OUTLINE FOR CRIM LAW I. Punishment A. Retributivism 1. Individual 2. Sense of just deserts a) US v.

Bergman doctor convicted of defrauding a nursing home. Court would not let him have a punishment of philanthropic work, though this would help society more, because he deserved some punishment, and doing what he already liked doing wouldnt be punishment. 3. Backward-looking 4. Ideas of self-restraint, the inability for a society to function if some give in to their animal instincts 5. Not for the victims only, but an expression of societal condemnation? B. Utilitarianism 1. Balance pleasure/pain calculation (from Bentham) a) Criminals calculate b) Society calculates (1) US v.Johnson woman convicted a crime, but had a stable home for 4? Children. Court punished her to house arrest, as they did not want 4 innocents to suffer for 1 persons crime. 2. Forward-looking; used to improve society 3. Deterrence a) Criminals rationally calculate - If threat of pain is greater than possible pleasure, they wont act (Bentham, Posner) (1) US v. Bergman doctor defrauded nursing home patients. Gave him a sentence to deter other greedy folks, though it recognized that he probably wouldnt try to do it again and was not a danger to anyone.. b) If violence is inherently irrational, then they wont calculate (Gilligan) c) Punishment must fit the crime. (1) If the punishment is too great, then it will deter rational innocent actors for anything associated with the activity, even legal action.

(2) That is cost on society that is greater than the benefit of deterring criminals. d) Certainty is better than severity (1) As important to appear effective as to be effective (2) Increasing severity too much may decrease percentage of convictions e) Use of stigma as a deterrent (1) Effective (2) Goes against the democratic concept of allowing courts to determine (and regulate) punishment 4. Incapacitation a) Society is better if the streets are safe b) Selective incapacitation (1) Should repeat offenders then be locked up preemptively? (2) They are more likely to commit again (3) Not certain they will just deserts & retributivism fight back. (4) US v. Jackson man who was repeat offender for bank robbery was sentenced to life in prison. Posner concurred with sentence based on the law, but commented that this was too severe, as bank robbery is generally a young mans crime, and 20 years would be fine to deter another attempt. 5. Rehabilitation a) Want to make the offender safe to return to the streets b) Want to make the prisoner a better person (1) Paternalistic? (2) State v. Cheney Supreme Court of Alaska criticized the leniency of the sentence on a first-time rapist, because without punishment he would not understand the gravity of his offense and be reformed.

6. Strengthening morals of the public a) Idea that punishment of some leads to strength of public faith in law-abiding conduct b) Society condones social norms c) Circular reasoning if society believes that the criminal law system is just, then they strengthen their beliefs in the moral norms of society. As they strengthen those beliefs, then they have faith that a law system condemning morals outside the norm is a just system. II. Culpability 1. What is it? D must commit: a) A voluntary act (or omission) b) That causes c) Social harm d) With a culpable mental state B. Actus Reus 1. Voluntary a) 2.01 A person is not guilty of an offense unless the liability is based upon conduct which includes a voluntary act or the omission to perform an act of which he physically capable. b) MPCs voluntary requirement is RETRIBUTIVE we wouldnt care whether it was or not under utilitarian ideas. c) The voluntary requirement is not usually explicitly written in the statute, but judges assume it is. d) Drunk (1) Martin v. State drunk man was taken from his home by the cops to a public space, and then arrested for public drunkenness. Held, thanks to the word appear in the statute, that the appearance had to be voluntary. 2.01(2)(d) (2) Winzar v. Chief Constable of Kent drunk man taken by the police out of a hospital where he was sleeping in the corner, placed in their car, then charged with being drunk on the road. As the statute said only being found drunk, he was convicted. e) Unconscious (1) Can be a complete defense under the MPC 2.01(2)(b)

(2) People v. Newton man claimed not to remember anything at all from when he was shot until when he woke up in the hospital. Officers charged defendant had shot one of the officers. Expert witness testimony was used f) What the MPC doesnt count: (1) Doesnt remember (2) Couldnt help it (3) Unintentional (4) Habit g) What the MPC will take as involuntary: (1) Involuntary possession 2.01(4) (2) Hypnosis2.01(2)(c) (3) Sleep-walking 2.01(2)(b) (a) Cogden case woman killed daughter while having a nightmare. Psychiatrist testimony about mental disorder and sleep-walking problem got her acquitted. h) Legal insanity is NOT involuntary. It can be an excuse, though. i) If a person knows they are prone to involuntary acts, they can be convicted of criminal negligence (epileptic driver) People v. Decina j) Duress can be involuntary. Common law, or 2.09?

k) Under common law, treason allows words to be a voluntary act. l) Status is not a voluntary act (1) Retributivist concept society would be better without criminals on streets. But if theyre not caught doing the illegal act, then retributively they do not deserve punishment. (2) Robinson v. California S.C. reversed a conviction of a drug user for being a drug user based on the marks on his arms, though he was not caught using, or even in possession, or drugs. (3) Powell v. US man tried to reverse conviction for being drunk in a public place on the basis of the disease of alcoholism. Didnt succeed because he could not factually prove alcoholism was his problem, and that alcoholism was not widely accepted as a disease.

