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Problems in Statutory Interpretation: Unites States v. Morris - Facts: Defendant, Morris, created and released a "worm" virus onto the Internet, which replicated and reinfected machines at a much faster rate than had been anticipated. Computers that were affected included those at military sites. o Morris argues that the govt had to prove that he intended the unauthorized access of a federal computer AND that he intended to cause a loss o Government argues that punctuation sets the accesses phrase off from the subsequent damages phrase, thereby showing that intentionally only modifies accesses - Statute: Section 1030(a)(5)(A) covers anyone who o Intention lly esses a Federal interest computer without authorization, and by means of one or more instances of such conduct alters, damages, or destroys information in any such Federal interest computer, or prevents authorized use of any such computer or information, and thereby causes loss to one or more others of a valued aggregating $1,000 or more - Issue: whether the govt must prove not only that the D intended to access a federal interest computer, but also that the D intended to prevent authorized computer use of the computers information and thereby cause loss. - Rule: Under the Computer Fraud and Abuse Act of 1986, the government need only prove that a defendant intended to access a federal interest computer, and not that a defendant intended to prevent authorized use of the computer's information and cause a loss. - Reasoning: cant figure it out from punctuation so look at legislative history to explain why intentionally was not carried over o This was a revised statute Congress knew exactly what it was doing when it removed the second intentionally. Used to have knowingly for the mens rea for each subsection. When rewritten, they put intentionally just preceding access o In other related statutes, Congress was consciously taking in and pulling out mens reas terms. They know how to put one in and take it out when they want to. o The wanted someone to be liable for the damage on a strict liability basis as long as they intentionally accessed the computer Morris is guilty Notes and Questions: United States v. Morris - This issue in this case is whether a particular mens rea term modifies some or all of the elements in the definition of an offense. Sometimes courts resolve the matter on a grammatical reading, but often they go beyond grammar and interpret a statute in a way that avoids producing a result that strikes the Court as odd or unfair - There is no doubt that Morris intentionally accessed the Federal computers or that he caused loss. We are concerned as to whether he intentionally caused loss. It must have been his goal/purpose to cause loss.. o Morris is making this argument because the evidence shows that he was trying to prevent damage: (1) made sure it wouldnt interfere with the regular use of the computer (2) made the virus die when the computer shut
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down (3) tried to solve the problem by calling in help What would the Model Penal Code 2.02(4) have said about this? Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall pply to ll the m teri l elements of the offense, unless ontr ry purpose pl inly ppe rs. - 2.02(3): If mens rea term is missing, you must prove at least a mens rea culpability that the defendant acted recklessly (default position). Negligence is too low to assign guilt for. o MPC dislikes negligence because we dont like to impute criminal liability and stigma/consequences that come with it because it is such a minimal culpable state of mind - MPC would impute culpability if it were not specified in the clause. It would say that since a mens rea term is ascribed to the first element in the provision, read it down to the other elements that do not specify what mens rea culpability is required. Thus, impute intentionally from the first provision to the second. - Counterargument: there is a distinction between the subsections. Then, the mens rea term required is recklessly. - Counterargument: a contrary purpose plainly appears o Grammatical structure shows a contrary purpose appears o Legislatures intent is evidence that it was the purpose (legislative history) - What if two mens rea terms (purposely and knowingly) appear in a statute and it is left out before one element, what do you do? o Impute recklessly o Give the D the benefit of a doubt and make the burden of the P to prove the highest standard (i.e. impute purposely)

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Strict Liability offenses: United States v. Cordoba-Hincapie - A strict liability crime requires no culpable state of mind. The defendant is absolutely liable for the result, even if there is no intent, knowledge, recklessness, or negligence on his part. - This case more narrowly discusses strict liability offenses in relation to mens rea. - Perhaps the most common exception to the mens rea principle has been in cases involving public-welfare offenses and include: (1) minor violations of traffic laws, pure food laws, the anti-narcotics laws, sanitary, building and factory laws (2) statutory rape. - Welfare-Exception doctrine came as part of a movement away from individualism and toward a new sense of the importance of collective interests. - Under these strict liability offenses, an individual will be convicted, and usually incur a light fine or penalty, no matter what their mental state at the time of the commission of the crime. - Strict liability offenses are also found in cases involving mistake-of-fact, including a defense to a charge of statutory rape where the individual charged with the offense alleges that he believed the victim to be over the age of consent. - Sayre on public-welfare offense doctrine: o If punishment of the wrongdoer far outweighs regulation of the social order as a purpose of the law in question, then mens rea is probably required o If the penalty is light, involving a relatively small fine and not including imprisonment, then mens rea probably is not required. Notes and Questions: Strict Liability Offenses, p. 181 (note 2) 184 - Criticisms of strict liability o Strict liability legislation does not deter, since an actor is unaware and would not be aware of the facts that render his conduct dangerous Response: a person may be induced to engage in activity with greater caution than would be the case if some lesser standard prevailed; deters a large class of persons from engaging in a certain activity. o It is unjust to condemn a person who is not morally culpable. - Constitutional Innocence - Is strict liability constitutional? A due process issue? o Strict liability is constitutional only when the intentional conduct covered by the statute could be made criminal by the legislature. Notes and Questions: Strict Liability Offenses, p. 190, note 1 - MPC generally rejects strict criminal liability. - Without culpability, there can be no condemnation. What is the doctrinal reason why we dont like negligence? - When you do something with a negligent culpability, we dont want to punish. - Dont want to assign that stigma.

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Mistake and Mens Rea Mistake of Fact: People v. Navarro - Facts: The Defendant was charged with stealing four wooden beams from a construction site. At trial, the Defendant requested jury instructions stating that if the Defendant believed the beams to be abandoned or that he had permission to take them, he must be acquitted, even if such belief was unreasonable. The trial court rejected the instructions and gave its own instructions stating that the good faith belief must be reasonable. o D argues that the jury was improperly instructed. - Statute: CA Penal Code 487.1 o Every person who shall feloniously steal the personal property of another is guilty of theft. - Issue: whether the D should be acquitted if there is a reasonable doubt that he had a belief that the property had been abandoned or that he had the permission of the owner to take the property or whether that belief must be a reasonable one. - Holding: Mistake of fact is a defense, as long as D relied on the mistake in good faith. - Rule: If a jury finds that a defendant had a good faith belief that he was entitled to take property, even if the belief is unreasonable by the objective standard of the reasonable person, the defendant should be acquitted because the requisite specific intent is not present. - Reasoning: o In this case, evidence was presented from which the jury could have concluded that D believed, albeit unreasonably, that the wooden beams had been abandoned. o He could have lacked the specific criminal intent required to commit theft. o Where the law requires a specific criminal intent, it is not enough to prove that a reasonable man would have had such intent. The burden of proof is that the D also entertained such an intent. Notes and Questions: People v. Navarro - The moral wrong doctrine o A reasonable mistake of fact ordinarily excludes a D prosecuted for a general intent crime. o The rule is generally that there is no exculpation for mistakes where, if the facts had been as the defendant believed them to be, his conduct would still be immoral. o Look at the world through the eyes of the defendant - The legal wrong doctrine. o Rule provides for no exculpation for mistakes where, if the facts were as the defendant thought them to be, his conduct would still be "illegal." o Often this means that a defendant possessed the mens rea for committing a lesser offense, but the actus reus was associated with a higher offense. o Under this doctrine, the defendant is guilty of the higher offense in such circumstances. - In common law cases, the differences between general and specific intent becomes relevant when asking for special instructions. Mistake of fact. - Navarro argued that his belief need not be reasonable. It only needed to be proven
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that he believed it. It is a subjective test and that should be enough to acquit him. Court says that Navarro is right and there are certain circumstances where a reasonable belief does not matter. But if it is a specific intent crime, your belief need not have been reasonable. If the crime requires a specific intent offense, your belief does not have to be reasonable. If you successfully persuade the jury that there is a possibility that those beams were abandoned, it has not been proven that you had the intent to steal. o You did not have the mens rea required for committing the offense. Navarro wanted instruction to jury about whether or not he believed the beams had been abandoned not be based on whether or not his belief is reasonable. o If he believed that the beams were abandoned and the jury believed this, Navarro did not have the mens rea necessary did not possess the mens rea necessary to satisfy the intent necessary for the conviction of the offense What is the mens rea of a general intent crime (e.g. possessing an unlicensed handgun) where the statute is silent on the mens rea term? o The presumptive mens rea for a general intent crime is recklessly. o When there is no mens rea term in the statute, the MPC imputes recklessly Mistake of fact is often called not a true defense because your mens rea has not been proven. A true defense tends to be one that kicks in when all the elements of the crime have been met affirmative defenses.

Notes and Questions: Note 6: Specific vs. General Intent Offenses, p. 156-157 These concepts have been abandoned in jurisdictions that apply the MPC. Most criminal statutes expressly include a mens rea term, or a particular state of mind is judicially implied. [A] Specific Intent (1) An offense in which a mental state is expressly set out in the definition of the crime [B] General Intent (1) No particular mental state is set out in the definition of the crime MPC has solved most of the general intent issues. There are a narrow category of instances in which it matters. Outside of that narrow category, these terms dont matter.

Helpful Rule of Thumb when distinguishing whether Specific or General Intent: - Three types of special mental elements that must be established in the definition of specific intent crimes. o To be guilty of some offenses, the State must prove an intention by the actor to commit some future act, separate from the actus reus of the offense o An offense may require proof of a special motive or purpose for committing the actus reus o Some offenses require proof of the tors w reness of n ttend nt circumstance. - If one of these special mental elements is found in the definition of an offense, the crime is characterized as special intent.
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MPC 2.02(5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely. - If you prove purposefully, thats all you need to do to satisfy. By overproving, you are showing that you are more deserving of moral blame.

1. The only difference between reckless and negligence is awareness of the risk 2. The only difference between purpose and knowledge is presence of conscious objective/goal. 3. The only difference between knowledge and recklessness is degree of practical certainty. HYPOS: A. Common law larceny: Trespassory taking and carrying away of the personal property of another with the intent to steal a. Specific Intent: special motive, future act B. Common law rape: Sexual intercourse by a male with a female not his wife, without her consent. a. Not Specific Intent: doesnt require knowledge or intent C. Intentional receipt of stole property, with knowledge that it is stole. a. Specific Intent: attendant circumstance D. Common law burglary: Breaking and entering the dwelling house of another at night with the intent to commit a felony therein a. Specific Intent: future crime, special motive or purpose HYPO: - Supreme Court had to decide whether conviction was lawful under this statute. o Knowingly transfer, possess, or use, without lawful authority, a means of identification of another person. - An illegal alien gave a false SSN but it actually belonged to another person. Given the facts as described, what issue did the Court have to address? o Whether knowingly applies to the fact that the SSN belonged to another person. o Attendant circumstance? - What would the MPC do? o 2.02(3) recklessly applies o 2.02(4) would say knowingly applies to all material elements unless a contrary purpose plainly appears. Is of another person a material element? YES MPC would say of another person would have to be

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knowing. In a mistake of fact general intent crime, you may have to use both MPC and common-law approach. You swung your arm and hit student, causing physical injury. Actus reus is there. The question is whether you have the necessary mens rea. - Common law: if you didnt know student was standing there when you swung arm and hit her you would be raising a mistake of fact defense. Was it reasonable for you not to have known whether the student was standing there? Must ask whether you looked first, how often does it occur, etc. - MPC: impute recklessness standard consciously disregarded. Ask exactly the same questions.

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Mistake and Mens Rea Mistake (or Ignorance) of Law: People v. Marrero - Facts: Marrero was a guard at a federal prison in CT. He was arrested in NY for possessing an unlicensed gun. Under NY Penal Law, peace officers were exempt from criminal liability under the firearm possession statute. Marrero mistakenly believed that he qualified as a peace officer. - Issue: Is a mistake in the interpretation of a law a defense to criminal liability? - Holding: No.A misreading or misunderstanding of the criminal offense is generally not a defense to criminal charges. - Reasoning: Here, the firearms possession statute is a strict liability offense, meaning that an accused is guilty of the offense if he possesses a weapon regardless of his intent to do so. o Public policy requires this decision. We need to encourage knowledge of statutes, not ignorance. o This rule will result in occasional unfair outcomes, but the larger societal interest in promoting knowledge of law outweighs the injustice. o D was merely ignorant of the law, and that is not an excuse. o Mistake of law might be effective in fighting mens rea requirements, but not possession. - Rule: In general, a mistaken belief as to the meaning of a criminal statute (even a good faith or reasonable one) is NOT a defense to a violation of the statute. "Ignorance of the law is no excuse." What did Marrero do? o Marrero, a prison guard in CT, had an unlicensed handgun in a NY nightclub. Why did he do it? o He thought he was exempted as a peace officer from the NY statute. o There are 2 NY statutes at issue here: Cant have an unlicensed handguns Peace officers are exempt any penal correctional institution guards are covered. Why didnt it work? o Wants to be exempt from liability because he reasonably relied on an official statement of the law contained in a statute that was misguided/erroneous. o He loses because the statute that you relied upon must sanction taking unlicensed guns into NY nightclubs. It did not say that. He was relying on his own interpretation of the statute. Statute meant to apply to NY peace officers Why shouldnt he get the benefit of the statute? Why shouldnt he get a reasonable mistake of law defense? o CT peace officers were not protected by the statute

Dissents Argument in Marrero - How can we punish someone who made a good-faith effort to know and abide by the law? o Under the view that the criminal justice system punishes blameworthiness,
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one who does not intend to break the law should not be punished. Society has no need to exact retribution on someone who accidentally breaks the law, nor does a man not intending to break the law need to be deterred from future unlawful conduct. Majority said that Marrero would have been given the defense if the statute applied to CT. o That contradicts the MPC which is meant to cover mistakes just as Marrero. He relied on a statute that was ambiguous and which he interpreted wrong. What are the majoritys justifications for punishing him? Why cant we allow him this defense? Generally, why is mistake of law not a defense? o We want the public to read and rely upon official statements of law and not their own interpretations. o We want uniformity and consistency in our criminal law.

MPC 2.04: Ignorance or Mistake: Reasonable reliance on (1) Official statement of law (2) Afterwards determined to be invalid (3) Contained in a statute/judicial decision/administrative order OR official interpretation of public officer or body charged with interpretation/administration/enforcement of the law in question
Notes and Questions: People v. Marrero - The NY Court of Appeals reason for denying a mistake of law defense was the Holmesian utility of knowledge principle. o The point of punishing the legally mistaken is to encourage the societal benefit of individuals knowledge of and respect for the law. - Were Marrero to be afforded a defense, mistakes about the law would be encouraged. o Resoponse: Marrero hadnt deliberately shielded himself from legal knowledge; he had attempted to ferret it out, displaying exactly the type of dedication to legal learning that the utility of knowledge purports to value. - Marrero sought to present a reasonable mistake of law defense. o He did not claim that he was unaware of the firearm possession statute at issue. Rather, he claimed to have been mistaken as to its meaning. MPC inserts recklessness if mens rea term is missing Common-law approach: mistake of fact can be a defense to a general intent crime if it was a reasonable mistake (compare with MPC) o Determine whether it was a general or specific intent crime o If general intent crime, must determine whether mistake was reasonable A reasonable mistake of law is not a defense for a general intent crime o POLICY: we do want people acting reasonably so if you made a mistake of fact, the theory is that we want to keep going in our daily lives. However, when you make a mistake of law (go to the effort of researching the law), we want to encourage uniformity of law. Everyone could put forth a reading of the law that seems reasonable, so we want to discourage subjective
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interpretations. We want to encourage official interpretations. Mistake of Law: Cheek v. United States - Cheek didnt pay taxes because: o Attended meetings that said tax system was unconstitutional o Informed from classes that even if the tax system was constitutional, wages are not income for purposes of the federal tax laws - specific misguidance on a point of law - Cheek is charged with willfully attempting to evade or defeat any tax imposed by the titled. o 2.08: The definition of willfully is defined as a voluntary, intentional violation of a known legal duty i.e. to intentionally do/not do something with knowledge that you were/were not supposed to - The Court said he should have gotten a mistake of law instruction only on the misunderstanding that the didnt know his wages were taxable income: o If Cheek believed his wages were not income and a jury agrees this a reasonable belief, he didnt know he was supposed to pay taxes on wages. He would not be guilty of this particular crime without the fact that it was a known legal duty Jury should have been given a mistake of law instruction. His mistake negates mens rea. If he believed his wages were taxable, he didnt have the mens rea necessary for the commission of the offense. - Cheek doesnt get a jury instruction for mistake of law even if you believe that he thought the tax system was unconstitutional because it was a disagreement of the law. You cant violate laws that you understand fully well but disagree with. He knew very well that he had to pay taxes, just didnt agree with the system. o The appropriate response if you disagree with a law is to talk to Legislature, voting, or lobbying Congress. Difference between Marrero and Cheek - What would you have to add to the statute in Marrero in order for Marrero to get the same benefit of mistake of law defense as Cheek? o Add willfully to the statute and he is excused - How do we make Cheek not get the benefit of the mistake of law defense? o Take out the word willfully o Impute reckless he knew there was a possibility from prior decision REVIEW: Mistake of Law Exceptions (Common Law & MPC) 1. Mistake negates mens rea (common-law: of specific intent crime) Cheek v. U.S. (mens rea term necessary was knowingly) - Common law: of specific-intent crime only: no reasonable mistake of law allowance for general-intent crime, unlike mistake of fact 2. Fair Notice Lambert v. CA (p. 204-205) - LA passes an ordinance that a convicted person must register. She did not know of the ordinance and did not register. o Omission; Status ; No reasonable likelihood of learning of laws (notice)
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3. Reasonable Reliance People v. Marrero (mens rea necessary was reckless) TOPIC: CAUSATION Causation can be established in three different ways: o Actual cause of the victims death but-for causation (you alone, sufficient) o Substantial factor test two Ds acting independently and each of those two acts could have independently caused the victims death. They are both actual causes because each one could have done it and the law cannot figure out which one did in fact cause it. (two, either sufficient) o But for causation (separate acts that happen at the same time) - both injuries together were necessary for the victim to die (two, neither sufficient on its own)

Actual Cause (Cause-in-Fact): Velazquez v. State - Vehicular homicide is no different than any other criminal offense in which the occurrence of a specified result, caused by a Ds conduct, is an essential element of the offense. - Clearly there can be no criminal liability for such result-type offenses unless it can be shown that the Ds conduct was a cause-in-fact of the prohibited result - But for test used b Courts in determining whether the Ds conduct was a cause-infact of a prohibited consequence in result-types offenses. o Under this test, a Ds conduct is a cause-in-fact of the prohibited result if the said result would not have occurred but for the Ds conduct o The Ds conduct is a cause-in-fact of a particular result if the result would not have happened in the absence of the Ds conduct - Substantial factor test used in rare cases in place of the but for test. o Under this test, the Ds conduct is a cause-in-fact of a prohibited result if the subject conduct was a substantial factor in bringing about the said result. o Used when two Ds, acting independently and not in concert with one another, commit two separate acts, each of which alone is sufficient to bring about the prohibited result Ex: two Ds concurrently inflict mortal wounds upon a human being, each of which is sufficient to cause death. Each Ds action was not a but for cause of death because the deceased would have died even in the absence of the each Ds conduct although obviously not in the absence of both Ds conduct considered together. Thus, each Ds conduct is independently and concurrently inflicting mortal wounds on a deceased clearly constitutes a substantial factor in bringing about the deceaseds death, and, consequently, is a cause-in-fact of the deceaseds death.