2. Omissions a) 2.01 A person is not guilty of an offense unless the liability is based upon conduct which includes a voluntary act or the omission to perform an act of which he physically capable. b) 2.01(3) Liability for commission of an offense may not be based on an omission unaccompanied by an action unless: -the omission is expressly made sufficient by the law defining the offense; or -a duty to perform the omitted act is otherwise imposed by law c) 4 exceptions (US v. Jones, DC Circuit): (1) Certain relationship (parent) (2) The person has assumed a contractual duty (3) Where a statute imposes it (4) Where one has voluntarily assumed care, and then taken the victim to a place where no other person could administer help. (5) If you start to help, you have a duty to continue Where is this from? d) Presupposed duty of a mother to care for her child - Pollock e) Bystander indifference (1) Pope v. State woman watched a mother kill her child, did not stop her. Was acquitted of murder and child abuse. Morally reprehensible, but not legally wrong. (2) Jones v. US family friend allowed a child to die of malnutrition, when clearly had the means to feed it. Still acquitted with no legal duty to care didnt fall under any one of the 4 exceptions. (3) When there is a larger group, there is more tendency not to help. People are afraid they will do more harm than good, or be suspected of being involved. f) Good Samaritans (1) Almost all nations have laws except Anglo-American (2) US fears losing individual liberties. Why? (3) Case about the boy at Berkeley who watched his friend kill a girl again, morally repugnant but not illegal.

g) Up at the 4 requirements for a crime listed above, its not clear that an omission CAUSES the harm. h) Medical omissions (1) Taking someone off life-support is a voluntary omission and not legally culpable in most states. (a) State v. Barber: Two physicians unplug life-support from a comatose person with no chance of recovery at the behest of the immediate family. The state charges them with murder through omission of duty. Court held it was not, as a physician does have the right to omit treatment, and the transfer of victims willpower to immediate family was acceptable (b) Cruzan v. Missouri S.C. held that the 14th Amendment doesnt have anything to say about this. It is the states decision whether or not the family members can have the right to decide on behalf of a comatose person who has not given their consent. The legislature should decide this.. (2) Lethal injection is a voluntary act and therefore culpable. (a) Michigan v. Kervorkian he set up a clearly physician-assisted suicide, but the victims themselves were conscious and made the decisions to pull their triggers. His intent was that they die, but his intent was not to commit an act that would kill them so he had mens rea, but didnt have actus reus, or even attempt. He was not the cause of the death. (b) Washington v. Glucksburg Constitution does not protect the right to physician-assisted suicide. C. Mens Rea 1. Actus non facit reum, nisi mens sit rea an unwarrantable act without a vicious will is no crime at all 2. Common law defined it as malice aforethought, evil intent, depraved heart. This has been replaced by the MPC. 3. Why do we care about mens rea? a) Retributivists a person doesnt deserve to be punished if they didnt intend to do something criminal b) Utilitarians not as strong. Society doesnt benefit from incapacitating someone who is not a danger to society but the rest of society does benefit from the power of deterrence. 4. The four gradings of mens rea MPC 2.02 a) There are three parts of the crime for which you have to find mens rea for each element (1) Nature of the conduct

(2) Circumstances around the conduct (3) Result of the conduct (4) Dont have to find if it doesnt make sense (5) When statute says for one, it is for all 2.02(4) b) Purpose/intent (1) Wishes are not intent (2) Motive is not supposed to be relevant, but often is. c) Knowledge (1) Knowledge does not adhere to a reasonableness standard 2.02(7) (2) Awareness of a high probability of the result upgrades from recklessness to knowledge 2.02(7) (a) to get around willful blindness (b) cgUS v. Jewell, with the drugs being smuggled in the car, claimed he didnt know they were in the car (c) Ostriches and careless birds d) Recklessness must be substantial and justifiable e) Negligence gross deviation from what an ordinary person would think/know but really didnt know. (1) Difference between civil and criminal negligence? I believe its really only one of degree (2) How bad is the potential result. (3) Contributory negligence or negligence of 3rd parties is not a defense, unless it is gross negligence (4) Must be gross deviation that creates a substantial and unjustifiable risk.

5. Specific Intent vs. General Intent a) To have specific intent, you have to be committing one crime with intent to do another b) Mistake of fact can be a defense in specific intent even if unreasonable. 6. Mistake of Fact a) Two theories for this: b) MPC 2.04 (1) Ignorance or mistake is a defense if it negates the existence of the requisite mental state. (2) The mistake must be reasonable in recklessness & negligence (3) You are always held to what you thought you did, even if less than what you actually did. c) Common law (1) General if you did something illegal, and have a reasonable mistake of fact defense that would have made the act legal, you are acquitted. True for purpose, too? (2) Moral wrong if you did something illegal, and what you thought you were doing was legal but immoral, you will be held for the illegal act. very subjective (3) Legal wrong if you did something really illegal, and thought you were doing something not-so-illegal, you will be held for the really illegal. d) Violating statutory rape is where this comes up a lot! (1) The infamous Regina v. Prince man takes a 14-year-old away from her father, saying he honestly believed she was 18. (2) White v. State man abandoned his wife, but didnt know she was pregnant; it wads a crime to abandon a pregnant wife. (3) People v. Olsen man had sex with a 13-year-old, who he thought she was over 16. How did they rule? 7. Strict Liability a) Purpose is one of public policy totally deterrence b) SL is in the common law; MPC doesnt like it ever 2.05 c) What are the characteristics? (1) Not a stiff penalty

(2) Easy to follow the rule standards are clear (3) Breaking the rule has the power to harm the public (4) There is no parallel common law rule its a new statute. d) As a general rule, the statute should not have any mens rea mentioned, and preferably actually say strictly liable. This is not the usual assumption about a statute. (1) People v. Morrisette man collecting scrap metal from an Air Force base not held liable under a SL standard, because the court interpreted no mens rea written to mean purpose, knowledge, or recklessness. (2) People v. Staples man with automatic weapon that had been doctored to look like a regular weapon. Court held that we dont want SL standards that get a lot of totally innocent people trapped accidentally. e) Involuntary acts are a defense to SL

f) Arguments against SL standards: (1) Its unjust (2) No statistical evidence that it deters (3) What about forcing defendants to prove there was no negligence? More fair. 8. Mistake of Law a) At common law, its never a defense. b) Two ways to look at it: (1) Cant allow the excuse, or people would know and use it in bad faith (2) Should apply a negligence standard we ultimately want people to act morally rather than just legally. c) Many states have exceptions: (1) If a person shows an exhaustive effort to find out about the law, and then relies in good faith upon the results of that, it would be unfair to punish them. (2) Fair notice and time to correct Lambert v. California (3) Lack of knowledge & understanding mainly for tax law d) MPC is similar, but with more exceptions 2.04(3): (1) Reasonable Reliance on an incorrect law

(2) Must prove mistake of law by a preponderance of the evidence 2.04(4)

III. Rape A. Usual components 1. Sexual Intercourse 2. Force or threat of force 3. Lack of consent B. How to analyze the statutes 1. The gravity of the facts required to be proven 2. Whether and how the crime is split into distinctly graded offense

3. The level of punishment authorized 4. Whether spousal rape is permissible C. Force, nonconsent, & resistance Actus Reus 1. What is force? a) Non-physical threats often not treated as force (1) Sometimes treated as sexual assault (2) Have to look for a word in the statute like duress (a) State v. Thompson principal forced a student to have sex with him upon the threat that otherwise she would not graduate high school. Acquitted for no force element. (b) Mlinarich 14-year-old had sex with a foster parent under the duress that, if she did not, she would be returned to the juvenile detention facility. (3) MPC allowed it as a lower-grade offense with a reasonableness standard 213.1(2)(a) b) Do we need force requirement at all? (1) MTS two juveniles have sex, there is no resistance on her part and no force used on his just the act. She claims it was non-consensual. The NJ Supreme Court held that this could be rape if the evidence showed non-consent. This is heavily factsensitive.

2.

What is consent? a) Common law views on consent: (1) Old common law you had to resist to prove no (2) Modern majority you have to verbalize no (3) Modern minority silence constitutes no (4) Modern super minority (Antioch standard) you need an affirmative yes b) Can you have a mistake of fact defense for consent? See below. c) Resistance is sometimes required as evidence of nonconsent (1) Not when there is evidence of reasonable fear of more force if resisting (a) reasonable man and reasonable woman might be different. Statutes do not address this. (b) State v. Rusk Pat and Eddie at Fells point. She claimed she was afraid because he looked at herafter she drove him home, then she said will you promise not to kill me if I do what you say and he nodded. His story was different. Jury convicted Eddie, and the appeal upheld the jurys fact-finding decision of reasonable fear. (2) Implicit threats encounter the problem of resistance (a) Alston woman who has been sexually abused by a man says no to a final advance, at which point he picks her up, takes off her clothes, and has sex with her. Found not to be rape because there was no resistance. (b) Battered women do not resist pattern behavior (3) Arguments FOR resistance requirement: (a) Makes for clear evidence/defense (b) Has a good chance of stopping a rape before it happens, according to stats (c) Makes for less chance that the innocent will be convicted (4) Arguments AGAINST: (a) Man women dont tell the authorities when they dont have resistance (b) Freeze factor is common