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Actual Cause (Cause-in-Fact): Oxendine v. State Facts: - Defendants girlfriend, Tyree, pushed the 6 year old victim in the bathtub causing microscopic tears in his intestines, causing stomach pains. The next morning, the Defendant went into the victims bedroom and began shouting at him to get up and beating him. The victims abdomen became swollen. The victim stopped breathing en route and was pronounced dead shortly after arriving at the hospital. Medical doctors who testified were unable to say beyond a reasonable doubt of medical certainty which of the two abdominal injuries caused the death of the child. - Neither of the states expert witnesses could decipher which of the injuries caused the death. We dont know if fathers beating was necessary to cause the death. Girlfriends beating is the cause of death according to expert #2. o State takes the acceleration approach theory says that even if there is a preexisting injury that will cause death and you come along and make the victim die sooner, you are just as much as an actual cause as the original injurer Procedural Posture: - Trial Court gave acceleration instruction to jury: a D who causes the death of another is not relieved of responsibility for causing the death if another later injury accelerates the death of the other person. o A jury convicted both the Defendant and Tyree of manslaughter. - Defendant appeals arguing that the medical testimony was insufficient to find that he is guilty. Issue: - But for the Ds infliction of the second injury, would the victim have died when he died? Holding: - No. Oxedines conviction of manslaughter must be set aside for insufficiency of the evidence to establish that his conduct accelerated Jeffreys death. - To be liable for the death of another, ones conduct must cause death. In the case of two injuries, if a later nonlethal injury accelerates death, then the actor is liable for the death. However, where the injury merely adds to the victims pain without accelerating the death, the actor did not cause death. Reasoning: - Here, the evidence shows that the defendant did not inflict a lethal injury. Neither of the expert medical witnesses of the prosecution could state with any degree of medical certainty that the injury inflicted by the defendant contributed to the death of the child. Hence, the Defendant cannot be guilty of manslaughter. Rule: - Contribution to or aggravation of death without acceleration of death is insufficient to establish the causation of death required for a conviction of manslaughter. - Where two injuries have been inflicted, the latter injury causes death only if it accelerates death.

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**None of the govt evidence gave us enough to support an acceleration theory. This is why the Supreme Court had to reverse. The motion for acquittal should have been granted** Notes and Questions: Oxedine v. State - Who is the actual cause of Vs death in the following hypos? How would they be resolved under MPC 2.03(1)? a. X intentionally stabs V in the chest. V will die from loss of blood in 15 minutes. Simultaneously, D intentionally shoots V in the leg. V would not die from this wound by itself. V dies in 10 minutes. - Acceleration theory for D Xs stabbing would have been sufficient to kill on its own but D would not. - But-for cause for X b. The same as A., except that D unintentionally shoots V. - Unintentionally or not, it does not matter. He is an actual cause under the acceleration theory. c. The same as A., except that V dies in 15 minutes. - D does not accelerate the death so he is not the cause of the death for actual causation purposes. d. X stabs V. Simultaneously, D stabs V. Neither wound by itself would kill V. V dies from loss of blood from the two wounds - Neither would have caused the death on its own both were necessary. This is the second type of but-for causation e. X shoots V in the heart. Simultaneously, D shoots V in the head. V would die instantly from either wound. V dies instantly. - Substantial factor test simultaneous injury both could have caused death MPC Revision Not causation issues, but foreseeability issues. Proximate cause falls into whether you should have been aware that someone died in other words, proximate cause is a fancy doctrine when you have mens rea were you reckless? HYPO: D1 stabs victim to kill her. Victim is staggering down the block and D2 intending to kill or speed up her death, pushes her and she dies sooner. The push alone could not have killed her but it sped up her death. - D1 and D2 are both the actual cause of the victims death - D1 and D2 both have the mens rea for the crime HYPO: D1 stabs victim to kill her. Victim is staggering down the block and D2 intending to bother the victim pushes her (without any intention to kill her). The push alone could not have killed her but it sped up her death. - D2 is one of the actual causes of the victims death - acceleration theory - Actus reus is there - Mens rea for the death HYPO: D1 stabs victim to kill her. Victim is staggering down the block and D2 gets shoved and accidentally pushes the victim. The push alone could not have killed her but it sped up her death.
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- D2 is one of the actual causes of the victims death - acceleration theory - Actus reus fails because it is arguably not a voluntary act Proximate Cause (Legal Cause): Introductory Comment - Comes into play when there is a result that neither party was anticipating o In all of the above examples, D1 is the proximate cause of the victims death - The but for test is too imprecise a standard for determining causal accountability for harm because it fails to exclude remote candidates for legal responsibility. - The doctrine of proximate or legal causation serves the purpose of determining who or what events among those that satisfy the but-for standard should be held accountable for the resulting harm. o Thus, it should be noticed, a person or event cannot be a proximate cause of harm unless he or it is an actual cause, but a person or event can be an actual cause without being a proximate cause. - Issues of proximate causation generally arise when an intervening force exists when some but-for causal agent comes into play after the defendants voluntary act or omission and before the social harm occurs. o Typically, an intervening cause will be: An act of god An act of an independent third party, which accelerates or aggravates the harm caused by the D, or which causes it to occur in an unexpected manner An act or omission of the victim that assists in bring about the outcome - Proximate causation is an effort by the fact-finder to determine, based on policy considerations or matters of fairness, whether it is proper to hold the D criminally responsible for a prohibited result. Proximate Cause: Kibbe v. Henderson - Facts: two men take a drunk man from a bar and tell him that they will take him home. They rob him and take off his clothes and leave him on the side of the road. He stumbles into the road and is hit by a third person driving. - Issue: was it foreseeable (likely) enough that the victim would die as a result of the two mens acts that we can find them guilty? - Holding: Yes, they are the proximate cause of the victims death and they have to be held responsible for the death because it really boils down to a question of mens rea (Goal? Practically certain result? Negligent?). - MPC says you dont need the common law category of proximate clause. Proximate clause is a fancy term for mens rea.

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TOPIC: HOMICIDE A. OVERVIEW Malice Aforethought ( = Murder) - At common law, murder was defined as the unlawful killing of another human being with malice of aforethought. - With what mens rea did you kill? At common law, if you kill with one of these four morally blameworthy realities, you are considered a murder. o Intent to kill = M2 Awareness that the death of another would result from ones actions, even if the actor had no particular desire to achieve such a consequence o (Intent to Kill + premeditation & deliberation = M1) o Intent to cause grievous bodily harm = M2 Knowledge that conduct would cause serious bodily injury o Depraved heart = M2 Recklessness o Felony murder = M1 Accidental homicide but because you did it in the course of a felony, you are bad enough to be considered a first-degree murderer But, if your state of mind was less blameworthy than killing with a depraved heart or with the intent to cause grievous bodily harm, why should it be a first-degree murder? - The thrust of the reform to divide murder into degrees was to confine the death penalty, which was then mandatory on conviction of any common-law murder, to homicides judged particularly heinous. o The reason for having degrees of murder is about sentencing and the stigma you get. Manslaughter - Manslaughter is less morally blameworthy - Murder is more morally blameworthy Today - According to our legislatures assessment of the moral blameworthiness of the act, the defendant will be charged with M1, M2, or manslaughter - Statutes provide a grading differential between voluntary and involuntary manslaughter

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B. INTENTIONAL KILLINGS 1. Degrees of Murder: The Deliberation-Premeditation Formula: State v. Guthrie - Facts: a dishwasher, with a history of psychological problems, snaps on a fellow dishwasher who was joking with him and stabbed him in the throat. - Issue: Was the jury properly told what constitutes first-degree murder or was the instruction improper? - Premeditation is defined to mean any time before the killing or at the time of killing. - The Appellate Court feels that the instructions given were not the best. o The new instructions required the jury to find some period of time that precedes the act of killing to some degree but that degree is to be left to the jury. You must find a moment where the defendant consciously decided to kill before he actually killed. What are the practical considerations for needing this? The person who had a moment where you brain went somewhere that is the worst of the worst in society and that will determine the severity of punishment. We want to make sure that they are morally blameworthy. You had the opportunity to choose not to kill. It is less bad to kill in the heat of the moment without thought than to kill with thought. Midgett v. State - Facts: Midgett killed his son. But there was no evidence that he made the decision to kill his son. On appeal, his first-degree murder conviction is reversed. - Dissent: this is murder, how dare you reverse this conviction? - However, because of this bad law, child abuse was not covered. State v. Forrest - Facts: Forrests father was terminally ill. Distraught and refusing to let his father suffer, he shot him 4 times (mercy killing) - There were enough factors (evidence) that show that this murder was premeditated. Thus, the first-degree murder charge could stand. Recap of Intentional Killings - This is all remedied ad-hoc by the legislature or by sentencing. The executive branch can pardon completely or commute the sentence (shorten sentence). - In all three questions was whether there was premeditation and deliberation. In other words, was the proof sufficient to bring them up from an intent to kill to an intent to kill with premeditation and deliberation. o Remanded in Guthrie because improper jury instructions o Insufficient evidence in Midgett o Plenty of evidence to prove premeditation and deliberation in Forrest - Premeditate (def): to premeditate you have to think about killing beforehand (at some point before the killing could be a second, six months, a year, etc.) The
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intent to kill must arise before the action that causes the death. Deliberate (def): deliberate means to consider the action and measure weigh and evaluate the options Shorthand way of finding P&D: a thought process that is undisturbed by hot blood. The jury doesnt see anything that could mitigate the killing. Typically, the nature and number of wounds help to develop the intent. The court uses these facts to their discretion o There is a suggestion that a single wound shows P&D o In contrast, numerous wounds shows P&D (to fire a gun, you are required to cock the gun each time)

2. Manslaughter: Heat of Passion Killings Common Law Principles: Girouard v. State - Facts: D and victim were married and on the night of the killing, the victim was berating the D. Before stabbing her, the D paused and asked the victim whether or not she was kidding (evidence of P&D). She said she was not. He stabbed her 19 times. D wanted his instructions mitigated from second-degree murder to voluntary manslaughter. o There is no doubt that he developed an intent to kill prior to the killing - Issue: was this a thought process that was undisturbed by hot blood?; was there adequate provocation to reduce to voluntary manslaughter - Holding: - What constitutes an intent to kill? o Acting purposely or knowingly Purpose: conscious objective to kill state of mind Knowledge: Practically certain death would result - Why did the appellate court find that the trial court was correct in not giving Girouard the adequate provocation instruction? o Words alone were never permitted to constitute provocation in commonlaw Why arent words considered something that could inflame the passion in the D? It will open up a can of worms every marital dispute will turn into a killing. - Rather, the common law developed a strict list of things that entitled you to the adequate provocation instruction if the jury finds sufficient evidence. You need some kind of physically provocative act to be entitled to such an instruction. o Extreme assault or batter upon the D o Mutual combat o Ds illegal arrest o Injury or serious abuse of a close relative of the Ds o Sudden discovery of a spouses adultery - Why do we have these 5 categories where you lose self-control and your free will? o Your explanation for the killing has something to do with your state of mind. It was enough of your disturbance of your emotions that they jury may get why you did it.
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Recap of Intentional Killings - Murder is distinguished from manslaughter at common-law and in statutes is the presence or absence or malice. - For purposes of the homicide discussion and statutes, malice is killing with one of the following four things: o Intent to kill = M2 ( + premeditation & deliberation = M1) o Intent to cause grievous bodily harm = M2 o Depraved heart = M2 o Felony murder = M1/2 - If any of the above four are absent, you are in the manslaughter category - Intentional Killings o Intent to kill + P & D = M1 o Intent to kill = M2 Without premeditation and deliberation Without adequate provocation (Maybe some hot blood) o Intent to kill + Adequate Provocation = VM In this case, there is malice so how can we call it voluntary manslaughter? Adequate Provocation mitigates (cancels out/excuses) the malice. It is a way of saying that you had malice and you committed what we could presumptively call a murder but for some reason it is excused. - What are the elements of the adequate provocation doctrine? (p. 262) o There must have been adequate provocation o Killing must have been in the heat of passion o No cooling off o There must have been a causal connection between the provocation, the passion, and the fatal act - A simpler version of the elements necessary for the adequate provocation doctrine comes down to 2 things: There must have been adequate provocation (legally adequate enough to get to the jury and for the jury to find it good enough) Was it reasonable for you to be so provoked? No cooling off time (which means you killed in the heat of the provocation and did not have sufficient time to cool off) this is entirely a factual question Was it reasonable for you to not have cooled off by the time you committed the murder? o Both of the above elements are being assessed against a reasonableness standard. Would a reasonable person have lost control in the same way under the same circumstances? Would a reasonable person been so
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inflamed as to commit the murder? Is it within the societal scope of reasonableness? We are not excusing the killing; we are excusing the state of mind. What should be considered in the category of a reasonable person? Race, age, religion, national origin? o Green v. Regina (p. 279): father sexually abused sisters so D is extra sensitive to sexual matters. Should the jury be allowed to consider this as part of the reasonableness inquiry? This D was subject to unique circumstances that should be considered by the jury as part of the reasonableness inquiry. It should not be allowed - Opens the door to socially undesirable things e.g. racism. Even if we wanted to allow it, there is no line to stop it slippery slope argument.

Model Penal Code and Beyond: People v. Casassa - Facts: D casually dated the victim for a couple of months before she broke up with him. D became obsessed with her after the breakup. Went to her door one evening, she denied him, he killed her. This is a case of unrequited love. o Expert testimony: he had intimacy issues and was emotionally disturbed - Issue: did the trial judge err in not finding that the D fit the adequate provision defense; did the Judge not judge the reasonableness of Cassassas emotional disturbance from Cassassas viewpoint? - Holding: Judge, applying the MPCs, adequate provocation did not buy the Ds defense. His explanation was unreasonable. - Under MPC Section 210.3, you are entitled to be dropped from murder to manslaughter if you can prove: o D acted under the influence of extreme emotional disturbance o Reasonable explanation/excuse for your emotional disturbance Viewed from a subjective definition of reasonableness Two Differences between AP and MPC Approach: 1. The common-law approach is reluctant to send things to the jury unless it fits one of those five categories that constitute adequate provocation. However, the MPC does not require one of the 5 categories that were permissible at common-law to constitute adequate provocation and everything goes to the jury. a. Only extreme mental or emotional disturbance (EED) - Provocation is not there disturbance broadens the category. b. To get the MPCs adequate provocation doctrine, nobody has to have done anything. Your disturbance can be from somewhere else bad day, born with it, etc. You dont need anything that comes close to provocation or the victim to do anything. Often used in cases of mental illness. 2. The MPC opens the door to all of your personal characteristics and allows the jury to decide if it is reasonable (objective). BUT not reasonable as to the D, but reasonable as to the jury (subjective). Even if it makes sense to the D under his circumstances, as he perceived them to be, the jury can say that the disturbance is so peculiar as to
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not mitigate the AP there is no reasonable excuse for the Ds loss of self-control. C. UNINTENTIONAL KILLINGS 1. Unjustified Risk-Taking Berry v. Superior Court (facts) Facts: James Soto, a 2 year old, was mauled and killed by a pit bull dog named Willy owned by the D, Berry. The dog was tethered near the Ds house but no obstacle prevented access to the dogs area (one-sided fence). No evidence that dog had ever attacked before, but there was evidence that he was bred and trained to be a fighting dog and that he posed a known threat to people. - Evidence: dog fighting publications, pamphlet on how to train dog, treadmill to condition dog, correspondence with breeder, photos, and a break stick - Berry says the facts set forth are insufficient for a charge of depraved heart and should not go to the jury. Issue: whether Berry acted with an abandoned and malignant heart. Analysis: CA Court laid out three elements/prongs necessary for evidence to go to jury on a charge of depraved heart homicide: 1. High probability of death 2. Base antisocial motive 3. Wanton disregard for life (know probability of death, but continue anyway) People v. Nieto Benitez (law) Analysis: - Second-degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements of willfulness, premeditation, and deliberation, which would support a conviction of first-degree murder. - Manslaughter is the unlawful killing of a human being without malice. o Express Malice: there is manifested a deliberate intention unlawfully to take away the life of a fellow created o Implied Malice: no considerable provocation appears, or when the circumstances show an abandoned and malignant heart - Jury instructions that relied on the term abandoned and malignant heart invites confusion and unguided speculation because it can lead the jury to equate the malignant heart with an evil disposition or a despicable character and convict based on that alone. - Two strands developed: o Malice could be implied where the D for a base, antisocial motive and with wanton disregard for human life does an act that involves a high degree of probability that it will result in death o Malice could be implied where the killing was proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows his conduct endangers the life of another and who acts with conscious disregard for life. - Thus, second-degree murder with implied malice has been committed when a person does an act, the natural consequences of which are dangerous to life, which
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act was deliberated performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. Notes and Questions: Berry and Nieto - MPC does not describe murder in the common laws colorful terms, but rather in terms of recklessness o Ordinary recklessness is made sufficient for a conviction of manslaughter under 210.3(1)(a). o In a prosecution for murder, MPC requires further judgment as to whether the actors conscious disregard of the risk, under the circumstances, manifests extreme indifference to the value of human life. - At common law, a person acts with malice aforethought and, therefore, is guilty of murder if, with the intent to cause grievous bodily injury, she accidentally kills another. MPC Section 210.2: MPC deals with all the common-law categories of malice. Why does the MPC not include the intent to grievously injure category? It is, all of the malice categories are present (except collapsed into three). - Depraved heart: o Extreme recklessness as to possibility of death o Usually, recklessness is about some random thing - P & D went out in the MPC replaced with purposely or knowingly - Felony-Murder - MPC folds intent to grievously injure into depraved heart because it is suggesting that the relationship between the two both show indifference to human life you did something that carried a high probability of death, you were aware of the risk, and you did it anyway. - Apply the MPC approach when the state has adopted it - If the problem does not specify which way to use, then your job would be two explain both ways the court may go about it - If told to apply the MPC to a semi-adultery situation you should mention: extreme emotional disturbance and the reasonableness. You should not discuss cooling off or provocation or inflame the heat of passion. o In common-law analysis you would see if D had an intent to kill; define was intent it; see if there was P & D to see if is murder-1; if not, move down to murder-2; State v. Hernandez (Awareness of a risk vs. Unawareness of a risk) Facts: Victim Barrymore was killed when the defendant Hernandezs car crossed into the wrong lane of travel and collided with the car the victim was in. D told someone on scene that he had been drinking. Evidence: stickers, pinks and signs with drinking slogans that suggest knowledge that drinking distorts perception. Charged with criminally negligent homicide. D argues the trial court erred in admitting the evidence b/c it was irrelevant to the criminal charges against him. - State argues that the drinking slogans are relevant because the remarks show that the D knew that drinking large amounts of alcohol could distort his sense of reality and his driving skills. Also, that these slogans show D approved of excessive drinking, thereby