d) Fraud can be considered lack of consent Boro v. Superior Court, woman has sex with an anonymous after doctor said this was necessary to cure a disease he had made up. Found guilty of rape there was no consent e) Mere deceit goes both ways Evans, where man led totally nave girl through Manhattan and eventually to his apartment, where he messed with her mind and then had sex with her, but there was no sign of resistance. Court required proof of criminal intent. f) Unconsciousness as lack of consent all laws agree no consent. g) Intoxication as lack of consent: (1) Old common law & MPC 213.1(1)(b) had to be involuntary (2) Some modern common law severe intoxication is always lack on consent D. Mens Rea for Rape 1. All this talk about consent leads to question of whether they intended to do it without consent.

2. Whats the mens rea you need? a) Traditionally, you needed purpose, knowledge sometimes recklessness b) Modern needs only negligence - Requires a reasonableness factor (1) Commonwealth v. Sherry four doctors take the woman out to the cabin, smoke pot, all have sex with her. They claim she was a willing participant, she claims she was forced. No sign of resistance from her, but she was taken to a remote location. The defense tried to offer a jury instruction that they did not have knowledge - court held there had to be a reasonableness factor.

c) Gradation might be correct here currently, we conclude that if there was a mistake, the rape did not happen. There are a lot of rapes that are not committed by rapists evidence for a negligence standard. d) In a lot of ways, we are looking at contributory & comparative negligence in cases where negligence seems to be the standard. e) Why not recklessness? Seems to focus too much on the mindset of the perpetrator, which has been the problem all along in terms of evidence. Negligence focuses more on the circumstances and on each persons role. 3. Is there a mistake of fact defense? a) Traditionally, it was a defense when honest, even if unreasonable. b) Though frowned upon in modern common law, it is becoming one, when honest & reasonable, as force and resistance requirements disappear. (1) Commonwealth v. Fischer date rape case with vastly different stories at Villanova. He tried to raise a mistake of fact defense as reasonable to a date rape claim, which interested the court (they found it did not relate to his appeal under ineffective counsel) c) Mistake of fact is a defense to larceny (really thought you had permission to take it.) Though seems crass to make it applicable to rape, isnt it? E. The Marital Exemption 1. Mostly done away with now. 2. Gives no marital privilege if separated already a) People v. Liberta woman who had a court order of restraint against her husband was raped in front of their son. Court used the opportunity to axe the marital exemption in the State of NY altogether, even though this woman was clearly protected by the separation portion of the statute. 3. MPC allowed it! 213.6(2) unless separated by judicial order. Extended to nonmarried but living together. F. Problems of Proof 1. Corroboration a) Not technically a requirement anymore b) People naturally ask about corroborative evidence for credibility anyway (1) Some say that people dont believe the woman (2) Some say that juries are always sympathetic to the woman

c) MPC required it - 213.6(5) 2. Shield laws a) Allow women not to have to tell prior sexual history b) Designed because prejudicial effect outweighs probative value c) Only used in some jurisdictions? IV. Homicide A. What is it? 1. Unlawful killing 2. Murder, manslaughter, suicide, infanticide B. Murder 1. What can it be?

a) Need to have malice aforethought (1) Can be express malice intent to kill a specific person (2) Can be death resulting from intent to cause grievous harm (3) Can be reckless indifference to the result of death (4) Death occuring during a felony b) Does not have to be premeditated any longer! c) We have degrees of murder because death is such an extreme option but one we wish to have available. 2. Premeditation a) No longer has to be any period of time b) Helpful to have acts of preparation going to get the gun, loading it, etc. (1) Commonwealth v. Carroll man with schizophrenic wife who is abusing the kids finally gets so angry that he kills her after an argument. He claimed total rage and that it was involuntary, but court did not buy this. They found a sufficient amout of time between decision to kill and killing. (2) Nagging women argument comes up a lot court still holds this to be insufficient provocation. See below.

c) What should you look for to determine premeditation & deliberation? (1) Planning (2) Motive (3) Manner of killing (4) Examples: (a) State v. Guthrie the guy with the fascination about his nose goes nuts when it gets hit by a friend, and stabs friend to death. The court found no planning, no motive, and the sudden and irrational nature of the killing in response to a joke to be examples of no premeditation. (5) Counter-examples: (a) Andersen case (counterexample) man convicted of murder after stabbing a 10-year-old girl more than 60 times. No evidence of planning, motive, or rational manner of killing, yet convicted of murder. Gut reaction of horror can trump all other evidence? (b) State v. Forrest man brings gun to hospital and kills his long-ill father. Definitely had all three, and was convicted but no sense of immorality. Its really a sad case. d) Perhaps we dont look so much at premeditation as we do at moral depravity of the situation. C. Manslaugher 1. What is it? a) No need for malice aforethought (1) Voluntary manslaughter provocation/heat of passion (2) Involuntary manslaughter (a) Death from a lawful act done recklessly (b) Death from an unlawful act that was a misdemeanor