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making him a person of poor character. o Court rejected both of these arguments: neither of these things was at issue. Procedural Posture: jury found Hernandez guilty of involuntary manslaughter Issue: whether evidence of drinking slogans logically tended to support or establish one or both of the elements necessary for a conviction of voluntary manslaughter Holding: the trial court erred in admitting evidence of the drinking slogans. Analysis: - In order for evidence to be relevant, it must logically tend to support or establish a fact or issue between the parties. - Elements of the offense of voluntary manslaughter that were requires to be proven were: o That the D acted with criminal negligence; AND o That, in so doing, D caused Barrymores death - The stickers do not relate to the elements of the crime. They show they are aware of how alcohol affects him, but not that those risks would result in death. Dissent: The jury should have been permitted to consider the Ds knowledge of how the consumption of alcohol might affect his perceptions thereby causing him not to perceive the risk. MPC approach requires: - The jury to first determine that the D created a substantial and unjustifiable risk of which he ought to have been aware. - The jury to decide whether the failure of the D to perceive the risk is a gross deviation from the reasonable person of care and whether such failure of perception justifies condemnation. State v. Williams (What kind of negligence suffices for liability?) Facts: Ds, husband and wife, were charged with manslaughter for failing to supply their 17month child with necessary medical attention, which inevitably caused his death. Native American parents were afraid to take child to hospital because they thought social services would take him away. Child had a toothache that developed into an infection gangrenous unable to eat malnutrition weakened resistance pneumonia death. - Ds argue that the evidence does not support a verdict for manslaughter. Although they admit they were negligent, they werent grossly negligent, which is required for criminal negligence (MPC). - For criminal homicide, you need find gross negligence (MPC). However, WA did not codify a grossly negligence standard from the MPC. All that had to prove was ordinarily negligent for negligent homicicde. - This actus reus was an omission, not an act failure to provide care (unintentional) Procedural Posture: court concluded that the Ds were guilty of manslaughter b/c they were negligent in not treatment and as a proximate result of this negligence, the son died. - Causation: baby could have survived if the baby had been taken and treated Issue: Whether the Ds were guilty of manslaughter; whether the mens rea necessary for manslaughter is present. Holding: Yes. The Ds were ordinarily negligent. The defendants were given many warning signs but failed to take child to doctor; judgment affirmed. Analysis: What the Ds knew: ill not eating, fussy, crying, swollen/bluish cheek, odor Rule: When the statutory standard of negligence is "ordinary or simple," parents are negligent when they fail to "measure up to the conduct required for a man of reasonable prudence ... If

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such negligence proximately causes the death of the victim, the defendant ... is guilty of statutory manslaughter." How can you move down the cylinder for unintentional murder? Intent to grievously injure Deprave heart Felony-murder Non-Malice ----------------------------------------------- Malice Reckless homicide Negligent homicide HYPO: in a bad mood, I drive my car at a high rate of speed and end up killing two pedestrians. - You can immediately rule out intent to grievously injure. - You can cross off felony-murder because its only for a limited number of circumstances - It turns on the reasonableness of behavior/how unreasonable behavior was o Awareness of Risk/Unawareness of Risk likelihood of risk that someone would die o Depraved Heart Reckless Homicide Negligent Homicide - Degree of risk is what it turns on/distinguishes the categories

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2. Unlawful Conduct The Felony-Murder Rule Introduction - One is guilty of murder if a death results from conduct during the commission or attempted commission of any felony. - In modern times, legislatures have created a wide range of statutory felonies. Many of these crimes concern relatively minor misconduct not inherently dangerous to life and carry maximum penalties far less severe than those authorized by murder. o Thus, there is a demand for the limitation of the felony-murder rule. - At common law, the result was essentially the same (death) for all felonies. Today all types of things can fall into the category of a felony and that are not of the same magnitude as rape, robbery, kidnapping. The Felony-Murder Rule: People v. Fuller Facts: Police Officer noticed suspicious activity in a car lot - there was an older model Plymouth parked in front of the lot and D (and accomplice) was rolling two toward the vehicle. D sped off and Officer gave chase. As a result, a high-speed crash ensued and ended with the Ds car running through a red light, sticking another vehicle that had entered the intersection, killing that cars driver. Later investigation revealed that four locked Dodge vans at the lot had been forcibly entered and their spare tires were removed. Fingerprints from both of the Respondents were found on the jacks in some of the vehicles. Issue: whether the D, who committed a nonviolent daytime burglary, is accountable under CAs Felony murder rule. Holding: Yes, because of precedent. Analysis: - Penal Code statute imposes strict liability for deaths committed in the course of one of the enumerated felonies whether the killing was caused intentionally, negligently, or merely accidentally. o Burglary falls expressly within the purview of CAs first-degree felonymurder rule. - However, Court stated that if they were working from a clean slate they would not have applied the rule because the automobile burglary itself was not dangerous to human life. - The facts of the case lead to felony-murder liability because it falls into the category of burglary, which is listed in the statute as a felony. o Under the statute, what makes this a burglary? The door was locked. - Court realizes this is a bad outcome but its just following the statute that the legislature enacted

Res Gestae HYPO: An airplane pilot was flying a plane loaded with marijuana and the plane crashes. The death was not committed during the furtherance of the felony. You might get him on reckless/negligent homicide.
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The Policy Debate - Despite widespread criticism, the felony-murder rule persists in the vast majority of states. o Most states have attempted to limit the rules potential harshness by either limiting the scope of its operation or by providing affirmative defenses. - Rationale for having the felony-murder rule: o Deterrence: Felony-murder rule is a doctrine intended to deter negligence and accidental killings during the commission of felonies. Co-felons will dissuade each other from the use of violence, as they may be liable for murder. CRITICISM: o How can you deter an unintended act? o Few felons know that the felony-murder rule imposes strict liability for resulting deaths or will believe that harm will result from the commission of a felony Deterrent to dangerous felonies (does not focus on the killing, but on the felony itself) CRITICISM: o There is doubt that serious crimes can be deterred by the weight of their punishment o Felon does not always know of this rule - Transferred Intent an Constructive Malice: The Felony-Murder Rules Presumption of Culpability o This theory posits that the intent to commit the felony is transferred to the act of killing in order to find culpability for the homicide State does not have the burden of proving premeditation or malice - Retribution and General Culpability: A Strict-Liability View of the Felony-Murder Rule o Rule does not require a separate mens rea element for the homicide because conviction for murder is justified on the notion that the D committed a felony and a killing occurred. Justifications: Deterrence of the underlying felony The felon has exhibited an evil mind and this justified severe punishment

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In Defense of the Felony-Murder Doctrine - Classical theory divides the elements of crimes into 2 categories: mens rea and actus rea o Mens rea, or guilty mind, is the mental state required to complete the offense o Actus reus may be translated literally as the wrongful act, but it is better understood as referring to all of the physical elements of crime, including the Ds actions, the surrounding circumstances, and the consequences. - Felony-murder reflects a societal judgment that an intentionally committed robbery that causes the death of a human being is qualitatively more serious than an identical robbery that does not - Condemnation: Reaffirming the Sanctity of Human Life o A purpose of sentencing closely related to proportionality is that of condemnation. Condemnation embodies the notion of reinforcement of societal norms/values as a guide to the conduct of upright persons. The felony murder rule serves this purpose by distinguishing crimes that cause human deaths, thus reinforcing the reverence for human life. o Condemnation is the expression of solidarity with the victims of crime Felony murder is a useful doctrine because it reaffirms to the surviving family of a felony-homicide victim the kinship the society as a whole feels with him by denouncing in the strongest language of the law the intentional crime that produced the death. o Another facet of condemnation is atonement provides a means for the D to repay debt to society. The felony-murder rule makes such repayment possible. - Deterrence o Scholars tend to dismiss the deterrence rational for having a felony-murder rule based on several arguments: improbability that felons will know the law, the unlikelihood that a criminal who has formed the intent to commit a felony will refrain from acts likely to cause death. Or the small number of felony-homicides. o Response: There is evidence that serious crime is subject to deterrence if consequences are adequately communicated. The felony murder rule can deter in this way. The general population, including felons, is aware of the felony murder doctrine more than other criminal concepts because of TV - Felony-murder rule aids in the optimal allocation of criminal justice resources

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Limitations on the Felony-Murder Rule: Overview - The classic felony murder rule held that a death caused during the commission of any felony constitutes murder - While the breadth of the doctrine varies from jurisdiction to jurisdiction, a number of restrictions limit most modern incarcerations of felony-murder - An unlimited felony murder rule could make us confront a number of unsettling outcomes in individual cases o Individuals engaged in felonies that are neither risky nor inherently immoral could be convicted of murder for consequential killings Unfairness between fault and the punishment imposed - The inherently dangerous felony limitation solves the problem that the CA court saw earlier where every accidental homicide that results form a felony being ratcheted up to murder-one. - The merger limitation Three Limitations on the Felony-Murder Rule 1. Res gestate (in the perpetration of) 2. Inherently dangerous felony (arson, burglary) - In particular case? OR - In the abstract/all cases/ necessarily 3. Merger Rule: if it involves conduct that, if taken to the extreme, leads to homicide, you dont have an independent felony-murder (assault) - Lesser-included offense of homicide (assaultive conduct) - Evidence necessarily includes - Independent/collateral felonious purpose California Penal Code o Where did the Supreme Court of CA get the idea that a felony that is unenumerated but still inherently dangerous could still qualify as M2 liability? - From the phrase all other kinds of murder - When the prosecution is trying to charge something that is not enumerated but that was a felony at common law, - If you commit a homicide accidentally in the course of an inherently dangerous felony that is not enumerated, M2

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The Inherently Dangerous Felony Limitation: People v. Howard Facts: D was driving a stolen vehicle when he was signaled to pull over by a police officer. D pulled over then took off. D drove without headlights at a rate much greater than the speed limits in trying to flee. D ran stop signs and red lights. The police officer decided that the pursuit was too dangerous and backed off. About a minute after the pursuit was discontinued, D hit Rodriguez's car and killed her. - D was charged with second-degree felony murder since the homicide was the direct causal result of the commission of a felony inherently dangerous to human life. Procedural Posture: Trial court found D guilty; CA COA affirmed, D guilty; CA Supreme Court reversed, remanded. Issues: In states with the inherently dangerous felony limitation on felony murder, how should a court decide if a felony is inherently dangerous? Holding/Rule: In determining whether a felony is inherently dangerous, a court should look of the elements of the felony in the abstract (not with the particular facts of the case) to determine whether the felony by its very nature cannot be committed without creating a substantial risk that someone will be killed. Reasoning: - The second degree felony-murder rule is a court-made rule in CA, not a statute. Its constitutionality has been questioned, so it makes sense not to extend the rule beyond its required application. - This particular crime only requires that a D drive with a willful or wanton disregard for the safety of persons or property; the legislature said that this part can be fulfilled if the D violates three traffic rules which carry point penalties. - There are many traffic rules with point penalties that are not inherently dangerous, like driving an unregistered vehicle. Thus, it is possible that this offense can be committed without creating a substantial risk that someone will be killed. Dissent: - Brown o The rule should be abolished entirely since its application is so arbitrary. o The offense is inherently dangerous. o Any felony whose key element is wanton disregard for human life necessarily falls within the scope of inherently dangerous felonies. - Baxter o The purpose of the felony-murder rule is to deter those engaged in felonies from killing negligently or accidentally. o It is clear that there is inherent danger in commission of this offense. o It is ridiculous not to apply it to this offense merely because it is possible that the felony may be committed in a nonviolent way. The circumstances of the case should be considered.

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The Independent Felony (or Merger) Limitation: People v. Robertson Facts: Defendant shot and killed victims when he discovered them removing the hubcaps from his car. The court seeks to determine whether the trial court erred by instructing the jury that defendant could be found guilty of second degree felony murder if the killing was committed in the course of discharging a firearm in a grossly negligent manner. Killing in the Perpetration or in Furtherance of a Felony: State v. Sophophone Facts: Defendant and three others conspired to burglarize a residence. The resident reported the break in, and police officers responded to call. The individuals all ran. The Defendant was chased and apprehended. His co-felon, Somphone Sysoumphone, was chased, caught, and ordered to the ground. With his face down to the ground, Sysoumphone raised up and fired at the police officer. The officer returned fire and killed Sysoumphone. The Defendant was charged with and convicted of felony murder on the theory that the Defendant proximately caused Sysoumphones death by setting in motion the acts causing his death. This appeal ensued on the issue of whether the death of a cofelon can constitute felony murder. - The D argues that it was the PO and not he who killed his friend and that he was handcuffed in the back of a police car at the time of the shooting. Issue: If the killing was a lawful one by a third party, can a defendant still be convicted of felony murder? Holding: A defendant cannot be convicted of felony murder if the killing was a lawful killing by a third party. (Agency approach) Reasoning: - The agency approach, the majority rule, says that the felony-murder doctrine does not apply if the person who directly causes the death is a non-felon. - The minority rule is that a felon can be held responsible in felony murder if the felon set in motion acts which resulted in the victim's death. Proximate causation and foreseeability are the issues. Court does not follow this rule. - It is not right for a person to be charged with something that another person did lawfully. - Following the minority rule goes against the strict construction of criminal statutes. - Making one criminally responsible for the lawful acts of a law enforcement officer is not the intent of the felony-murder statute as it is currently written. Dissent: Abbott - The statute is unambiguous, and the court should not be able to add words to it. - There is no need to adopt the agency theory. The statute does not contain the limitations discussed by the majority. - This case satisfies all of the requirements, set forth in the statute: o There must be a killing, and o The killing must be committed in the commission, attempt to commit, or flight from an inherently dangerous felony (which aggravated burglary is)

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Unlawful-Act Manslaughter (The Misdemeanor Manslaughter Rule) An unintended homicide that occurs during the commission of an unlawful act not amounting to a felony constitutes common law involuntary manslaughter The flaw in the concept is that a person may be convicted of unlawful-act manslaughter even though the persons conduct does not create a perceptive risk of death o The concept violates the important principle that a persons criminal liability for an act should be proportioned to his or her moral culpability for that act. Because of the rules harshness, many courts limit the doctrine to deaths resulting from either malum in se misdemeanor conduct, or the commission of a dangerous misdemeanor MPC has led some states to abolish the misdemeanor-manslaughter rule

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Yorkana Statute - Combines NY and MI statutes form the book - Where are the malice categories in this statute? - The 4, arguably 5, malice categories are all there: o Intent to kill all other kinds of murder o Intent to kill with premeditation and deliberation - A o Intent to grievously injure - all other kinds of murder o Depraved heart - all other kinds of murder o Felony murder - B - This statute incorporates the common-law malice categories - Express provision to turn a homicide committed during the course of an unenumerated felony or a misdemeanor, into involuntary manslaughter - Reckless commission of lawful act: this is a manslaughter version of depraved heart - What is missing from this statute that is in the MPC? o No negligent homicide provision - If you got an adequate provocation fact pattern and this statute, what would you do? o Discuss common-law categories because this is a state statute that does not look anything like the MPC MPC uses extreme emotional disturbance Common law uses heat of passion o Assuming the state of Yorkana takes a common law approach to heat of passion murders,

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TOPIC: RAPE Why do we study rape? o Touches a social aspect that homicide doesnt have o Rape law reaches into conduct of everyones lives o Gender issues; race issues Force; violence; no consent those cases are easily shown to be rape o We are studying the cases where the line is not so clear Why is there rape law? o The social harm of rape (forcible, non-consensual sex) is bodily injury or bodily harm o Previously, it was seen as a crime

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State v. Alston - Facts: victim and defendant had been in a consensual relationship. Victim broke off the relationship. Defendant showed up at victims school and forced her to have sex with him - Statute: two elements of rape: force and against the victims will o Force: threats of seriously bodily harm which reasonably induce fear o Against the victims will: non-consent - Argument: there is insufficient evidence to prove either both of these above elements. Thus, as a matter of law, the defendant should not have been convicted. o Evidence of non-consent: told him relationship was over; she was afraid o Evidence of force: grabbed the victims arm; threatened that he was going to fix victims face; prevented victim from going to class; history of defendant striking her when victim she didnt listen to him; persistence in the direction of sex notwithstanding victims clear statements of not wanting to do it; forced to lay down This is not enough - Why does the conviction get reversed? o The legal standard of the force element necessary for rape are the presence of threats of seriously bodily harm which reasonably induce fear o There was no actual force gun, knife, etc o There were no threats of force Why are the things we listed not enough to constitute threats of serious bodily harm that reasonably induce fear? The two acts of clear force grabbing her arm and threatening to fix her face - were about just getting the victim to come back to the relationship and get back with him. The threats did not relate to the act of intercourse. They were violent and threatening things, but they were not conceptually related to intercourse. Violent behavior and threats were not sufficient to reasonably induce fear or harm had she not had sex with him. - Why is non-consent not enough alone? Why must there be force? o Originally, no was not enough. o Force was required because the sexual script was that good women dont say yes and men were expected to keep going. You were never supposed to get a yes. A no didnt mean anything at all in the traditional sexual script. Thus, you needed force. o Court focused on threats that reasonably induce fear of serious bodily harm A subjective fear is not enough A reasonable person has to have felt it as well The focus is on the complainant, not the defendant
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Even if it is reasonable to be afraid of D in a general matter, was it reasonable to be afraid of D regarding this sexual matter? No