2. Provocation a) This defense has a reasonable man standard. b) The killing is never reasonable! It is whether the provocation was such that a reasonable man would have lost his ability to think rationally. DOESNT mean that it was cause a reasonable man to kill. c) At common law, it was typically catching wife in act of adultery. d) What do you need? (1) Reasonable & adequate provocation (a) Words are not provocation. (i) Girouard man killed wife by stabbing after a provocation in which she called him a lousy fuck. The provocation defense is a reasonable man standard (2) Actor did not have time to cool off (a) Maher v. People man entered saloon to kill the man he thought was sleeping with his wife. Had seen them go into the woods together a half-hour before, then had heard from a friend that they had slept together the day before. Didnt succeed in killing him, but the attempt charge would decrease to an assault and battery if he would not have been convicted of murder. Court found this was a reasonable enough question to go to the jury. (b) US v. Bourdeaux man who heard in the morning that a man had raped his mother 20 years ago killed the man that evening. Convicted of murder too much time had elapsed. (c) State v. Goumingias man sodomized, then two weeks later after much taunting he killed the guy. (d) Man suspected his wife of infidelity for several weeks, then caught her and killed her. Convicted of murder. (e) People v. Berry man waited 20 hours in apartment to kill a woman, but jury let him off on manslaughter as smouldering provocation!!! (3) Some kind of causal link b/w provocation and homicide (a) Mistaking the victim: (i) If defendant legitimately thinks hes killing the guy who provoked him, its a defense. (ii) If someone is so angry that they kill whoevers standing around, its not.

e) The MPC has an exception for severe emotional disturbance with a reasonable excuse: (1) 210.3(1)(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actors situation under the circumstances as he believes them to be. (a) Two tests: is the person several emotionally disturbed? (subjective) (b) Is that disturbance reasonable under the circumstances? (Objective) (2) People v. Cassassa man was dumped by a woman, became obsessed with her, would break into her house and lie naked in her bed finally, came over and tried to get her to date him again, and when she said no, he killed her. Jury found that, while he was obviously disturbed, it did not have a reasonable excuse. (3) What would be a reasonable excuse? Maybe seeing someone kill your child.. f) Cultural differences we often allow this defense. D. Involuntary Manslaughter & Criminal Negligence 1. What the difference between criminal & civil negligence? a) One of gradation only b) Utilitarian purpose of deterrence

c) We sense that criminal behavior should be anti-social behavior, not just very negligent behavior. 2. What are the factors to determine the grading? a) Duty of care b) Likelihood of harm c) The risk that the harm is serious d) The actual awareness of the risk e) Justifiable risk very subjective f) Example: Commonwealth v. Welansky the owner of the bar held liable for the deaths during a fire, and got involuntary manslaughter. His duty of care was questionable (proximate cause); the likelihood of harm was high, the risk that the harm would be serious even higher, but his actual awareness of the risk low/questionable, the justifiable risk low atmosphere and keeping out people sneaking in, more than anything else. 3. Defenses a) Contributory negligence is not a defense. b) MPC does not believe that ignorance excuses criminal negligence Source? (a) US v. Williams Native American couple, uneducated, let their child die because they were afraid the state would take him away if they went to a doctor, and were convicted of manslaughter. Later, the law was changed to include a lower grade of criminal negligence. E. Extreme Recklessness the difference between manslaughter & murder 1. MPC 210.2 makes clear that, in order to turn recklessness into a standard for murder, there has to be more than the usual level of gross deviation from the standard of conduct that a law-abiding person would observe. there has to be extreme indifference to human life. a) Commonwealth v. Malone 17-year-old kills 13-year-old while playing Russian roulette. Pulled the trigger on a 5-cartridge gun three times, and it fired on the third. Court found him guilty of murder, despite no motive, because of the extreme indifference to human life. b) US v. Fleming guy who is high who drives at 100 mph down the wrong side of the GW parkway in a long police chase. Loses control of car and kills another driver. c) In general, most states have made killings while drunk driving murder.