How Much Force: The Resistance Requirement: Rusk v. State - Two standard elements of rape in the majority of jurisdictions: o Force: threat of bodily harm o Non-Consent: against the victims will Facts: Defendant met the victim at a bar, the victim gave the defendant a ride how, when they got to defendant's house, defendant asked the victim to come in with him...She said no, defendant confiscate her car key, then victim went inside the tenement of defendant with him. When inside the apartment, defendant went to the bathroom but victim did not try to escape, he came back, turned off the light and asked victim to take off her clothes, she refused, defendant insisted, and the victim later took of her clothes...she then again asked him to let her go, he refused....and she finally said "if i do what you want would you let me go"...he said yes, she then proceeded to have oral and sexual intercourse with him. Footnote 2, p. 407: Elements of the crime - Force or threat of force - Against the will - Without consent Rule: (Hazel) Force is an essential element of the crime of rape and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she prevented from resisting by threats to her safety. Analysis: court reverses rape conviction because of insufficient evidence to prove force - Force o Words/actions created in victim reasonable fear o Use of force to overcome resistance o Failure to resist because of reasonable fear - The taking of the car keys, the look in the Ds eyes and the light choking, are all cited as evidence of the Ds force, which created fear in the victim o Light choking could have been lightly caressing o Although he took keys, she could have honked the horn or took off on food o The look in his eyes there were other ways of getting out there was a telephone in the room and she was left in the room by herself for a while - Court is essentially saying that there are not enough facts for a reasonable person to fear being harmed - no resistance offered that needed to be overcome in this case - What do we think of the opinion? o As a woman, if you do not do everything in your power to get out of the situation, you have not really shown that you resisted - What is the function of the resistance requirement? o Serves as notice to the D that I really dont want to do this o Need to make it clear that she meant it The entire sexual social script according to which we acted until the past 20-30 years was that a man was supposed to pursue and women were supposed to be resistant/unwilling - The Supreme Court reverses; upon what legal principle does this decision rest? o If our standard is reasonableness, who better to make that decision than the
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12 members of the jury. The jury saw/heard testimony and decided victims fear was reasonable. It is not the judges place to take that decision away from them and say that they were wrong. No (or the absence of Yes) as Force? Commonwealth v. Berkowitz - If you were afraid to resist, the fear must have been enough that a reasonable person would agree Facts: Victim and D were both college sophomores. Victim drank a martini and went to her boyfriend's dorm room. Her boyfriend was not there, so she went to find his roommate. She saw a boy sleeping on a bed and thought it was the roommate. She lifted the pillow from his head and found D instead. Victim and D talked on the floor for a while. D locked the door but only so people on the outside could not get in. D began kissing and fondling victim; she told him no. D put her down on the bed and penetrated her. She began moaning no's. After 30 seconds, D pulled out and yanked it on her stomach. Issue: What precise degree of actual physical force necessary to prove "forcible compulsion"? Analysis: - How could you find force? o D was straddling the victim/kind of holding her down o D locked the door o He apparently pushes/leans her down - Victim knew the Ds intentions, therefore the Court will argue that the D did not have the notice o Prior telephone conversations between the D and victim; victim had come over and laid on his bed before - Court says they have taken out the resistance requirement. However, the defendant can introduce lack or resistance to prove there was no evidence of non-consent o Burden put on the complainant to say no and prove that she means it. Otherwise, the presumptive rule is that men are supposed to and will not be faulted for pushing for sex. If you are a woman who doesnt want it, you better make it clear and no is not enough. Rule: The determination of whether there is sufficient evidence to demonstrate forcible compulsion is a determination that will be made in each case based upon the totality of the circumstances that have been presented. Some factors to consider include - The respective ages of the victim and accused - The respective mental and physical conditions - The atmosphere and physical setting - Extent to which the accused may have been in a position of authority, domination, or custodial control over the victim - Whether the victim was under duress

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Against the Will - In Rusk and Alston, the state must prove o Force/Threat of Force o Against the Will o Without Consent - What purpose does against the will serve? o Against the will adds nothing to the analysis. o It may mean the resistance requirement, which is proven by showing force or non-consent. - Thus, traditional elements of rape are: o Force o Non-Consent - Resistance is needed to put the defendant on notice. Unless the victim really shows it with resistance, how can you expect a man to know she is serious because every women is supposed to say no?

Why can the Berkowitz statute get away with not having a non-consent requirement? - Forcible Compulsion - Consent is always a defense to almost any criminal act. - Consent doesnt disappear although it does not appear as a requirement element of the crime o Raised as an affirmative defense trying to rebut the states case o Must prove beyond a reasonable doubt that she reasonably consented

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State of New Jersey in the Interest of MTS Talks about what rape law should be about. - MTS does three things: o Puts the emphasis on the defendant, not the complainant o Put the reasonableness standard of the inquiry on to the defendant o Rewrites the NJ statute Only one element needed to prove rape in NJ: force/threats of force Leaves out the consent element Facts: Victim woke up and D was in her room. She went back to sleep and he tried to have sex with her. Some suggestion that she didnt really want it but didnt really reject his advances. Class Notes on MTS - p. 439: sets forth the standard - Prosecution has to show the absence of affirmative and freely given permission o Freely: Suggests that women are not expected to say no; o Affirmative: Must show a yes; rather than show the victim said no Focus on the defendant, not the victim o Permission: the woman is still cast in a non-initiating role o Silence means: permission may be inferred either by acts or statements reasonably viewed in light of the circumstances - The best policy choice for a man/woman in a silence situation o Based on this case, it encourages much more explicitness in the sexual transaction say something or else the man/D is in danger of being convicted of rape - With this new emphasis on verbalization and explicitness: o Like a contract o Awkward (script)

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Withdrawn Consent: People v. John Z. Facts: Victim had a bf and had sex with him. He leaves the room and his friend enters to have sex with her. Victim kept saying she had to go home. Issue: Did the victim properly withdraw her consent to sexual intercourse? Rule: Rape is the act of forcible sexual intercourse. It does not matter when the victim withdraws her consent, so long as the victim communicates said withdrawal of consent and the defendant ignores it. Holding: Yes. Forcible rape occurs when the act of sexual intercourse is accomplished against the will of the victim by force or threat of bodily injury, and it is immaterial at what point the victim withdraws her consent, so long as that withdrawal is communicated to the male and he thereafter ignores it. Reasoning: Even though the minor claimed that, at best, the evidence shows that the victim initially consented and then withdrew her consent, the minor still committed rape. Withdrawal of consent can be done at any time. Class Notes - Not buying primal urge theory, which suggests that the actus reus of the crime was missing - that he was in an automatist state where his lust took over - Outrage is not a part of the statute/element of the crime so we dont need to talk about it - She reasserted her desire to not continue to have sex - Dissent (female justice) o A woman does have a right to say no but she has to clearly communicate it to the male o Doesnt believe the woman clearly communicated her withdrawal of consent to the male o Dont coddle women because that permits a paternalistic view o The showing of force was very weak missing element

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Mens Rea: Commonwealth v. Sherry Facts: Three defendants were convicted by a jury of rape for escorting the victim to a bathroom and each separately having intercourse with the victim. The trial court refused to give two instructions exactly as requested and the defendants appealed stating that the defendants were mistaken as to whether consent to sexual intercourse was given by the victim. - Ds wanted an instruction on the basis of mistake of fact (to a general intent crime) o A person is held to a reckless/reasonable standard to decide the elements of force and non-consent Was it reasonable for the Ds to believe that the victim consented to the sex act? Look at Ds mind what gave Ds the idea that she was consenting. o The Ds wanted an instruction that told the jurors that the prosecution must prove that it was non-consent without the knowledge of non-consent Do not get it because rape is a general intent crime and they are trying to make it a specific intent crime. Issue: Is the trial courts failure to give a particular requested jury instruction prejudicial to the defendants? Holding: No. A defendant is not entitled to any particular jury instruction as long as the charge, as a whole, was adequate. Reasoning: The defendants, in seeking to have the particular jury instruction read, appear to have been raising a defense of good faith mistake on the issue of consent. The defendants argued on appeal that mistake of fact negating criminal intent is a defense to the crime of rape. However, the Supreme Judicial Court of Massachusetts did not reach the issue of whether mistake of fact is a defense to rape, since the defendants did not request a specific jury instruction on a reasonable good faith mistake of fact. - Good faith that he had this belief and he actually believed it Rape by Fraud or Non-Physical Threats: Boro v. Superior Court Facts: The victim was fraudulently induced into having consensual sexual intercourse with the Defendant, Daniel Boro (Defendant). Even though the victim thought the sexual intercourse was needed to save her life, the Defendant was not guilty of rape since she knew that they were having sexual intercourse. Class Notes for Boro - This is not rape because the common law rule distinguished between two types of fraud o Fraud in the factum: if you trick a person into believing they are not having sex o Fraud in the inducement: not rape because she was consenting to the act as compared to fraud in the factum where there is no consent Policy arguments for not making this rape: slippery slope
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Inducements can run from claiming love to being rich Most sexual interactions are coerced in some way

Strict Liability: Statutory Rape: Garnett v. State Facts: A young retarded man, who was 20 years old, had sex with a girl who was under 14 years old and who was more than 4 years his junior. However, he believed that she was 16 at the time. - The defense is that he didnt know she was under the statutory age. He thought he was 16 (he was 20). In fact, she was under 14 and he was 4 years older her. o He didnt have the mens rea necessary to be guilty. o He offered the reasonable mistake of fact defense. o He reasonably believed that she was of the proper age. - Maryland rejected it after looking at the statutes of other states. o The intent of the legislature is clear. The statute doesnt say it. o No mens rea requirement for commission of this offense is required. In other sections MD had included mens rea so leaving it out here was the legislatures intent. - Why no defense on a reasonable belief that a girl is of age? o Over-deterrence. Legislature wants you to stay over cautious o From a deterrence standpoint, allowing a mistake of fact defense to statutory rape would not do enough to discourage men from sleeping with girls who look younger. o As a policy message, men should avoid approaching that line. If they think the girl is underage, walk away since there will be no defense. - What is the argument in favor of a mistake of law defense? What has changed, arguably, about the relevant facts? o In the past 40 years, many things of changed Women in the workforce Different clothing Makeup Social scenes Internet o Unfair to men

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TOPIC: DEFENSES
Categories of Defenses The term defense is ommonly used to me n ny set of identifi ble onditions or circumstances, which may prevent a conviction for an offense. - Failure of Proof Defense o Missing an element necessary to prove the offense charged o Example: Mistake of Fact The state cannot prove the required mental element of knowledge - Offense Modification Defense o Applies even where all elements of the offense are satisfied. o BUT, the actor has not caused the harm or evil sought to be prevented by the statute defining the offense. o There was some purpose/motive why crime was committed and therefore should not be convicted - Justification o The social harm that is meant to be avoided is outweighed by the need to avoid an even greater harm or to further a greater societal interest o Focuses on the act, not the actor o Elements of the offense are satisfied - Excuses o Elements of the offense are satisfied, but excuse the actor because conditions suggest that the actor is not responsible for his deed. o Focuses more on your state of mind o Not saying you didnt have the mens rea, because you did, but it is saying you did it for a reason we understand o You did not commit a social good, you committed a social harm o Classic example: Adequate Provocation/Extreme Mental/Emotional Disturbance - Nonexculpatory Public Policy Defenses o Public policy-based bars to prosecution that further important societal interests o In nonexculpatory defenses, the defendants conduct is harmful and creates no societal benefit; the defendant is blameworthy. The societal benefit underlying the defense arises not from his conduct, but from foregoing his conviction. Burden of Production - Two burdens of proof arise in criminal trials: o The burden of production (or the burden of going forward) The party on whom this burden is placed has the initial obligation to introduce evidence in support of the matter at issue The prosecutor has the burden or production regarding the elements of a crime The defendant typically has the burden of production in regard to affirmative defenses o The burden or persuasion The burden of convincing the factfinder of the truth of the claim in
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question

Dressler on Defenses - Today, a successful claim of excuse has the same direct effect as a justification: acquittal of the defendant - The words justification and excuse are not interchangeable in the taxonomy of criminal law defenses o A justification doesnt excuse conduct; an excuse does not justify conduct - Justified conduct is conduct that is a good thing, or the right or sensible thing, or a permissible thing to do. o A defendant who raises a justification defense says, in essence, I did nothing wrong for which I should be punished. o Something which ordinarily would be considered wrong or undesirable (social harm) is, in light of the circumstances, socially acceptable or tolerable. o A justification negates the social harm of an offense - An excuse is in the nature of a claim that although the actor has harmed society, she should not be blamed or punished for causing that harm o The defendant who asserts an excusing defense says, in essence, I admit, or you have proved beyond a reasonable doubt, that I did something I should not have done, but I should not be held criminally accountable for my actions. o Whereas a justification negates the social harm of an offense, an excuse negates the moral blameworthiness of the actor causing the harm - When the law fails to focus on the justification-excuse distinction, it risks sending a false message

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Self-Defense Structure and Underlying Theories of Justification Defenses - All justification defenses have the same internal structure: triggering conditions permit a necessary and proportional response - Triggering conditions are the circumstances that must exist before an actor will be legible to act under a justification. The triggering conditions of a justification defense do not give the actor the privilege to act without restriction. o To be justified, the responsive conduct must satisfy two requirements: It must be necessary to protect or further the interest at stake, and It must cause only a harm that is proportional or reasonable in relation to the harm threatened or the interest to be furthered. - The necessity requirement demands that the defendant act only when and to the extent necessary to protect or further the interest at stake. o If the actor is in no danger at the time, he is not justified in immediately using physical force against the aggressor - The proportionality requirement places a limit on the maximum harm that may be used in protection or furtherance of an interest. o It bars justification when the harm caused by the actor may be necessary to further or protect the interest at stake, but is too severe in relation to the value of the interest Dressler Justification Principles - Public Benefit Theory o Conduct is not justified unless performed in the publics interest o The benefit to society is not incidental to some self-interested goal of the actor; it is the underlying motivation for the actors conduct - Moral Forfeiture Theory o An actors voluntary decision to violate the rights of another may cause ones right to live to be forfeited. o As a result of Vs freely-chosen decision to wrongfully threaten Ds life or to commit a dangerous felony, V forfeits her right to life; consequently, when D kills V in self-defense or in order to prevent Vs escape, no socially recognized harm has occurred. - Moral Rights Theory o Conduct may be justified on the grounds that the actor has a right to protect a particular moral interest o The forfeiture doctrine focuses on the wrongdoing of the victim whereas the moral-rights theory focuses on the interests of the defendant. - Superior Interest (or Lesser Harm) Theory o Authorizes conduct when the interests of the defendant outweigh those of the person she harms o Goal is to promote individual conduct that reduces overall harm
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General Principles: United States v. Peterson Facts: deceased and two friends were trying to remove defendants windshield wipers form the car parked in defendants driveway. The D comes out and threatens them and goes back inside and grabs pistol. In the meantime, the victim was trying to leave. The D threatens to kill them if they try and leave. The victim grabbed a wrench and took a step toward the D. The D shot him in the face. The D wanted a self-defense instruction. Analysis - The right to self-defense is granted only to those free from fault and it is denied to those who incite the fatal attack, encourage the fatal quarrel, or otherwise promote the necessitous occasion for taking life. - One who is the aggressor in a conflict culminating in death cannot invoke the necessities of self-preservation. Only in the event that he communicates to his adversary his intent to withdraw and in good faith attempts to do so is he restored to his right of self-defense. o Victim was leaving when defendant returned with pistol even if victim had previously been the aggressor, he no longer was. - Jury instructed that if defendant could have safely retreated but did not do so, that failure was a circumstance which the jury might consider in determining whether he went further in repelling the danger than he was justified in going. o Defendant argues that he was standing in his own yard and was under no duty to move. Castle Doctrine one who through no fault of his own is attacked in his home is under no duty to retreat therefrom. o COURT: the castle doctrine can only be invoked by one who is not the aggressor and who has not instigated the conflict. Class Notes on Peterson - Elements of self-defense: o Threat; Deadly force; Unlawful; Immediate; Imminent peril of death; Necessary; Reasonable - What was he hoping he would get from the jury when he said self-defense? o Defendant was hoping to show that the victim was the aggressor o State: Even if you do count the stealing of the windshield wipers as the beginning of the situation, there was no deadly force. Even though the victim may have been an aggressor, the defendant turned it into a deadly encounter. - An aggressor loses his/her status as an aggressor upon communicating to his adversary his intent to withdraw and in good-faith trying to do so. - Even if the defendant had a duty to retreat, the defendant was still entitled to the Castle Doctrine o Practical Reason for this doctrine Where can you retreat to when youre in your own home o Principal reason for this doctrine The law should not tell someone that they are not allowed to stand
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ground and protect home o Court says if you are the aggressor, the instructions were fine and you are not entitled to the Castle Doctrine Notes and Questions 1. Aggressors a. HYPO: Dina ordinarily walks along a particular street in a residential area as part of her daily exercise regimen. One day Arthur, the resident bully, informs her that if she comes that way again he will kill her. Dina could just as conveniently walk along another street, but believing that she had every right to walk where she chooses, she decides the next day to arm herself with a licensed gun and walk along the now forbidden route with her weapon visible to onlookers. Arthur appears and comes toward her menacingly. Dina shoots and kills him. - Who is the aggressor according to Peterson? DINA o It wasnt necessary for Dina to use force (didnt have to walk on that walkway); Dina instigated it by walking on that street o Dina loses the self-defense option on the necessity element Do not provoke the conflict Seek help instead - How would the MPC 3.04 handle these facts? 2. Deadly force may not be used to repel a nondeadly attack, even if this is on the only way to avoid injury.

What does the retreat requirement go to? - It goes to the necessity requirement if you can get out of the way, it is not necessary for you to use force. - There really are two elements of self-defense: o Defendants perception that it was necessary to use that much force o The reasonableness of this perception

According to Peterson, the elements of self-defense are: 1. Threat 2. Deadly Force 3. Unlawful 4. Immediate (use) 5. Imminent Harm 6. Necessity **All of the above elements collapse into the necessity and reasonableness prongs**

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Reasonable Belief Requirement: People v. Goetz Facts: Goetz shot and wounded four kids with an unlicensed gun on a train after they approached him asking for five dollars. None of the victims displayed a weapon. Goetz contends that the youths intended to rob him. D purchased gun after a mugging and had warded off assailants twice since by simply displaying the gun. Still, D says that he was certain that none of the youths had a gun and his intention was to murder all four kids. Issue: Does a defendant need objectively reasonable belief of immediate threat for him to use self-defense as a justification for his actions? Holding: The court ruled that a reasonable man standard applies to self-defense cases. Analysis: - (PP: lower court found that the statutory test for whether the use of deadly force is justified to protect a person should be wholly subjective, focusing entirely on the defendants state of mind when he used such force.) - The court argued that if it accepts the subjective standard good enough to relieve the defendant of the liability, it would "allow citizens to set thier own standards for the permissible use of force..." - Court stated that in order for a person to use self-defense as a defense, he must prove to the jury that a reasonable person would have acted in the same way as he acted under the same conditions. Notes and Questions on Goetz - Goetz said grand jury were told the wrong instructions. The instructions given said that the objective reasonable man standard should have been used o Goetz said the grand jury should have used a more subjective standard. Whether shooting the kid was reasonable for Goetz o In finding whether to indict him and evaluating his claim for self-defense, probable cause was found based on an erroneous instruction The prosecutor introduced an objective element into the defense. The jurors were to consider the conduct of shooting the kids against the conduct of a reasonable man in the circumstances. - Goetz was later tried by a jury, which acquitted him of all charges for attempted murder. - Goetzs attorney offered a version of events in which, once the gun was drawn, Goetzs self-preserving instinct took command. His mind was not in control and he did not know what he was doing o Rapid-fire theory - Four things that are admissible in trial to determine the reasonableness of the circumstances facing defendant or of his situation: - Physical movements of potential assailants - Ds relevant knowledge of the victim - Physical attributes of all the people involved - Prior experiences of the D - Those not mentioned by the court are:
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Prior violence experiences with the victim (experienced/heard/seen) Victims reputations for violence that the D was aware of - Prior experiences of the defendant Was it reasonable for a person in Goetzs situation to feel an immediate threat Why does Goetz lose? - If you accept that it needed to be reasonable to the D, a person would always win on self-defense since we always think our actions are reasonable. - However, the factors in determining whether a D was objectively reasonable will be taken into account.

Wh t does the re son ble person think about in a New York subway? Are any of the following matters relevant in determining whether a reasonable person would have believed that the youths intended to seriously harm Goetz? - Would it be relevant that two of the youths were armed with screwdrivers? - Only if there were evidence that Goetz knew of the youths being armed would this information be relevant. - Would it be relevant that Goetz had previously been mugged? - Perhaps if it had bearing on his reaction. - Would the clothing worn by the youths be relevant? - Identifiable gang clothing that D had knowledge of - Clothing stereotypes - Would it be relevant that one of the youths said give me $5? - If the D could make the case that it sounded like a threat, it would be admissible. - Would it be relevant that the victims were young, African-American males and that Goetz was a middle-aged white male? An acquittal means that a jury could not find beyond a reasonable doubt that the D was unjustified. A juror should ask: should it be reasonable for people to think this w y? - Think about the way you want society to be. That is what should determine whether it is reasonable or not.

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The Reasonable Person: Objective, Subjective, or a Mixed Standard? State v. Wanrow Facts: Wesler, was suspected of child molestation, and was accused by the s son of attempting to drag him into a house. Also, the friends daughter identified Wesler as the one who had molested her, and the landlord stated that Wesler had attempted to molest the previous residents of the house. Afraid that Wesler would come back during the night and attempt to break in, a group of parents gathered in the house with their children. Early in the morning, some of the fathers went to Weslers house finding him intoxicated. Wesler then went with the fathers back to the house, and attempted to explain the accusations. A loud argument ensued, and Wesler apparently refused to leave. The left the room, and when she turned around, she saw Wesler, a large man, standing behind her, startling her. She then shot Wesler with a revolver as a reflex action. Procedural Posture: The trial court instructed the jury on self-defense according to an instruction #10 which stated that there must be, or reasonably appear to be, at or immediately before the killing, some overt act which would reasonably lead the to believe that the aggressor was trying to kill him or inflict great bodily harm upon him. The instruction used the male pronouns throughout. The court also admitted a recording of the call to police to report the shooting. The jury convicted the . Issue: Whether it is proper to exclude consideration of past events in the s knowledge or experience when instructing the jury on self-defense. Holding: No; Instruction 10 was misleading and a misstatement of law to the extent that it required that the jury consider only those acts and circumstances occurring at or immediately before the killing. Analysis: - The justfication of self-defense is to be evaluated in light of all of the facts and circumstances known to the , including those known substantially before the killing. - The standard for self-defense is not an exclusively objective one as indicated by the instruction. - Furthermore, the instruction was sexually biased. o In using the male pronouns for a , it gave the false impression that the jury should apply an objective standard based on an altercation between two men. o The fact that the was an injured and small woman, and that the deceased was large and intoxicated man are facts which are proper for consideration by the jury in their determination of whether the acted in self-defense. Notes and Questions on Wanrow - Some feminist commentators believe that the holding in Wanrow is justified on the ground that traditional self-defense rules are male-oriented and, therefore, unfair to women who kill men, especially abusive men - Instruction criticized on two grounds: o The defendants relevant knowledge of the victim was excluded D knew victims tendency for sexual molestation
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o Misuse of pronoun he in instruction given: If the instruction is about a reasonable man, jurors expect different reaction from women. A jury should be able to consider gender. Battered Women/Battered Woman Syndrome: State v. Norman I (Court of Appeals) Facts: defendant, who had been beaten all day by her alcoholic husband, went to her mothers house nearby and got a pistol. When she returned to her house, she loaded the gun and shot her husband of 25 years while he slept. - Defendants evidence disclosed a long history of verbal/physical abuse - Decedent beat defendant while she was pregnant causing child to be born prematurely and die; decedent forced defendant to prostitute herself every day in order to support him and if she refused, he slapped her; if defendant failed to make $100/day, decedent would beat her; burned her; refused to let her eat; made defendant bark like dog/eat out of pet bowls/sleep on the floor. - Decedent often stated that he would kill defendant/cut her heart out - Defendant took pills; therapist said defendant was angry/depressed and felt her situation was hopeless - Defendants mother called police to inform them of beatings; no help arrived - Expert witnesses said defendant fit the profile of a battered spouse/abused spouse syndrome defendants situation became torture, degradation, and reduction to an animal level of existence; found defendant fully believed that escape was impossible. o Abused spouse syndrome refers to situations where one spouse has achieved almost complete control and submission of the other by both psychological and physical domination; the abused spouse comes to believe that the other person is in complete control; that they themselves are worthless and they cannot get away; that theres no rescue from the other. Issue: whether the defendants passiveness at the moment the homicidal act occurred precludes defendant form asserting self-defense. Holding: the evidence in this case as sufficient to submit an issue of self-defense to the jury. A jury could find that the decedents sleep was but a momentary hiatus from torturing the defendant, which she took advantage of. Analysis: - The elements of self-defense include both subjective and objective standards. - Elements of Self-Defense: o It appears to the defendant and the defendant believes it necessary to kill the deceased in order to save herself from death or great bodily harm (subjective) Evaluation inquires as to what the defendant herself perceived at the time of the shooting (here, D believed decedent would killer her) o The defendants belief that it is necessary to kill the deceased in order to safe herself from death/bodily harm must be reasonable This is measured by the objective standard of the person of ordinary firmness under the same circumstances - The defendants evidence that she exhibited what has come to be called the battered wife syndrome entitled her to have the jury consider whether the homicide was an act of self-defense and, thus, not a legal wrong.
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The imminence prong should be interpreted as continuous. If she waited until harm was imminent, she would not have been able to act.

Battered Women/Battered Woman Syndrome: State v. Norman II (Supreme Court) - Supreme Court concludes that the evidence introduced in this case would not support a finding that the defendant killed her husband due to a reasonable fear of imminent death or great bodily harm, as is required before a defendant is entitled to jury instructions concerning self-defense. - The right to kill in self-defense is based on the necessity, real or reasonably apparent, of killing an unlawful aggressor to save oneself from imminent death or great bodily harm at his hands. o Imminent (def.) immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law. Evidence did not show that harm was imminent or about to happen to the D when she shot her husband. In fact, he was asleep. D was not faced with the instantaneous choice between killing her husband or being killed/serious injured. Instead, the D had ample time and opportunity to resort to other means of preventing further abuse of husband. o The expert testimony regarding the Ds speculative beliefs concerning her remote future indicates that there was no imminent threat to D when she killed her husband. Dissent: - Ds intense fear evident in the testimony of witnesses who recounted events of the last three days of the decedents life could have led a juror to conclude that D reasonably perceived a threat to her life as imminent, even while her husband slept. Morse The New Syndrome Excuse Syndrome - Syndrome evidence will support the honesty and reasonableness of the defendants belief and the proportionality of her defensive force because it will explain why people subjected repeatedly to terrible physical abuse stay with the abuser. - Battering syndrome sufferers may be especially acute observers of cues that presage imminent violence from the abuser. o Although the situation may appear non-threatening to an ordinary person, the battered syndrome suffering defendant may know quite reasonably that a particular look/gesture is always followed by dreadful violence. - Expansionists want to ask what a reasonable syndrome sufferer would have believed and one in a particular circumstance rather than ask what a reasonable person would have believed and done in these circumstances. Narrow the Self-Defense Requirements to Four: Threat of force (deadly/non-) Imminence (** focus of battered woman syndrome**)

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Necessity Reasonableness

MPC: Self-Defense - MPC differs from the common-law/statutory approach to self-defense - There is no reasonable component in this provision (it is in a different statute)
MPC: Unreasonable Mistake - The MPC says that when you are wrong and unreasonable: o The defense is unavailable for murder Can be convicted of an unintentional killing Your mens rea need only be recklessness or negligence o The defense is available for manslaughter Cant be convicted of an intentional killing

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TOPIC: DEFENSES: NECESSITY VS. DURESS

Necessity (Choice of Evils): Nelson v. State Facts: Nelson and his two friends were driving around in his vehicle when it became bogged down in a marshy area. After they were unsuccessful at freeing it, Nelson went to a Highway Dept. Yard and took a dump truck and front-end loader to help free his car. Nelson was still unable to free his car and, in his attempts, he caused significant damage to the vehicles from the dump yard. Nelson was arrested and convicted of reckless destruction of personal property and joyriding. - Nelson requested an instruction on the defense of necessity which read: o D is allowed to use a motor vehicle of another person w/o permission if the use is for an emergency in the case of immediate and dire need - The Courts instruction on the necessity defense read: o A defense only existswherein it becomes necessary for a person to violate the law in order to avoid a greater evil to himself or his property. The harm, which is to be avoided, must be the greater harm and it must be immediate and dire. Where a reasonable alternative other than violating the law is available, the defense of necessity is not applicable Issue: whether the jury was properly instructed on the defense of necessity; Holding: Yes Arguments: - Nelson argues that the jury instruction was erroneous because it allowed the jury to apply what he calls and objective, after-the-fact test of need and emergency, rather than a subjective, reasonable man test. o Nelson means that he was entitled to have explained to the jury that they must view the question of necessity from the standpoint of a reasonable person knowing all that the defendant did at the time he acted. Rule: Three essential elements to the necessity defense: 1. The act charged must have been done to prevent a significant evil 2. There must have been no adequate alternative 3. The harm caused must to have been disproportionate to the harm avoided. Reasoning: - The significant evil, namely, the truck tipping, did not constitute an emergency because it lasted for 12 hours. - There was an adequate alternative because people stopped and offered assistance, rides, or offers to telephone troopers/tow truck - It cannot be said that the harm sought to be avoided in this case potential damage to Nelsons truck was greater than the harm caused by his illegal actions Class Notes on Nelson - Elements of the instruction: o Immediate/dire need o Natural forces o Greater evil (subjective)

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o Greater evil (objective) o No reasonable alternative Nelson does not want the instruction to be objective. o It should have been from a subjective standpoint o This would have taken out the 4th and 5th element of the instructions Court agrees Nelson is right but the instruction is right because reasonableness runs through it o Even if Nelson was wrong in his assessment, as long as the jury finds his assessment was reasonable, the jury should acquit Still, Nelson could not be given the benefit of the exemption because he loses on the ground of immediate/dire need.

Although Courts are reluctant to extend the homeowner exemption, considering the Legislatures emphasis on notions of fairness and practicability, making the exception to Vasso will not unreasonably expand the exception.

Defense to Murder?: The Queen v. Dudley and Stephens Facts: Dudley, Stephens, Brooks, and Parker, crew members on a yacht, were cast adrift 1600 miles from land in an open lifeboat. After 12 days, they were out of food. Dudley and Stephens suggested to Brooks that one person might have to be sacrificed to save the others. Brooks dissented. Without consulting him, Dudley and Stephens killed Parker on day 20. They were rescued 4 days after the murder. Issue: may an innocent person be killed in order to save the life of another? Holding: Homicide may not be excused when the person killed is an innocent and unoffending victim. Reasoning: - The victim did not assault or endanger the killer. He had no control over the circumstances leading to starvation. - The extreme necessity of hunger cannot justify larceny, let alone murder. - The preservation of one's own life is a duty, but sometimes one must sacrifice it. - Law and morality are not the same, and many things may be immoral which are not necessarily illegal. If these men were to be found innocent, it would signal the divorce of law from morality. Class Notes on Dudley Notes and Questions: Dudley - The MPC does not rule out the use of its choice-of-evils provision in homicide cases.

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HYPO: F drives a trolley car. As the trolley rounds a bend, F sees five workers repairing the track. The only way to avoid striking and killing them is to stop the trolley, but the breaks unexpectedly fail. F sees a spur of track that would lead the trolley off to the right, but there is a single woman on the spur. F turns the trolley onto the spur, killing that woman, but saving the lives of the other five workers. - As long as it is not of your choice or choosing, it is not your fault o He turned the trolley - Did F choose the lesser evil? o Definitely killing 5 vs. Possibility of killing 1 HYPO: G is a surgeon with five desperately ill patients, two of whom need a lung transplant, two of whom require a kidney, and one of whom is waiting for a healthy heart. Each will die within 24 hours without the needed organ. H comes to the hospital for a routine physical. H is in excellent health, with the appropriate blood-type and tissue matches to allow his organs to be transplanted into all of the dying patients. Without Hs consent, G harvests Hs heart, lungs, and kidneys/ H dies, bug Gs five patients survive and live long, healthy lives. HYPO: the best way to deter terrorism is to kill 5 members of each terrorists family. - Do we want to authorize these actions: o Utilitarianism: yes o Moral View: no, you dont kill innocent people Requirements of Necessity: - Clear and imminent danger - Natural forces - Lesser evil chosen - (reasonableness) Requirements of Duress: - Threat of imminent death or serious bodily harm - Human cause - Well-grounded fear - No reasonable opportunity to escape Dressler: Underlying Theories of Excuse 1. Searching for an Explanatory Theory o Excuse defense: although the actor has harmed society, she should not be blamed or punished for causing the harm 2. Causation Theory o States that a person should not be blamed for her conduct if it was caused by factors outside her control 3. Character Theory
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o States that punishment should be proportional to a wrongdoers moral desert, and that desert should be measured by the actors character 4. Free Choice or (Personhood) Theory o States that a person may be blamed for her conduct only if she had the capacity and fair opportunity to function in a uniquely human way i.e. freely to choose whether to violate the moral/legal norms of society

How does Duress differ from Necessity? - Duress: is an excuse o We are, in theory, saying that you didnt do the right thing but we excuse you. We understand why you did it. We are not focused on the act, which was bad, but we understand the state of mind in which you did it. Thus, you are less or entirely unblameworthy - Necessity: is a justification o Good job, you did the right thing

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Duress: United States v. Contento-Pachon Facts: was a taxi-cab driver in Bogota, Columbia. One of his passengers threatened his wife and child with death if he did not carry cocaine into the U.S. by swallowing several balloons. The threatener added that he would kill the wife and kids if tried to get help or failed to cooperate in any way, and sent someone to watch him to make sure that he did not flee. In Los Angeles, the consented to having his stomach x-rayed, resulting the finding of the balloons. Procedural Posture: was charged with unlawful possession with intent to distribute. At trial, the trial court refused to allow s offered evidence of duress or necessity, holding that as matter of law, his evidence was too weak to support a showing of immediacy or inescapability. appealed. Issue: Whether the exclusion of the duress and necessity defenses were prejudicial in this case; Holding: Duress: Yes; Necessity: No. Argument: - Jorge was dangerous enough to present an immediate threat to the lives of his wife and child, for the entire duration of the flight. - There was no opportunity to escape because the police in Columbia and Panama are corrupt and paid by the drug dealers. - There was no opportunity prior to consenting to the x-ray to surrender to police. Argument: - The initial threats were not immediate because they were conditioned on the defendants failure to cooperate in the future. - He was not physically restrained prior to the time he swallowed the balloons, and so he could have sought help or fled. - Also, there was no evidence that he desired to turn himself in. Majority Reasoning: - The elements of a duress defense are: 1) an immediate threat of death or serious bodily injury 2) a well-grounded fear that the threat will be carried out 3) no reasonable opportunity to escape. - Sometimes, the must also submit to proper authorities after reaching the position of safety. - The satisfies each of these conditions. - However, the trial court was proper in excluding the necessity defense, because it was inapplicable here. - The distinction between duress and necessity is that duress negates the mens rea required for the crime, where necessity precludes the actus reus. Class Notes on Contento-Pachon - He should have gotten the duress instruction o His immediate threat of death/serious injury was that the drug dealer threatened to kill his family o It was a well grounded fear because the drug dealer told him information
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about his personal life o There was no reasonable way to escape because he thought people were tailing him, that police were corrupt, and he had no way to get family out

TOPIC: DEFENSES: CIVIL DISOBEDIENCE

Civil Disobedience: United States v. Schoon Facts: The was a part of an organized protest group that gained admittance to an IRS office and splattered fake blood on the office, chanting keep Americas tax dollars out of El Salvador. Procedural Posture: was prosecuted, and a trial, the judge refused to allow the defense of necessity, finding that 1) the requisite immediacy was lacking, 2) the actions taken would not abate the evil, and 3) other legal alternatives existed. Issue: Whether the necessity defense is available in a case of indirect civil disobedience; Holding: No Reasoning: - Necessity is a utilitarian defense. It seeks to maximize social welfare by minimizing the effect of competing harms. It allows the courts to craft exceptions to criminal statutes when it is clear that the legislature would have done so under the same circumstances. As such, it can not be applied with the harm to be averted is not a harm at all. Here, the government, elected by the people, has deemed aid to El Salvador to be beneficial, not harmful. - The law can not allow individuals to put their subjective judgment on what is harmful above that of the legislature. - Second, the act of protest here was very unlikely to abate the harms occuring in El Salvador. - Thirdly, legal alternatives will never be deemed to be exhausted when the harm can be mitigated by congressional action. Congress can always change its mind based on the ballot box. Lastly, the problem here is that the is trying to distort the necessity defense as a means of providing notoriety for his cause. Thus, indirect civil disobedience can never support a necessity defense. Class Notes on Schoon