2. Think about a mistake of fact question in these kinds of cases. What if they thought there was low risk? Recklessness requires an objective test. Even if they thought there was 0% chance of harm, would a reasonable person have thought so? F. Felony-Murder Rule 1. Basic Doctrine a) This is a strict-liability concept. Thats why its frustrating. Basically, the MPC is, too.210.2(1)(b). b) The person committing the felony does have to be the proximate cause of the death c) Death must be foreseeable. d) The death does not have to be foreseeable, IF it was natural and probable. (1) Thin-skull doctrine (2) People v. Stamp man robbed an office, and the owner had a heart attack during the robbery. He was prone to them anyway, but thin-skull doctrine applied. e) There is a lesser offense misdemeanor-manslaughter rule 2. Does the felony-murder rule actually deter felons? Probably not. Does the punishment fit the crime? Probably not. 3. 3 requirements to the felony-murder rule a) The felony needs to be inherently dangerous. (1) Some courts feel this should be determined in the abstract (a) People v. Phillipas doctor of chiropractics told a family that he could cure their child, who had cancer, with his treatments. She died 6 months later. The court issued a jury instruction that death during Grand Theft would be f-m. The Supreme Court reversed, as Grand Theft is not an inherently dangerous felony. (b) People v. Satchell carrying a concealed weapon is a felony, but not an inherently dangerous one in the abstract. (2) Some feel the specific facts of the case are essential. (a) People v. Stewart woman convicted of f-m for negligently allowing her child to be a habitual sufferer, which is a felony in RI. Although the crime is not abstractly dangerous to human life, this womans behavior by being a crack addict led to death. b) The act which causes it must itself be reckless endangerment of human life

c) Felony must be independent of the homicide (1) Cant bootstrap like putting a f-m charge on an assault with a deadly weapon. (2) Otherwise, you just succeed in removing the required element of malice (3) Robberies and burglaries are split some states hold that, since these almost always involve and assault, there cant be f-m. Others have held that the building portion makes them independent. d) The felony must have been the direct or proximate cause 4. Different theories of f-m liability a) All theories agree that all the felons can be held liable for a victims death at the hands of one of the co-felons. b) Agency rule felons are ONLY liable for deaths directly caused by the felons or agents of the felons. (1) State v. Canola victim of a robbery shot the co-felon, and the co-felon shot the victim. Both died. The other co-felon was charged with both deaths, but only convicted for the victim the death of the co-felon was dismissed as not being under the f-m doctrine, because an agent did not kill him the victim killed him. c) Proximate cause rule deaths caused by 3rd parties CAN be attributed to the co-felons, as the felony was still the proximate cause of the death. But-for the fact that they engaged in the felony, no one will be dead. (1) There have been exceptions that the felon should not ever be held liable for the death of his co-felon, because that death was. Sortof justified. (2) But as the life of the co-felon isnt completely worthless, and they feel that someone should be blamed, many will rule that the co-felons death should be attributed to the other felons. US v. Martinez (pipe bomb exploded in the car). d) Vicarious liability quite similar to the depraved heart idea. Apart from f-m rule, felons can be held liable for death committed by the victims, when their action is in response to a provocation by the victim. (1) Sortof like self-defense, but can be less provocation. (2) Has to be reasonably provocative though OUTSIDE the felony itself. (3) Taylor v. Superior Court one of the felons was killed by the victim of the robbery (who was not hurt). Can the other felons be held liable for the death? Yes. Any death during a felony which comes out of self-defense provoked by one of the felons, all of them can be held liable. (4) Works to find liability where there isnt any in f-m. Easier to hold them liable.

V. Causation A. What you need for causation 1. But-for test who is in the zone of causation MPC 2.03(1)(a) 2. Proximate cause is a result that is natural, probable, foreseeable a) In MPC, it had to be in the actors mind for crimes of purpose and knowledge, just had to be reasonably foreseeable for crimes of recklessness & negligence 2.03(2)&(3) 3. Common law & intervening causes a) Responsive intervening causes are not a defense b) Coincidental intervening cause is a defense c) Voluntary intervening cause is a defense d) Gross negligence intervening is a defense B. Philosophy of causation 1. Utilitarian want to deter dangerous action, but dont want to make society unable to function because they wont take any risks. Hence foreseeability. 2. Retributive there is more sense that a person deserves punishment if they caused an the social harm, whether or not intended. C. Forseeability and coincidence 1. I think that, if you intended to harm the person, and the harm became greater than what you intended, we dont care if the actual result was foreseeable. Thin-skull doctrine. a) People v. Stamp robber who gives the man a heart-attack. b) Non-deadly assault on a hemophiliac will get a murder charge? c) Assaulting a Jehovahs witness who chooses not to take blood will get a murder charge. 2. If you didnt intend to harm at all if you were negligent, and harm resulted, we use the two tests of but-for and foreseeability. a) People v. Welansky fire in the club that killed so many people. The owner was found to be the proximate cause of the death but-for his instructions, the doors would not have been locked, and it was a foressable result that people would not be able to get out during a fire. b) People v. Acosta the man driving recklessly on the ground in a police chase was found to be the proximate cause of the deaths resulting from a police helicopter collision.