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TOPIC: DEFENSES: INTOXICATION

There are two legally relevant forms of intoxication in the criminal law: Voluntary; Involuntary

Voluntary Intoxication: Commonwealth v. Graves Facts: The D and his cousins burglarized the home of the victim, Patiri and robbed him. The victim sustained injuries during the burglary and robbery that resulted in his death. The D claimed that on the day of the incident, he consumed a quart or more of wine and had taken LSD. The D claims that this rendered him unconscious and he suffered limited amnesia resulting in him having no recollection of the events leading to the victims death. Issue: Can the defense of voluntary intoxication be used to negate the specific intent elements of the offenses of burglary and robbery in addition to negating the specific intent to commit murder? Holding: Yes. Reasoning: - While the PA Court had previously held that voluntary intoxication can negate the specific intent to kill required by the crime of murder in the first degree, voluntary intoxication had not been available to defeat the specific intent element of other crimes. - The PA Court determined, however, that the defense of voluntary intoxication must be extended to all specific intent crimes. - Logically, since the prosecution must prove every element of an offense beyond a reasonable doubt, the Defendant must be able to produce relevant evidence to contest the intent element of the offense. Rule: Evidence of voluntary intoxication may be used to prove that the defendant could not have formed the requisite mental state for the crime committed. Class Notes on Graves - What is the underlying charge? Felony murder o Accidental homicide predicated on a felony (burglary) - The common law rule has always been that voluntary intoxication can be used to negate specific intent crimes but cannot be used to negate a general intent offenses, i.e. recklessness o There is an additional mental element on top of entering the house and taking the property - If given a voluntary intoxication instruction, the jury has to decide: o Whether D was intoxicated/intoxicated enough o Whether level/degree of intoxication negated his intent to commit a felony/enter a property - Base-line theory for not negating general intent offenses o Have to have mens rea o Recklessness began when you started drinking and continues through general intent crime to satisfy the mens rea
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Premeditation and Deliberation are in the category of voluntary intoxication Involuntary intoxication (p. 615): four recognized: coerced, pathological, innocent mistake, unexpected intoxication o If its involuntary: the way you became intoxicated rendered you not culpable and may have affected your free will Graves and his buddy did preconceive the plan to burglarized Trial court refused to instruct the jury on intoxication regarding the specific intent to commit robbery For first degree murder conviction, they were instructed on premeditation and deliberation o But it is implied that the trial court that it could consider intoxication in lowering from first degree murder to second degree murder If the jury was told to feel free to negate premeditation and deliberation with intoxication, but it does not apply to the burglary o Even though the jury had the ability to mitigate the offense, the jury just didnt give it to him

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TOPIC: DEFENSES: INSANITY; DIMINISHED CAPACITY; ROTTEN SOCIAL BACKGROUND

Why Do We Excuse the Insane: United States v. Freeman - You did it and satisfied all the elements but there is a reason - Analysis on excuses o Retribution: youre not morally blameworthy for the act if you have no control over your actions because of a mental disease o Utilitarian: you cant deter a person that doesnt know what theyre doing. There is no gain from punishing. - Why do we have an insanity defense to cover mental disease/defect at the time the crime was committed? o You cant deter o It is an excuse defense you did something wrong, but we know why you did it We understand the circumstances under which you developed the mens rea o Not morally blameworthy o Free will has been compromised by your insanity/disease Reason has been taken over and your choices are being driven by something else. This is an actus reus problem. Why does the public not like the insanity defense? - The public thinks it is easy to succeed and fake an insanity defense o Neither is true few use it and few succeed on it - Proof Issues: it is difficult to prove insanity - The victim doesnt get justice - Historically, societies have never been comfortable with mental illness o Reaction is to deny, denounce, or reject it - Today, soldiers are afraid of mentioning post traumatic stress disorder to their superiors because of the reactions they get o Not a physical limitation like losing an arm where you have point to it and show sympathy - Generally, the law doesnt like science and is reluctant to let it into the courtroom

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Original Law: MNaghten Rule **REVIEW p. 624-636 for Tests** - Jury should decide if: 1. Due to defect or reason or disease of the mind 2. Defendant did not know nature or quality of act OR Defendant did not know what he was doing was wrong - Example: o Not now know the nature or quality of act: Knew pulling the trigger and killing was wrong but didnt know it meant permanently and forever. o Not know what you were doing was wrong: Know it would kill someone forever but thought you were doing right thing saving humanity. - What are some problems with this test? o Relies on mental process only - doesnt address volitional/emotional component Knowing what youre doing is wrong but unable to stop yourself o Vague Irresistible Impulse Test - D acted from irresistible or uncontrollable impulse - Problems with this test: o Seemed to require a complete destruction of the governing power of the mind o Have to show self to be completely impaired at the time you committed the crime but there are other possibilities for committing the crime where people are completely calm and this test would not capture them o Implied suddenness or explosiveness but it is not necessary for an act committed in a legally insane state Durham Product Test - Was Ds act a product of mental disease or defect? - What is the problem with this test? o The term product was not defined for jury so they didnt know what to go by. What causal amount needs to be related to mental disease/ defect? o Expert testimony was taking the place of jurys deliberations Jury didnt know what was meant by product so they would just wait for the expert to explain it and then side with one of them MPC Section 4.01: Mental Disease or Defect Excluding Responsibility - A person is excused (not justified) for committing a crime if - Addresses the cognitive/volitional problem: has both options o Cognitive: rather than know something is wrong, D must appreciate that something is wrong and understand the consequences - The criminality (wrongfulness) of his conduct o You can know something is a crime and still commit it being insane. BUT, the problem is you dont know it is wrong. - Substantial capacity language: enables the jury to feel more comfortable with decision. Used like a sliding scale. o D appreciated well enough for us not to give him the benefit of the defense. 92

Judge Bazelon - Focus on justice: does D deserve to be condemned as criminal or mentally ill? - No matter what test you give them, the jury seems to apply this test o It doesnt seem/feel right to be held responsible Knowing/Appreciating the Wrongfulness of Ones Actions: State v. Wilson Facts: Victims son, Dirk, went to high school with Wilson. Wilson began to exhibit symptoms of a mental disorder manifested by a delusional belief that Dirk and his father, Jack, were destroying Ds life. D began calling the police asking for assistance in stopping the mind control conspiracy. D went to Jacks house. During a quarrel, D shot Jack several times with a semiautomatic revolver he bought 2 days earlier. D went to police and confessed. Procedural Posture: at trial, Wilson raised his mental illness as an affirmative defense. Jury rejected Wilsons claim of insanity and convicted him of murder 60 years in prison - Wilson argues that court failed to charge jury on moral component of wrongfulness o Cant be held criminally responsible if mental disease leads you to believe conduct is morally justified, even though know act is criminal (REFUSED) Issue: how should wrongfulness be defined? Was such an instruction necessary in this case in view of evidence presented at trial? Holding: D presented sufficient evidence to warrant an instruction defining the term wrongfulness in terms of societal morality Analysis: - Three features of the MPC test: o Cognitive and Volitional prong o Focuses on the Ds actual appreciation of, rather than merely his knowledge of, the wrongfulness of his conduct. Realize that conduct was wrong o Choice between: Wrongfulness or Criminality wrongfulness was offered as a choice so that any legislature, if it wishes, could introduce a moral issue into the test for insanity By choosing the word wrongfulness, not criminality, legislature intended to import this moral element into insanity statute - Wilson wants to define morality in personal terms D is not responsible for his criminal acts as long as his mental disease causes him personally to believe that those acts are morally justified o COURT: this view is inconsistent with MPC, judicial precedent, and assumptions underlying criminal law MPC: drafters intended moral element of wrongfulness be measured by Ds capacity to understand societys morality Jurisdictions have chosen a societal, rather than a personal, standard MN ghten test Policy: D should not be relieved of criminal liability if mental disease does not deprive him of substantial capacity to appreciate the boundaries of societal morality and if he elects to transgress those boundaries in pursuit of a personal belief system that he appreciates society would not accept - State contends that morality must be defined by societal standards D is not responsible for his criminal acts unless, because of mental disease, he lacks

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substantial capacity to appreciate that his actions were wrong under so ietys moral standards o COURT: overly restricts what legislature intended; renders morality and criminality synonymous COURT: Jury must look beyond the Ds appreciation of societys objective disapproval of his actions and to inquire whether the D, as a result of mental disease, truly believed that society, if it were aware of the circumstances as he honestly perceived them, would have condoned his actions.

Concurrence: - Wants to include people that adhere to their own moral code - the defense to apply to an individual who is mentally ill and because of that illness believes that societys rules do not apply to his or her actions Dissent: - Under majoritys formula for a jury instruction, a person who knows murder is wrong in the eyes of society and knows society does not share his perception that his victim needs to be killed may be excused if he believes, because of mental illness, that society would condone the killing if it, too, saw that need. Class Notes on Wilson - D knew his conduct was a crime but it was the right thing to do because he thought it was serving the greater good - D asked for the jury to be instructed on a subjective morality test. o If D thought what he was doing was right because of mental disease or defect, he should be excused. The judge refused. The judges instruction excluded someone who still has the capacity to know what he is doing is wrong. Jury did not give him the benefit of the defense. D appealed - Prosecution wanted the standard to say that for an insane D to get the benefit, the test of his moral wrongfulness should be an entirely objective standard under societys moral standard o If D is aware of societys disapproval, he should not get benefit of defense - D was deemed to be in the middle of the two categories this is where the appellate court found the appropriate place for the moral standard to be o Thought what he was doing was right; knew society disapproved; BUT, if society knew what he knew, society would approve. - Uniformity would be purely eroded by a purely subjective standard (like D wanted)

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Controversy Over the Role of Mental Health Experts in Criminal Trials - Balance between encouraging maximum informational input from expert witnesses and the preservation of the roll of the jury as trier of fact/ultimate decision maker - Mental health experts are neither moral experts nor social value experts Should the Insanity Defense be Abolished? - Two positions on abolition: o To curb unconscionable abuse of the insanity defense too many wrongdoers are escaping punishment o Most mentally ill defendants are being convicted despite the availability of the defense Employ psychiatric diagnosis after conviction to determine what sort of correctional treatment Diminished Capacity: Undiminished Confusion in Diminished Capacity - Diminished capacity could be easily covered by a duress defense - The diminished capacity doctrine allows a criminal defendant to introduce evidence of mental abnormality at trial either to negate a mental element of the crime charged, thereby exonerating the D of that charge, or to reduce the degree of crime for which the D may be convicted, even if the Ds conduct satisfied all the formal elements of a higher defense. - Two variants of diminished capacity: o Mens Rea Variant dominant approach in US o Partial Responsibility Variant - Mens Rea Variant o Not a special affirmative defense the defendant is merely introducing evidence of mental abnormality to show that D did not possess the required mens rea. o When I pointed the gun at that person and pulled the trigger, my conscious object was not to take that persons life because I thought he was a tree. The reason I thought he was a tree was because there is something wrong with me. o If the jury believes you, you dont have the necessary mens rea necessary for the commission of the offense. Not morally blameworthy - Partial Responsibility Variant (Actus Reus Variant) o D is claiming that, as a result of mental abnormality, he is not fully responsible for the crime proven against him. Even if the technical elements of an offense are satisfied, the D is less culpable and should be convicted of a lesser crime o When a legally sane D has impaired rationality or self-control because of mental abnormality, an argument for some form of lessened responsibility arises.
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o Extreme Emotional or Mental Disturbance/Adequate Provocation Because of the state I was in (not in control of faculties), you should partially excuse me Examples: just fired, family member killed, etc. Rotten Social Background (RSB) Defense - A recognized criminal defense based on socioeconomic deprivation o Blame is inappropriate when a Ds criminal behavior is caused by extrinsic factors beyond his or her control - Retributivist: punish because justice requires it - Deterrence: punishment prevents crime by making an example of the criminal; punishment functions as a threat/warning o Functions not really served by punishing a RSB defendant For deterrence to work, it must threaten the individual with loss of things he or she considers valuable. When an individual lives a miserable, impoverished life, he or she has little to fear from a deterrent. - There is a strong correlation between environmental adversity and criminal behavior - There is the argument that not everyone that grows up in a bad neighborhood does not become a criminal

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TOPIC: ATTEMPT: INCHOATE OFFENSES

Overview - Inchoate Defenses: deal with conduct that is designed to culminate in the commission of a substantive offense, but has failed in the discrete case to do so or has not yet achieved its culmination because there is something that the actor or another still must do. - Major function of the penal law in fashioning provisions addressing inchoate crimes: o When a person is seriously dedicated to commission of a crime, a firm legal basis is needed for the intervention of the agencies of law enforcement to prevent its consummation. There must be attention to the danger of abuse equivocal behavior may be misconstrued by an unfriendly eye as preparation to commit a crime On the other side, lines should not be drawn so rigidly that the police confront insoluble dilemmas in deciding when to intervene, if acing the risk that if thy wait the crime may be committed while if they act they may not yet have any valid charge. o Conduct designed to cause or culminate in the commission of a crime obviously yields an indication that the actor is disposed towards such activity, not alone on this occasion but on others. There is a need, therefore, subject again to proper safeguards, for a legal basis upon which the special danger that such individuals present may be assessed and dealt with. They must be made amenable to the corrective process the law provides. o When the actors failure to commit the substantive offense is due to a fortuity, as when the bullet misses in attempted murder, his exculpation on that ground would involve inequality of treatment that would shock the common sense of justice. - Inchoate offenses allow punishment of an actor even though he has not consummate the crime that is the object of his efforts. o Examples: attempt, conspiracy, solicitation - MPC prohibits an act that constitutes a substantial step toward the completed offenses. MPC lists several nonexclusive examples. - Because inchoate defenses are typically defined broadly and abstractly, the judiciary is vested with tremendous interpretative discretion.

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Attempt: General Principles - Merger Rule: a D cannot be convicted of both a completed offense and an attempt to commit it - The principal purpose behind punishing an attempt is not deterrence. The threat posed by the sanction for an attempt is unlikely to deter a person willing to risk the penalty for the object of the crime - Instead, the primary function of the crime of attempt is to provide a basis for lawenforcement officers to intervene before individual can commit a complete offense. - Criminal attempts are of two varieties incomplete and complete o Incomplete Attempts: actor does some of the acts that she set out to do, but then desists or is prevents from continuing by an extraneous factor, e.g. the intervention of a police officer Punishing because developed a moral blameworthy state of mind Utilitarian: stop others; deterrence Retributivist: blameworthy state of mind o Complete Attempt: the actor does every act planned, but is unsuccessful in producing the intended result, e.g. she shoots and misses the intended victim Punishing because Utilitarian: deterrence to others Retributivist: blameworthy state of mind; had the intent - Attempt adds an extra deterrence to the murder statute o Even if you try and dont follow through with it, you will be punished o Basis for intervening - The role of harm in criminal attempts: o If you dont go through with the crime, what harm have you done? Disrupts the social policy generally Trauma to that individual person o If one views deterrence as the proper function of the criminal law, a harm requirement is appropriate. However, if you punish nonharmful conduct, you weaken the stigma and deterrent effect of criminal conviction for harmful conduct. o If one views that the role of the criminal law Is to provide retribution, a harm requirement is also proper In the absence of harm, there is nothing for which to seek retribution - What is the justification for criminalizing incomplete attempts? o Prevention of the infliction of a prohibited harm o The law should authorize agents of law enforcement to intervene before the major harm is done - Modern retributivist theories purport to justify punishment if and insofar as it ends to restore an order of fairness which was disrupted by the criminals act

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o The offender deserves punishment because he has chosen to disturb this order in a prohibited way. The punishment is necessary so as to restore that order. o This general theory of just deserts is not sufficiently specific to be applied to the incomplete attempter. It can be developed in one of two ways: A harm based form of Retributivism would link the justification for punishment to the culpable causing of harm: both the justification for and the measure of punishment derive from the culpable causing of a prohibited harm. An intent-based form of Retributivism would start with the proposition that the technique of the criminal law is to impose on individuals in society various duties of self-restraint, in order to provide a basic security of person, property, amenity, etc. A person who voluntarily casts off this burden of self-restraint deserves punishment, in that he or she has used unfair means to gain an advantage over law-abiding citizens.

Mens Rea Issue p. 741 - Woman followed by man but nothing ever comes of it. She arrives safely at home. However, he is later arrested and charged with attempt to commit an assault with intent to rape. o In 1953 in Alabama, a black man doesnt get that close to a white woman If you were that close, you were planning on doing something serious o Intent can be inferred from the circumstances. The man must have been up to no good. White woman Black man

Mens Rea Required for a Criminal Attempt - There are two mens reas required for a criminal attempt o Standard mens rea o Mens Rea sufficient for conviction of the underlying crime - You must have the mens rea for an intentional killing because you cannot attempt to commit an unintentional crime. o Example: you cant have attempted felony murder o Example: you cant have attempted depraved heart killing because, by definition, depraved heart killing is unintentional - Can you have attempted statutory rape? o Can you attempt a strict liability crime? Yes; if it doesnt matter what knowledge you had as to a girls age, then the rule that requires you to have the highest mens rea for the substantive crime doesnt matter here Since, there is no knowledge of age required for the underlying crime, you only have to do some action in the
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direction of the offense to be convicted of attempted statutory rape.

Attempt and Mens Rea: People v. Gentry Facts: Gentry got into a fight with his girlfriend. He poured gasoline on her. She walked over to the stove and the gasoline on her body ignited. Gentry tried to snuff the fire out by placing a coat over the flames. Analysis: - Trial court defined all four culpable mental states for the crime of murder. - A person commits the crime of murder where he kills an individual if, in performing the acts which cause the death: o He intends to kill (practical certainty) OR o He intends to do great bodily harm to that individual (practical certainty of causing harm) OR o He knows that such acts will cause death to that individual (purpose or knowledge), OR o He knows that such acts create a strong probability of death or great bodily harm to that individual (depraved heart) - This included voluntary and involuntary crimes - Gentry contends that the inclusion of all the alternative states of mind in the definitional murder instruction was erroneous because the crime of attempt murder requires a showing of specific intent to kill o The inclusions of these states of mind permitted the jury to convict him of attempt upon a finding that he intended to harm Hill, or acted with the knowledge that his conduct created a strong probability of death or great bodily harm to Hill, even if the jury believed that Gentry did not act with specific intent to kill. - Court agrees that showing intent or knowledge that acts might result in death or great bodily harm is not enough o Finding a specific intent to kill is a necessary element of the crime of attempt murder Mens rea for the murder must be intentional To be convicted of attempted murder, you need a higher degree of mens rea than would have needed to be convicted of murder itself Why are the unintentional mens rea crimes off the table? o You cant attempt to commit an unintentional crime because attempt by definition is an intentional act or intentional crime - Court rejects States view because it makes no distinction between the mental state required to prove murder and the mental state required to prove attempt murder

Notes and Questions on Gentry - Criminal attempts involve two intents

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o First, the actor must intentionally commit the act(s) that constitute the actus resus of an attempt o Second, the actor must commit the act with the specific intention of committing the completed offense. This often becomes the key mens rea issue - Attempt is a specific intent crime must be purposeful/conscious goal Attempt and Mens Rea: Bruce v. State Facts: Three men, including Bruce, entered a shoe store armed with handguns and wearing masks. Bruce ordered owner to open the register but it was empty. Bruce demanded to know where the money could be found and was pointing the gun at the owners face. Owner was afraid and tucked his head down to get out of the way of the gun. In doing so, he banged into Bruce and he shot him in the stomach. Procedural Posture: jury found Bruce guilty of attempted first-degree murder Issue: whether attempted felony murder is a crime in MD Holding: Because a conviction for felony murder requires no specific intent to kill, it follows that because a criminal attempt is a specific intent crime, attempted felony murder is not a crime in MD Arguments: - Bruce argues that attempted felony murder was not a crime in MD - To secure a conviction for first-degree murder under the felony murder doctrine, the State is required to prove a specific intent to commit the underlying felony and that death occurred in the perpetration or attempt to perpetrate that felony o It is not necessary to prove a specific intent to kill - Under MD law, a criminal attempt consists of a specific intent to commit the offense couples with some overt act in furtherance of the intent which goes beyond mere preparation - You cannot attempt a felony murder. You cannot attempt the accidental killing that results from the commission of a felony.

Policy - Is there a good policy reason for holding attempted homicide to a higher degree of mens rea? o There is clearer harm and proof in the criminal homicide area - The difficulty with attempt crimes is that you never have a clear statement of intent o You are trying to infer both the actus reus and the mens rea from the attendant circumstances.

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When is it enough for the criminal law to hold someone criminally liable on the spectrum between preparation and a perpetration? - There is both a harm and morality blameworthy requirement - What are we worrying about when drawing this line? o We dont want to convict someone who has not done enough for the law to say you are morally blameworthy o If we let it go too far before we intervene and too close to the completed crime, we put society in danger - HYPO: p. 758-759: Anne wants to kill Bob o Where would you draw the line? Physical Proximity Test: when Anne was outside of Bobs house and hiding in bushes with a loaded gun in hand Abnormal Step Approach: putting ammunition in the gun at home The last thing left is the commission of the underlying crime - PROBLEM with common-law attempt law: decisions will be all over the place depending on what test the judge chooses to apply

Attempt: Actus Reus: United States v. Mandujano - Courts have tried to elaborate on the distinction between mere preparation and attempt. - Test from Coplon: o The person intending to commit the crime has done all that is within his power to do, but has been prevented by intervention from outside - Test from Mims: o Preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter - Test from Oviedo: o In order for a D to be guilty of a criminal attempt, the objective acts performed, without any reliance on the accompanying mens rea, mark the Ds conduct as criminal in nature. The acts should be unique rather than so commonplace that they are engaged in persons not violating the law - Test from Stokes: o Whenever the design of a person to commit crime is clearly show, slight acts done in furtherance of this design will constitute an attempt.

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Distinguishing Preparation from Perpetration: State v. Reeves Facts: Defendants (two 12 year old girls) spoke on the phone and decided to kill their homeroom teacher. Coffman brought rat poison to school so that the girls could put it in their teachers drink. Coffman told another student of the plan. The information was relayed to the principal. The principal called Coffman into the office and rat poison was found in her purse (poison never put in cup). Procedural Posture: Jury found that the girls attempted to commit second-degree murder. Issue: whether the defendants conduct constitutes a substantial step toward the commission of second-degree murder Holding: abandons the Dupuy rule because it undermines preventative goal Analysis: o Before the 1989 amendment to the law of criminal attempt, the State was required to present legally sufficient evidence of: o An intent to commit a specific crime o An overt act toward the commission of that crime o A failure to consummate that crime o The overt act requirement was the most problematic because it tried to draw a line between mere preparation to commit a criminal act, which did not constitute the required overt act, and a direct movement toward the commission after the preparations had been bade, which did. o Dupuy: pharmacist was performing illegal abortions. Although, he agreed to do the abortion, he never picked up an instrument or touched the woman. The court reversed his conviction because the element of attempt (overt act) did not appear. PROBLEMS: difficult/impossible to distinguish between mere preparation and the act itself; prohibiting law enforcement officers from taking action until after the actor is on the brink of consummating the crime endangers the public and undermines the preventative goal of attempt law o The new statute states that the conduct for a criminal attempt must constitute a substantial step toward the commission of the offense. o However, the Legislature left it up to the courts determination in each particular case as to how to define substantial step o Legislature looked to the MPCs criminal attempt section, which also provides for a substantial step requirement o Stare argues that the similarities between TNs criminal attempt code and that of the MPC evidences that the legislature attended to adopt the MPCs approach. Thus, two examples given by the MPC of conduct that constitutes a substantial step are applicable to this case. o Possession of material to be employed in the commission of the crime which
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can serve no lawful purpose o Possession, collection, or fabrication of material to be employed in the commission of the crime, at or near the place contemplated for its commission o Defendants argues that the legislature intended to preserve the sharp distinction between mere preparation and the act itself o To support this, the defendant asserts that the legislature failed to adopt the MPCs examples. Thus, defendants actions constitute mere preparation. o COURT: failure to include examples is evidence that the legislature did not intend on explicitly adopting the MPCs approach in its entirety. Rule: When an actor possesses materials to be used in the commission of ac rime, at or near the scene of the crime, and where the possession of those materials can serve no lawful purpose of the actor under the circumstances, the jury is entitled, but not required, to find that the actor has taken a substantial step toward the commission of the crime if such action is strongly corroborative of the actors overall criminal purpose. Concurring/Dissent: Action of two girls was not strongly corroborative of intent to commit second-degree murder (evidence insufficient as a matter of law). However, the Dupuy rule should be abandoned. Class Notes on Reeves - TN used to have an attempt rule that required the defendant had to be just about to commit the crime before it will constitute an overt act required for liability o TN revisited the rule and the legislature itself had adopted the MPCs attempt provision - BUT, how much did TN adopt from the MPCs provision? o TN didnt include the examples that the MPC decided should be enough to go to the jury Why did the MPC feel the need to list these things? Previously, each one of those examples had not gone to the jury under the common-law o MPCs response to some common-law decisions o Defendant argues: By not adopting the section of the MPC, the Legislature retained the power to withhold these examples from the jury Court rejects this because even though they didnt explicitly say they were sufficient, the legislature distinguished between mere preparation and the actual action enough for it to go to the jury - In addition to criminal purpose, the MPC drafters required that an act be a substantial step in a course of conduct designed to accomplish a criminal result, and that it be strongly corroborative of criminal purpose in order for it to constitute such a substantial step. o Shifts the emphasis form what remains to be done (the chief concern of the proximity test) to what the actor has already done. No finding is required as to whether the actor would probably have desisted prior to completing crime o Prove less of a hurdle for the prosecution problems of proof are dealt with by the requirement of corroboration
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The substantial step requirement would preclude attempt liability for relative remote preparatory acts

MPCs Provision on Attempt: 5.01 - 1(a) and 1(b) cover completed attempt crimes o 1(a): attempted conduct crime Tried to drive drunk but there was no gas DWI is a conduct crime harm is driving on roads drunk o 1(b): attempted result crime Aim and pull the trigger but gun misfires Homicide is a result crime - 1(c) covers incomplete attempts (you do everything you can but it fails) o Substantial Step - (2) conduct should not be considered a substantial step if it is no strongly corroborative of criminal purpose o Make sure whatever you are relying on to constitute a substantial step must not be extraneous or irrelevant evidence

HYPO: p. 774, #3 - On a rainy night, T descended the stairs from her second-floor bedroom at 3AM to check out the basement for flooding. As she did, she noticed J in dark clothing shining a flashlight into the familys van in the driveway. - Is this enough (substantial step) to convict him with attempted residential burglary and attempted vehicle burglary? o Maybe if he had gloves and tools to break in

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TOPIC: ATTEMPT IMPOSSIBILITY AND ABANDONMENT Three Kinds of Impossibility - Factual Impossibility o You wanted to commit a crime (mens rea) and did whatever is necessary to commit the crime (actus reus). BUT, because of something beyond your control and not within your knowledge, you could not commit the crime. o Example: Gun is not loaded; pick-pocketing an empty pocket o This is not a recognized defense because you still have developed the morally blameworthy state of mind and the only reason you didnt succeed was because of good-fortune/something beyond your control. o Exists when the Ds intended end constitutes a crime but she fails to consummate it because of a factual circumstance unknown to her or beyond her control Example: D is prosecuted for attempted murder after pointed an unloaded gun at someone and pulling the trigger, where the D believed the gun was loaded - Hybrid (Factual/Legal) Impossibility o You have an illegal goal but you are mistaken about the legal status of something/someone o Example: you receive goods that you think are stolen but they are not; shooting someone who is already dead o We want this person to be liable even if the crime wasnt commit because of the same reasons as factual impossibility (morally culpable and intended to commit crimes/did everything they could have done to commit the crime) o Exists if Ds goal was illegal, but commission of the offense is impossible due to a factual mistake by her regarding the legal status of some attendant circumstance that constitutes an element of the charged offense - Legal Impossibility o DEFENSE NO MATTER WHAT BECAUSE THERE IS NO STATUTE IN THE JURISDICTION THAT COMES CLOSE TO WHAT THE DEFENDANT WANTS TO DO o What you wanted to do (goal/purpose/motive) was not a crime even though you thought it was o Example: smoking in a bar in a state that does not prohibit it; getting a head start on hunting deer before season opens when there is no defined period of when you can hunt deer in the state o Because of the legality principle, we cannot punish you because there is not statute criminalizing the behavior

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You developed a morally blameworthy state of mind but we cannot punish because this blameworthy state is not recognized by the criminal law o Exists if the criminal law does not prohibit Ds conduct or the result that she has sought to achieve. In other words, this concept applies when an actor engages in conduct that he believes is criminal, but is not actually prohibited by law Special Defenses: Impossibility: People v. Thousand Facts: Undercover officer was posing as an underage girl on the internet and chatting with a 23-year old man. Man wanted to meet with the girl and sent her pictures of male genitalia. There was an arrangement to meet in the McDonalds parking lot and the knew that she was underage, because he asked if she could pass for older than 16. Issue: whether the doctrine of impossibility provides a defense to a charge of attempted distribution of obscene material to a minor - Impossibility is when, because of the defendants mistake of fact or law, his actions could not possibly have resulted in the commission of the substantive crime underlying an attempt charge o Despite evidence of criminal intent, defendant cannot be prosecuted for the completed offense because proof of at least one element cannot be derived. - Because Bekka was, in fact, an adult, an essential requirement of the underlying substantive offense was not met (dissemination to a minor), and therefore it was legally impossible for D to have committed the crime Procedural Posture: case dismissed b/c it was legally impossible for D to have committed the charged offenses since the existence of a child victim was an element of offense Analysis: - Is it factual or legal impossibility? Look at statute (p. 787) o This is factual impossibility and it was incorrect to dismiss this because of legal impossibility - Is this correct under our analysis? o YES, he was morally blameworthy and had the intent to commit a crime prohibited by law - This Court never recognized impossibility as a valid defense to a charge of attempt. So, Court must look to the statute defining attempt as o An attempt to commit an offense prohibited by law, and o Any act towards the commission of the intended offense o (Includes an intent to do an act or to bring about a certain consequence which would in law amount to a crime; and an act in furtherance of that intent which goes beyond mere preparation) - Is this correct under their analysis: o Yes, it was an attempt to commit an offense prohibited by law o Yes, acted towards the commission of the offense by sending the pictures to an underage girl - D is not charged with distributing obscene material to a minor because D could not be convicted of that crime because D distributed material to an adult man. o Instead, D is charged with attempt to distribute obscene material to a minor. Requires only that the prosecution prove intention to commit an
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offense prohibited by law, coupled with conduct toward the commission of that offense. Dissent: TAKES PROBLEMATIC APPROACH - The fact that the it would have been impossible to have committed the completed offense is relevant. o If an element of the offense cannot be established, an accused cannot be found guilty of the prohibited act. Special Defenses: Abandonment: Commonwealth v. McCloskey Facts: D was serving a 1-3 year sentence for larceny. Guard heard the alarm go off that indicated that someone was attempting to escape in the recreation area of the prison. After conducting a search of the area where alarm had been tripped, guards found a piece of cut barbed wire and a laundry bag filled with civilian clothing. All bags used by the prison are marked with a different number for each prisoner. A check revealed that the bag belonged to the D. D told guard that he was gong to make a prison break but changed his mind. Issue: whether the Ds voluntary abandonment of plan to escape from jail is a defense to attempted prison break Holding: Yes; D never left prison compound and only contemplated the act. He never attempted the act and was thus in a position to abandon the criminal offense of attempted prison breach voluntarily. Concurring: The Defendant did adequately voluntarily abandon his escape, thereby exonerating himself from criminal responsibility. However, the majority incorrectly states that the Defendant had not yet attempted the act of escape. When the Defendant snipped the barbed wire and crossed the inner fence, he was beyond preparation and into attempted escape. Class Notes on McCloskey - Developed the intent to escape, packed a bag of clothes, crossed the first fence - Under our substantial step analysis of an incomplete attempt, would the Ds actions be sufficient to constitute a substantial step? o YES, the concurring opinion has it right o The proper analysis is first to decide whether it was a substantial step (most people would agree that getting halfway there is far enough). o It was not mere preparation. He abandoned his criminal attempt and THIS is an affirmative defense. - What is the purpose of this doctrine? o You want to encourage people to desist even when you are close to committing the crime - For abandonment to be effective it has to be o Voluntary Not voluntary if you stop because probability of detention/apprehension got greater (not a moral change of heart if you choose not to go through with it because more cops are there) o Complete Not complete if you are going to try again at a later time Example p. 801 - A would-be rapist desists from having intercourse because the victim tearfully told
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him that her young daughter would be home from school soon and that she is all her daughter has since her father is dead. o Is this voluntary and complete? No, not a change of heart; too much info - Victim convinced him that he could be her bf instead of raping her o Is this voluntary and complete? No, not if he was postponing/delaying - Victim was pregnant. o Is this voluntary and complete? TOPIC: OTHER INCHOATE CRIMES STALKING, ASSAULT, SOLICITATION, AND CONSPIRACY Punishing Pre-Attempt Conduct - The inchoate offenses of solicitation and conspiracy punish specific types of preparatory conduct (conduct that has not yet reached the attempt stage). Stalking - Defined: the willful, malicious and repeated following and harassing of another person; a course of conduct directed at a specific person that involved repeated (2+ occasions) visual or physical proximity, nonconsensual communication, or verbal, written or implied threats that would cause a reasonable person fear - When does courtship turn into stalking? o When the D does something that should cause a reasonable person fear Example: the act of D watching the victim leave work Assault - Defined: o Attempt to commit a battery (physical injury) OR Should fall within the same range as substantial step o Intentional Apprehension Creating in someone a reasonable fear of imminent bodily harm Have to commit more acts and be closer to the completed crime to incite fear Solicitation - Solicitation involves the asking, enticing, inducing, etc of another to commit a crime o The solicitor gives the criminal idea and furthers its commission via another person by suggesting to, inducing, or manipulating that person. - A solicitor may be more dangerous than a conspirator o A conspirator may merely passively agree to a criminal scheme, while the solicitor plans, schemes, suggests, encourages, and incites the solicitation - Further, the solicitor is morally more culpable than a conspirator because a solicitor keeps himself from being at risk by hiding behind the actor - Solicitation is a controversial crime because the offense is complete as soon as the solicitor asks, entices, or encourages another to commit the target offense o A solicitation may consist of nothing more than an attempt to conspire with another to commit an offense - Merger o The offense of solicitation merges into the crime solicited if the latter
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offense is committed or attempted by the solicited party If A solicits B to murder C, and B refuses, A is guilty of solicitation If B agrees and kills or attempts to murder C, A is guilty of murder or attempted murder, respectively, rather than of solicitation If B agrees, but is arrested before the attempt, A and B may be prosecuted for conspiracy to commit murder. As solicitation would merge into the conspiracy. Solicitation: State v. Cotton Facts: Ds 14 year-old stepdaughter moved in with him at his New Mexico home. After an investigation of alleged misconduct involving the defendant and his stepdaughter by Human services, defendant was arrested and charged with multiple counts of criminal sexual penetration of a minor and criminal sexual contact of a minor. While awaiting trial, D wrote letters to his wife in Indiana requesting that she persuade his stepdaughter to not testify at trial or to leave the state so that she would be unavailable to testify. Rather than mail the letter, Ds cellmate gave the letter to law enforcement authorities. D wrote another letter urging his wife to do the same, but she never received this letter either. Procedural Posture: D was convicted of soliciting the felony of bribery/intimidation of a witness and soliciting the felony of custodial interference. Issue: Can a conviction on a charge of solicitation be upheld where the person intended to be solicited never receives a communication from the solicitor? Holding: NO NM Statute: A person is guilty of criminal solicitation if, with the intent that another person engage in conduct constituting a felony, he solicits, commands, requests, induces, employs or otherwise attempts to promote or facilitate another person to engage in conduct constituting a felony. Arguments: - D argues that the record fails to contain the requisite evidence to support the charges of criminal solicitation because Ds wife, the intended solicitee, never received the two letters. - State argues that proof of Ds acts of writing the letters, attempts to mail or forward them, and proof of his specific intent to solicit the commission of a felony constitutes sufficient evidence o COURT: No, conviction for solicitation reversed. - The court discussed the differences between New Mexicos statute and the solicitation provisions adopted by the Model Penal Code. o New Mexicos legislature, when drafting their own solicitation section, specifically omitted that portion of MPC declaring that an uncommunicated solicitation to commit a crime may constitute the offense of criminal solicitation. Omission by legislature indicates an intent to require some form of actual communication from the D to the solicitee indicating the subject matter of the solicitation before a solicitation conviction may be upheld. Class Notes on Cotton - Why would the MPC criminalize an uncommunicated solicitation? o Developed a morally blameworthy state of mind and acted on it
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Under a reading of the statute, is the majority right? o He is guilty because he did attempt to solicit by writing the letter and attempting to send it to the wife Where does solicitation fall on the sliding scale between 0 and a completed crime? o Toward the low end (close to 0) because the other person can say NO What is an attempted conspiracy? o A SOLICITATION What completes a conspiracy in some jurisdictions? o It is enough to complete a conspiracy as soon as there is an agreement o However, some jurisdictions require an overt act Why is there a separate crime for solicitation? Why is it both a completed crime and an inchoate crime? o Collective agreement/partnership in crime is socially reprehensible conduct Increases the likelihood that the crime will be committed Counterargument: harder to coordinate More sophisticated and more harm done when there are more people Counterargument: harder to coordinate, increases the likelihood of detection Presents a greater potential threat to the public than individual delicts Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality Makes possible the attainment of ends more complex than those which one criminal could accomplish Makes more likely the commission of crimes unrelated to the original purposes for which the group was formed. o Counterarguments to the supposed greater harm arising from conspiratorial relationships: Assumed dangers have never been verified empirically Combination cannot be inherently dangerous since our own society is grounded in organization and agreement More participants means a greater chance the plan will be leaked More participants means more chances that persons involved will share either uncertainties and dissuade each other Why is conspiracy a favored tool by prosecution? o It makes the crime look more serious o Tacks on another deterrent o Allows prosecutor and conviction more easily Prosecution can get Ds on something without proof of the substantive crime These conspiracy crimes are just as serious as the underlying substantive crimes o Allows intervention sooner and easier than attempt