c) People v. Arzon the man who set fire to a building was found to be the proximate cause of the deaths of the firemen, even though they were killed by a second fire set below the defendants fire. But-for the defendants fire, they would not have been in the building, and it was foreseeable that they would respond. 3. Corporations are rarely found criminally liable a) People v. Warner Lambert company which had been warned about the danger of an explosion had that explosion. But the court held that the process was too complicated to determine cause. 4. Intervening Causes a) If the intervening cause was reasonably foreseeable/responsive, then the original actor is held liable b) If the intervening cause was coincidental and unforeseeable, then the original actor is not held liable (1) Man who was robbed left on side of road and hit by a car (2) Man who was assaulted is then killed in the hospital by a rampaging maniac. c) Voluntary choice on part of victim (1) Michigan v. Kervorkian he set everything up, but the victims chose to die (2) Campbell case man convinced a drunk man it was a good idea to kill himself, and sold him the gun. Still found to be a free-will choice of the victim. (3) Stephenson case woman was kidnapped, raped, took pills to try to kill herself, and was not taken by him to a hospital or home for several days. Although she tried to kill herself, court held she was under duress and not responsible for her actions. (4) Remember to separate from thin skull doctrine. d) Medical malpractice (1) If a person was badly wounded and the doctors failed to save him, the person who caused the harm is still the proximate cause. (2) If the wound was not bad, not deadly, and the doctors were grossly negligent, then that can be said to be an intervening cause (3) Generally, if the defendant did INTEND death, then we hold him responsible. e) Omission is not an intervening cause 5. Subsequent Actions that Recklessly Risk the Result why are these different from the voluntary section?

a) Drag racing would not have been doing it but-for the other racer. One case found one racers death not to be the other racers responsibility; another case found the death of one racer and the girl he hit to be the other racers responsibility. b) People v. Kern guy ran across a highway trying to get away from men with baseball bats. Victim was then hit by a car. The guys with bats were held liable for his death, not the driver. The victims death was the but-for and foreseeable result of threatening him. c) Russian Roulette all the participants in the game were held liable for the one who died as a result. Held to be an activity that wouldnt have been done but-for the participation of the others, and it was a foreseeable result. VI. Attempt A. Drizins attempt spectrum Conceiving the crime Mulling it over Decides to do it Starts the prep Completes the prep Begins to commit Completes crime B. Whats the punishment for attempt? 1. Modern common law lower punishment than had the crime been completed 2. MPC (and some states) it should be exactly the same punishment 3. Point of punishment? a) Deterrence make the point that this is unacceptable to even think about b) Incapacitation they are just as dangerous to society as had they done it c) Prevention the earlier we stop the crime, the less likely it will happen d) Retributive we punish according to the degree of blame no action requires some punishment, but not as much as had it been committed. C. Proving specific intent mens rea for attempt 1. The result has to be foreseeable in the actions taken to infer intent a) Smallwood v. State an HIV-positive man who raped three women was not found guilty of attempted murder. Death was not the foresseable result of his actions, which would be a way to infer intent.

2. The standards of proof are higher than for an actual crime. a) Just because, had they succeeded in killing, it would be murder, is no guarantee that they will be convicted of attempted murder because they didnt succeed. 3. Preparation a) Where does preparation stop and attempt start? (1) English common law said the person must have taken the last possible step before commission (2) Modern English law says that the first step in commission of a multi-step crime (like slow poison) constitutes attempt. (3) US is all over the place (4) MPC 5.01(1) A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of a crime, he: (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; OR (b) when causing a particular result, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; OR (c) purposely does or omits to do anything which, under the circumstance as he believes them to be, is an act or omission constituting a substantial step in the court of conduct planned to culminate in his commission of the crime. b) Preparation is needed to show intent (1) Proximity test had to be sufficiently close to their goalt (a) People v. Rizzo guys who planned to rob a man and lay in wait for him, but never even saw him. Not found guilty of attempt. They were too far from their goal (b) Duke case detective solicited a child sex offender online by impersonating a girl and getting him to meet the police, thinking they were the girl. Could not convict of attempt, because there wasnt enough evidence of him with any girl. (2) Equivocality test if the actions could have been innocent, then it doesnt show intent (a) Drizin doesnt like this one. (b) McQuirter v. State black man convicted of attempt to rape after following a woman down the street in Alabama in the 1950s.

(c) US v. Jackson Robbery planned, police got word, caught them around the corner from the bank with masks and weapons in the trunk. Convicted for attempt. (3) MPC test - 5.01(2) (a) right in the middle of equivocality & proximity (b) strongly corroborative of the actors criminal purpose (c) No more workable. D. Abandonment 1. Common law does not recognize abandonment. 2. MPC recognizes limited - 5.01(4) a) Abandonment must be voluntary & complete b) Not a defense if you back off because there is less chance of success. c) Not a defense if you postpone it. 3. Tough defense to use. VII. Justification A. What is justification 1. In the 4 part test, you did not do the social harm 2. Self-defense and necessity are the main justifications B. Self Defense 1. When can you use it? a) Upon threat of deadly force that was b) Imminent c) And Unlawful d) When you believed you were in imminent danger of death or serious harm e) And you believed the response was the only option to save yourself 2. The objective test of the reasonable person applies!

3. What if the belief was unreasonable? (Goetz) a) Under common law, its not a defense (incomplete self-defense) b) Under common law minority view, it should be voluntary manslaughter no malice c) MPC does not require a reasonableness standard - 3.04(1) d) Goetz man shot and killed 4 boys who he believed were trying to rob him. Goetz had a history of being mugged, but admitted the killing was intentional. He was acquitted, as in NY, the use of deadly force is justified if the person believes they are being robbed 4. Are objective and subjective beliefs really any different? 5. Battered women a) Have to take the position of a reasonable person in a battered womans shoes b) Battered women kill in three scenarios: (1) Kill during confrontation can often claim self-defense (State v. Kelly) (2) Kill during non-confrontation (often sleep) can rarely claim self-defense as the harm is not imminent and there is some forethought (State v. Norman). Some argue that the threat is always imminent in these relationships. (3) Kill husband through contracting another man has never been allowed to claim self-defense. It definitely requires forethought and imminence is hard to prove, plus the belief of no other choice is harder to sustain. c) Why they should be allowed to bring in BWS: (1) Establishes credibility of seemingly irrational lifestyle (2) Explains why they did not retreat from beatings in their life (3) They may have had more of an understanding of when the threat was deadly than the average person they had plenty of experience 6. Exceptions to self-defense a) You must retreat if you know you can without risk of being harmed - 3.04(2)(b)(ii) (1) You have to know it is completely safe (2) You are not expected to risk harm by retreating - 3.04(2)(c) (3) This usually does not apply to defending your own home - 3.04(2)(b)(ii)(1) b) Not if you are the aggressor (1) Some states make the defense completely void if you started the confrontation

(2) Other states hold that it is partial self-defense if you started the confrontation, but the other person escalated it to deadly force. 3.04(2)(b)(i) C. Necessity 1. What do you need in order to use it? a) Choice of evils b) There is imminent harm c) The act has a causal link between the actions and stopping the harm d) There were no legal alternatives 2. MPC is close to common law 3.02 3. Its a hard defense to use! a) Civl disobedience has a hard time (Schoon war protest in the IRS, Leno volunteers illegally distributing needles to drug addicts against a statute) b) Reduction of civil rights during war (Israel torture will not be allowed) c) Homeless have a hard time (Borough of Southwark v. Williams homeless break into abandoned buildings) d) Medical might get through (Hutchins man grew marijuana to relieve painful symptoms of medical condition) 4. Prison escapes a) In addition to the above 4 requirements: b) The prisoner is expected to return to the authorities immediately c) There cannot be violence committed during the escape VIII. Excuses A. Intoxication 1. Involuntary a) Only a defense at Common Law if the defendant is so intoxicated that he is complete unaware of actions. Kingston b) MPC 2.08(4) an affirmative defense if actor lacked capacity to appreciate the conducts criminality or to conform to the law.

2. Voluntary a) Not a defense to general intent in common law b) MPC 2.08(1) not a defense unless it negates the element of offense c) MPC 2.08(2) not a defense to crimes of recklessness d) Can be used to mitigate a sentence e) Can be used as an element of defense at common law & MPC for specific intent crimes. Hood f) Prosecutors counter by breaking down the crime into each element to demonstrate attempt. g) All decisions regarding intoxication must be reasonable. (1) Therefore, self-defense doesnt allow intoxication defenses requires two steps that use reason. B. Insanity 1. The law presumes sanity its an affirmative defense 2. Rarely a workable defense 3. Three tests for insanity a) MNaghten test (1) cognitive deficiency, totally incapacitated. (2) Very extreme. (3) No room for volitional difficulties b) Irrisistible impulse test (1) Lightest of the tests (2) Can be temporary (3) Can be volitional as well as cognitive c) MPC test 4.01 lacks substantial capacity either to appreciate the criminality of his conduct or to conform his condut to the requirements of law. (1) Right in between MNaghten & irresistible impulse

4. After Hinkley was acquitted under MPC test, many common laws have returned to MNaghten. 5. Guilty but mentally ill new half-way that still sends the person to prison 6. Diminished capacity is similar to guilty but mentally ill and can be pled in the alternative a) Allows juries not to give the death penalty to the mentally ill or retarded b) Allows juries to make more individualized decisions c) In reality, is just a middle ground that allows jury to put them in prison 7. Punishment for insanity a) Some states have mandatory incapacitation at a mental institution b) Others have psychiatrists recommend c) Not always easy to be released people get confined indeifinitely.