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Conspiracy: General Principles - Defined: mutual agreement/understanding, express or implied, between two or more persons to commit a criminal act/to accomplish a legal act by unlawful means. - The crime is complete upon formation of the agreement o It is not necessary to establish any overt act in furtherance of the conspiracy as a component of the crime o Conspiracy is a crime that is separate and distinct from the substantive crime that is its object o The guilty or innocence of a conspirator does not depend upon the accomplishment of the goals of the conspiracy o A conviction of conspiracy does not merge with a conviction of the completed offense D may be convicted and punished for both the conspiracy and the substantive crime - A twofold specific intent is required for conviction o Intent to combine with others; AND o Intent to accomplish the illegal objective - Rationale of the crime o Conspiracy has been employed to fill the gap created by a law of attempt too narrowly conceived Where, in order to constitute attempt, preparation has had to proceed so far toward actual commission of a crime as to itself create an intolerable danger to society, conspiracy has entered the breach and provided an opportunity for earlier official intervention o Conspiracy has been used to combat the extraordinary dangers allegedly presented by multi-member criminal undertakings Vague definition and loose procedural requirements

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Conspiracy: Pinkerton v. United States Facts: Daniel conspired with his brother Walter, but he did not aid and abet in the commission of the substantive offenses. Walter is the one who committed the actual substantive crime and there was no evidence to support Daniels conviction of the substantive crime. Procedural Posture: both Ds were charged with conspiracy to commit crime and with substantive charges and both were convicted. Daniel appealed o Daniel argues that he should not be convicted for the substantive offense because he did not commit the crime himself Issue: Should a defendant be held liable for a substantive crime committed by his partner in furtherance of a conspiracy in which both of the defendants were involved? Holding: Yes Rule: An overt act of one partner may be the act of all without any new agreement specifically directed to that act. Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective. Analysis: o The court held that if a person joins a scheme to commit a crime and he has picked partners for his scheme, he is liable for the actions of his partners until his scheme is still in process. o The court further answered the defendant's argument that he did not have criminal intent by stating that "criminal intent to do the act is established by the formation of the conspiracy." o There was no clear evidence that Daniel had withdrawn from or revoked the agreement Class Notes on Pinkerton - Why is it that the famous Pinkerton rule o Co-conspirators, whether or not they participated in the substantive crimes, are liable for any crimes committed were committed in furtherance of the conspiracy (moving toward the goal of the conspiracy) or within the scope of the conspiracy. Relationship to the conspiracy that were reasonably foreseeable based upon the agreement they had

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Conspiracy: Mens Rea: People v. Swain Facts: Victim was killed during a drive-by shooting. Defendant Chatman admitted to firing shots but only wildly and in self-defense. Defendant Swain boasted to jailmates about shooting the victim, but at trial, he testified that he had left the van before the drive-by. Procedural Posture: jury made a finding that both Ds were guilty of conspiracy of murder in the second degree Issue: whether intent to kill is a required element of the crime of conspiracy to commit murder; does conviction of conspiracy to commit murder necessarily require proof of express malice the functional equivalent of intent to kill or can one conspire to commit implied malice murder (i.e. murder lacking an intent to kill)? Analysis: - D argues that jury should have been instructed that proof of intent to kill is required to support a conviction of conspiracy to commit murder - Conspiracy is a specific intent crime that requires two elements: o The intent to agree or conspire AND o The intent to commit the offense which is the object of the conspiracy Prosecution must show that the conspirators intended to commit the elements of that offense Class Notes on Swain - Why cant you have conspiracy to commit second-degree murder? Why cant you have it under the instructions given in Swain? o You cant conspire to do something unintentional just like you cant attempt to do something unintentional o Attempt and conspiracy are specific intent crimes because they require a preliminary purpose to do something - In the Swain case, the jury was given the option to find the underlying substantive crime of second-degree murder (which they shouldnt have been given)

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Conspiracy: Mens Rea: People v. Lauria Facts: Police were investigating illegal call-girl activity. Many girls were utilizing D's telephone answering service to get jobs. D admitted that he knew some of his customers were prostitutes. D was indicted for conspiracy to commit prostitution. Here, the People attempted to establish a conspiracy by showing that D, well aware that his codefendants were prostitutes who received business calls from customers using his telephone service, continued to furnish them with such service. Issue: Under what circumstances does a supplier become a part of a conspiracy to further an illegal enterprise by furnishing goods or services which he knows are to be used by the buyer for criminal purposes? Holding: In order to make a supplier a participant in a criminal conspiracy, two elements must be present: o The element of knowledge of the illegal use of the goods or services AND o The element of intent to further that illegal use of the goods/services Analysis: o It seems apparent that a supplier who furnishes equipment which he knows will be used to commit a serious crime may be deemed from the knowledge alone to have intended to produce such result. However, when the underlying crime is a misdemeanor, this reasoning does not work. o D took no direct action to further, encourage, or direct the activities of the prostitutes. He had no special interest in the activities. o There were no excessive charges, the service had a legitimate use, and there was not an unusual quantity. Class Notes on Lauria - There is no doubt that Lauria has the mens rea needed he had knowledge and was certain that prostitutes were using his service because he had used their services. - What is the policy problem of holding Lauria liable? o We dont like to convict individuals for conspiracy based on knowledge because anything can be used for illegal purposes Infinite number of cases Individuals have to act like police If you could be convicted on the basis of knowledge for conspiracy, individuals would be too afraid of criminal liability to conduct business (commerce/industry drives our capitalist society) - We want to draw the line between mere knowledge and actually furthering the act/acquired a stake in the venture - Knowledge would be enough if it is accompanied by: o Volume of profits from the illegal activity is so high that the person is relying
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o o o o

on it as the major part of its business (business depends on illegal activity) Volume disproportionate to any legitimate demands The supplier of the legal goods for illegal use has acquired a stake in the venture. No legitimate use for the goods or services exists. Dangerous products

Defendant is guilty of conspiracy if: 1) D knows of offense AND 2) Either a) Intends to participate (has the purpose that the crime occur) OR b) The crime is very harmful OR c) He has a stake in the crime, meaning - He charged criminals above market prices (shares in proceeds) - He derives the bulk of his profits from the ventures (with the aim of supplying the criminals) - There is no legitimate purpose for the type of goods supplied OR - There is no legitimate purpose for the volume of goods supplied

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TOPIC: ACCOMPLICE LIABILITY LIABILITY FOR THE CONDUCT OF ANOTHER

Common Law Terminology and Its Significance: State v. Ward - A principal in the first degree is one who actually commits a crime, either by his own hand, or by an inanimate agency, or by an innocent human agent - A principal in the second degree is one who is guilty of felony by reason of having aided, counseled, commanded, or encouraged the commission thereof in his presence, either actual or constructive - An accessory before the fact is one who is guilty of felony by reason of having aided, counseled, commanded, or encouraged the commission thereof, without having been present either actually or constructively at the moment of perpetration - An accessory after the fact is one who, with knowledge of the others guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment - An accessory cannot be tried, without his consent, before the principal - An accessory cannot be convicted of a higher crime than his principal Notes and Questions on Ward - Two additional felony principal-accessory distinctions: o An accessory could only be prosecuted in the jurisdiction in which the accessorial acts took place, rather than where the crime occurred. o D charged as an accessory could not be convicted as a principal, and vice versa. - Today (MPC): o Nearly all stated by legislation have done away with the common law distinction between principals and accessories before the fact o Ds who were characterized as accessories before the fact typically may now be tried and punished w/o regard to the status of the principals prosecution o An accessory after the fact is no longer treated as a party to the crime committed by the principal in the first degree, but rather is subject to prosecution for a separate and lesser offense, such as misprison or hindering apprehension or prosecution. Theoretical Foundations: Derivative Liability - An accomplice is not guilty of the crime of aiding and abetting, but instead is guilty of the substantive offense committed by the perpetrator because of the accomplices complicity in the crime. - Liability requires action by the secondary actor that makes it appropriate to blame him for what the primary actor does

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Class Notes - Modern approach does not distinguish between liability of principal and of accessory before the fact both convicted of substantive crime - The accessory after the fact was not involved in the planning or in the substantive crime lesser degree of moral blameworthiness/culpability

Elements of Accomplice Liability: State v. Hoselton Facts: The only evidence that was able to link the D with the crime was the Ds own voluntary statement. When asked if he was acting as a lookout, the D replied, you could say that. Rule: This court has consistently held that lookouts are aiders and abettors and, as such, are principals in the second degree. Further, an aider and abettor, or principal in the second degree, must in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seeks by his action to make it succeed. o D cannot be labeled a lookout when he lacks the requisite intent to commit crime Analysis: o A lookout is one who is by prearrangement, keeping watch to avoid interception or detection or to provide warning during the perpetration of the crimes and thereby participating in the offenses charged. o State must establish evidence that D acted with the requisite act and mental state to support a conviction of aiding and abetting o In both his voluntary statement and during his testimony at trial, the D stated that the had no prior knowledge of his friends intentions to steal anything from the barge o When he heard the door open to the storage unit and saw his friends removing the goods, he left the barge and returned to the car o D never received any of the stolen property Conclusion: State did not prove D was a lookout Class Notes on Hoselton - On appeal, the lawyer raised the issue that although the D said he was acting as a lookout, there was no evidence that he was acting as a lookout - On what part of aiding and abetting did Ds conviction fail on? Was it actus reus or mens reas? BOTH o No actus reus aiding, encouraging, facilitating Did not do anything to help them o No mens rea Did not know friends were stealing MPC on Accomplice Liability - Two requirements: o Intent o Act in direction of committing the crime - Provides that a person may be guilty of an offense by his own conduct (direct
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accountability) and/or by the conduct of another person for which he is legally accountable (indirect accountability) MPC gives three ways in which indirect accountability may arise: o To be an accomplice of such other person in the commission of the offense

HYPOS p. 866 A. Kevins friends told him to wait in the car while they entered the barge. They falsely told Kevin (who believed their claims) that they were entering in order to pick up a television set the barge owner borrowed from them a. NO, neither had actus reus nor mens rea B. Kevins friend falsely told him that they had come to the barge just to fool around. They asked him, and he agreed, to stay in the car and honk if he spotted the police. He spotted a police officer and honked. His friends hurried out of the barge, but were caught before they could escape. a. Technically, he committed the actus reus but he didnt have the mens rea for them to commit that crime or any other crime. He had no idea that they were committing a crime. C. Same as (B), except that Kevin knew that his friends intended to steal property from the barge. His friends did not ask him to do anything, but he helped them by honking the horn when the police arrived. a. D. Same as (C), except that when he honked the horn, his friends did not hear him and were arrested by the police in the barge. a. The fact that they didnt hear him honk does not change anything. He did it with the intent to facilitate the crime. Even if the attempt failed, he did what he could to facilitate the crime. E. Same as (B), except that his friends told him the truth, i.e. that they had come to steal items from the barge. No police officer arrived, so Kevin did not need to honk the horn. a. Facilitated the crime because they knew they had a guy in the car acting as a lookout F. Same as (A), except that Kevin knew what his friends intended to do. While waiting in the car, he observed a telephone nearby, considered calling the police, but declined to do so. a. Neither actus reus nor mens rea. He did not do anything and did not have a duty to stop them. Actus Reus - In most multi-party prosecutions, the actus reus component of accomplice liability is clear cut e.g. the secondary party solicited the offense, furnished an instrumentality used in the commission of the crime, or provided other significant active aid in the perpetration of the offense - However, difficult issues of fact and policy arise when the secondary partys participation is relatively slight of when the government seeks to hold her
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accountable for her omissions, rather than for her conduct

Issues with Actus Reus for Accomplice Liability: State v. Vaillancourt Facts: D goes with his buddy to burglarize a house. They chat on the porch and ring the doorbell for 10 minutes. Meanwhile, his buddy is trying to pry open a basement window. Neighbor was suspicious and called the cops. D was standing there watching and chatting. Analysis: - Have to prove intent and something that aided and assisted the crime Rule: knowledge and presence is not enough. You need active participation. It would unduly burden human conduct. Issues with Actus Reus for Accomplice Liability: Wilcox v. Jeffery Facts: Issues with Actus Reus for Accomplice Liability: State v. Helmenstein Facts: Five of the kids decide to testify against the D because it was his car. What is the policy reason for not allowing someone to be convicted on the basis of solely accomplice or co-conspirator testimony? - They can all get together an pin it on the least culpable person

COMMON LAW 1) Gives assistance or encouragement 2) With intent thereby to promote or facilitate commission of the crime

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TOPIC: CULTURAL DEFENSE; EUTHANASIA/ASSISTED SUICIDE

Cultural Defense: State v. Kargar - Should ones good-faith belief in the propriety of specific conduct, which is based on ones cultural upbringing, negate or mitigate the actors criminal responsibility? Facts: Kargar kissed the genitals of his eighteen-month-old son, which is an acceptable practice in his culture. He was indicted for two counts of gross sexual assault. He moved to dismiss the case based on the de minimis statute, which basically gives courts reasonable flexibility in administering criminal statutes in unusual cases. His motion was denied and he was convicted. He appealed on the basis that his motion should have been granted. Issue: Should the charges against Kargar be dismissed based on a cultural defense? Rule: If the admittedly criminal conduct was not envisioned by the legislature when it defined the crime, it might not be punishable under the de minimis statute. Analysis: - Factors for a de minimis analysis: o The background, experience and character of the D which may indicate whether he knew or ought to have known of the illegality; the knowledge of the D of the consequences to be incurred upon violation of the statute; the circumstances concerning the offense; the resulting harm or evil caused or threatened by the infraction; the probate impact of the violation upon the community; the seriousness of the infraction; mitigating circumstances; possible improper motives of the complainant or prosecutor; any data which may reveal the nature and degree of the culpability in the offense committed by the D Trial court denied Kargars motion without considering the full range of relevant factors The focus must be on whether the admittedly criminal conduct was envisioned by the Legislature when it defined the crime - The court looks at the legislative history of the gross sexual assault statute and finds that it specifically excluded certain innocent contacts not done for sexual gratification or to cause harm. o Evidence presented supports the conclusion that there was nothing sexual about Kagars conduct - The court finds that if the legislature had been aware of the conduct in question in this case, it may have been excluded as an offense. Conclusion: The conviction is overturned.

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Class Notes on Kagar - Is there a problem with this conclusion? o You can read the legislative history differently to find that the legislature did not otherwise believe there should be any innocent version of this actus reus They took it out of the statute, meaning they wanted to make it illegal - As a matter of social policy, is this the correct result? o Slippery slope We are going to defeat the uniformity/consistency of the criminal law. o Results that we find morally apprehensible may make their way into the law - What is the function of this statute? What is the social harm of this act? o We dont like it when adults have this sort of conduct with children because you are disrupting their psychological, sexual, and social development This decision argues that this sort of social harm didnt happen here o It is inappropriate for a child to have sexual contact until a certain age o It is wrong for an adult to do something to a child that the child cant even understand

The Cultural Defense in the Criminal Law - There are two situations where the strict application of the law might be unfair to a person raised in a foreign culture: o Such a person may have committed a criminal act solely because she was ignorant of the applicable law Should be viewed as a vindication of the principles of fairness and equality that underlie our justice system o An ordinarily law-abiding person raised in a foreign culture may have committed a criminal act solely because the values of her native culture compelled her to do so. - Individualized justice - We rely on multiculturalism in our society o It is hard to not allow some leeway in our system

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Euthanasia: Introduction - Euthanasia is not a formal defense in the US Euthanasia: Latimer v. The Queen Facts: 12-year old had cerebral palsy, which required a lot of surgeries. Father thought a particular surgery would call considerable pain and be mutilation. Deciding that her life was no longer worth living, the father put daughter in car with hose from exhaust and killed her from carbon monoxide intake. Analysis: - Three elements that must be present for the defense of necessity: o An urgent situation of clear and imminent peril It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur o No reasonable legal alternative to disobeying Is there a better way of solving this emergency situation? o Proportionality between the harm inflicted and the harm avoided - Courts analysis of this case under the three elements o No clear and imminent peril because when was not terminally ill Counterargument: she is dying as we speak o He could have continued on, leaving the difficult situation as is o Killing a person to relieve the suffering of a manageable medical condition is not a proportional response to the harm represented by the non-lifethreatening suffering resulting from that condition - It was correct not to go to the jury - Second-degree murder conviction stands Class Notes on Latimer - Is this the right decision? o

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